Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Amendments No. 1, 2, 3, 4, and 5 and Order Granting Accelerated Approval of a Proposed Rule Change, as Amended, To Establish the Third Party Connectivity Service, 20923-20926 [2017-08983]

Download as PDF pmangrum on DSK3GDR082PROD with NOTICES Federal Register / Vol. 82, No. 85 / Thursday, May 4, 2017 / Notices clients with information about how their proxies were voted. Rule 206(4)–6 contains ‘‘collection of information’’ requirements within the meaning of the Paperwork Reduction Act. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number. The collection is mandatory and responses to the disclosure requirement are not kept confidential. The respondents are investment advisers registered with the Commission that vote proxies with respect to clients’ securities. Advisory clients of these investment advisers use the information required by the rule to assess investment advisers’ proxy voting policies and procedures and to monitor the advisers’ performance of their proxy voting activities. The information required by Advisers Act rule 204–2, a recordkeeping rule, also is used by the Commission staff in its examination and oversight program. Without the information collected under the rules, advisory clients would not have information they need to assess the adviser’s services and monitor the adviser’s handling of their accounts, and the Commission would be less efficient and effective in its programs. The estimated number of investment advisers subject to the collection of information requirements under the rule is 10,942. It is estimated that each of these advisers is required to spend on average 10 hours annually documenting its proxy voting procedures under the requirements of the rule, for a total burden of 109,420 hours. We further estimate that on average, approximately 292 clients of each adviser would request copies of the underlying policies and procedures. We estimate that it would take these advisers 0.1 hours per client to deliver copies of the policies and procedures, for a total burden of 319,506 hours. Accordingly, we estimate that rule 206(4)–6 results in an annual aggregate burden of collection for SEC-registered investment advisers of a total of 428,926 hours. Records related to an adviser’s proxy voting policies and procedures and proxy voting history are separately required under the Advisers Act recordkeeping rule 204–2 (17 CFR 275.204–2). The standard retention period required for books and records under rule 204–2 is five years, in an easily accessible place, the first two years in an appropriate office of the investment adviser. OMB has previously approved the collection with this retention period. VerDate Sep<11>2014 14:39 May 03, 2017 Jkt 241001 The public may view the background documentation for this information collection at the following Web site, www.reginfo.gov. Comments should be directed to: (i) Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10102, New Executive Office Building, Washington, DC 20503, or by sending an email to: Shagufta_ Ahmed@omb.eop.gov; and (ii) Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549 or send an email to: PRA_Mailbox@ sec.gov. Comments must be submitted to OMB within 30 days of this notice. Dated: April 28, 2017. Eduardo Aleman, Assistant Secretary. [FR Doc. 2017–08971 Filed 5–3–17; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–80558; File No. SR– NASDAQ–2016–120] Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Amendments No. 1, 2, 3, 4, and 5 and Order Granting Accelerated Approval of a Proposed Rule Change, as Amended, To Establish the Third Party Connectivity Service April 28, 2017. I. Introduction On August 16, 2016, the Nasdaq Stock Market LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) 1 of the Securities Exchange Act of 1934 (‘‘Act’’) 2 and Rule 19b–4 thereunder,3 a proposed rule change to establish the third party connectivity service. The proposed rule change was published for comment in the Federal Register on September 2, 2016.4 The Commission received one comment letter regarding the proposal on September 12, 2016.5 Nasdaq responded to the comment letter on October 4, 2016.6 On October 5, 2016, 1 15 U.S.C. 78s(b)(1). U.S.C. 78a. 3 17 CFR 240.19b–4. 4 See Securities Exchange Act Release No. 78713 (August 29, 2016), 81 FR 60768 (‘‘Notice’’). 5 See letter from Eric Swanson, Esq., General Counsel, Bats Global Markets, Inc., to Brent J. Fields, Secretary, Commission, dated September 12, 2016 (‘‘Bats Letter I’’). 6 See letter from Jeffrey S. Davis, Vice President and General Counsel, Nasdaq Stock Market LLC, to 2 15 PO 00000 Frm 00060 Fmt 4703 Sfmt 4703 20923 the Commission designated a longer period for Commission action on the proposed rule change.7 Subsequently, the Commission received three additional comment letters regarding the proposal: One from Virtu Financial, another from Bats responding to Nasdaq’s Letter, and a third from SIFMA.8 On November 30, 2016, the Commission instituted proceedings to determine whether to approve or disapprove the proposed rule change.9 Thereafter, the Commission received comments from IEX, SIFMA, KCG Holdings, and Citadel Securities 10 regarding the proposed rule change and Nasdaq responded to the comments and filed Amendment No. 1.11 On January 31, 2017, the Exchange filed Amendment No. 2 to the proposed rule change.12 The Commission received two comment letters one from Bats and another from IEX on the amended proposal.13 On April 3, 2017, the Exchange filed Amendment No. 3 to the proposed rule change.14 On April 13, 2017, the Exchange filed Amendment No. 4.15 On April 18, 2017, the Brent J. Fields, Secretary, Commission, dated October 4, 2016 (‘‘Nasdaq Letter I’’). 7 See Securities Exchange Act Release No. 79049, 81 FR 70452 (October 12, 2016). 8 See letters from Douglas A. Cifu, Chief Executive Officer, Virtu Financial, dated October 6, 2016 (‘‘Virtu Letter’’), Eric Swanson, General Counsel, Bats Global Markets, Inc., dated October 12, 2016 (‘‘Bats Letter II’’), and Melissa McGregor, Managing Director and Associate General Counsel, Securities Industry and Financial Markets Association (‘‘SIFMA’’), dated November 23, 2016 (‘‘SIFMA Letter I’’), to Brent J. Fields, Secretary, Commission. 9 See Securities Exchange Act Release No. 79431, 81 FR 87981 (December 6, 2016) (‘‘OIP’’). 10 See letters from John Ramsay, Chief Market Policy Officer, IEX Group, Inc. (‘‘IEX’’), dated December 9, 2016 (‘‘IEX Letter I’’), Melissa McGregor, Managing Director and Associate General Counsel, SIFMA, dated December 20, 2016 (‘‘SIFMA Letter II’’), John A. McCarthy, General Counsel, KCG Holdings, Inc. (‘‘KCG Holdings’’), dated December 23, 2016 (‘‘KCG Letter’’), and Adam C. Cooper, senior Managing Director and Chief Legal Officer, Citadel Securities (‘‘Citadel’’), dated December 27, 2016 (‘‘Citadel Letter’’), to Brent J. Fields, Secretary, Commission. 11 See letter from T. Sean Bennett, Principal Associate General Counsel, Nasdaq Inc., to Brent J. Fields, Secretary, Commission, dated January 26, 2017 (‘‘Nasdaq Letter II’’). 12 Amendment No. 1 was missing a required exhibit, therefore it was withdrawn and replaced by Amendment No. 2. See Amendment No. 2. The substance of Amendment No. 1 was the same as the substance of Amendment No. 2. 13 See letters from Eric Swanson, Esq., General Counsel, Bats Global Markets, Inc., dated February 6, 2017 (‘‘Bats Letter III’’) and John Ramsay, Chief Market Policy Officer, IEX, dated February 15, 2017 (‘‘IEX Letter II’’) to Brent J. Fields, Secretary, Commission. 14 See Amendment No. 3. Amendment No. 3 amended the filing to include the Assumption of Liability form. 15 See Amendment No. 4 which was withdrawn and replaced by Amendment No. 5. E:\FR\FM\04MYN1.SGM 04MYN1 20924 Federal Register / Vol. 82, No. 85 / Thursday, May 4, 2017 / Notices Exchange filed Amendment No. 5 to the proposed rule change.16 The Commission is publishing this notice to solicit comment on the proposed rule change, as amended, and is approving the proposed rule change, as amended, on an accelerated basis. pmangrum on DSK3GDR082PROD with NOTICES II. Description of the Proposed Rule Change The Exchange proposes to adopt the third party connectivity service that will segregate connectivity to the Exchange and its proprietary data feeds from connectivity to third party services and data feeds, including the UTP SIP data feeds.17 Nasdaq states that this segregation is necessary because of increased capacity requirements, noting recent changes to the Consolidated Tape Association (‘‘CTA’’) and Options Price Reporting Authority (‘‘OPRA’’) feeds 18 as well as planned changes to the Unlisted Trading Privileges (‘‘UTP’’) Plan data feeds.19 The third party connectivity service will be available to non-co-location and co-location customers and will enable customers to receive third party market data feeds, including SIP data, and other non-exchange services independent of Nasdaq proprietary feeds. In the proposal, Nasdaq stated that customers using 1Gb circuits to connect to the UTP SIP feeds would need to upgrade to a 10Gb Ultra circuit because of the increase in bandwidth requirements for the new feeds.20 Customers seeking connectivity to the Exchange and its 16 See Amendment No. 5. Amendment No. 5 amended the text of the proposed rule change in response to the comments and withdrew Amendment No. 4. Amendment No. 4 included the same substantive changes to the rule change however, it was not properly filed. 17 Third party services include not only SIP data feeds, but also data feeds from other exchanges and markets. For example, third party connectivity will support connectivity to the FINRA/Nasdaq Trade Reporting Facility, BATS Depth Feeds, and NYSE Feeds. See Notice, 81 FR at 60769 n.10. 18 See https://www.nyse.com/publicdocs/ctaplan/ notifications/traderupdate/ CTA%20SIP%201Q16%20Consolidated %20Data%20Operating%20Metrics%20Report.pdf; see also, http://www.opradata.com/specs/opra_ bandwidth_apr2016.pdf. 19 The UTP SIP feeds are comprised of a UTP Quote Data Feed (‘‘UQDF’’) and a UTP Trade Data Feed (‘‘UTDF’’). The UQDF provides continuous quotations from all market centers trading Nasdaqlisted securities. The UTDF provides continuous last sale information from all market centers trading Nasdaq-listed securities. See http:// www.utpplan.com/. 20 In response to comments, Nasdaq amended the filing to permit the use of 1Gb Ultra connections and proposed that subscribers sign an Assumption of Liability form indicating that they were aware of the risks of using a 1Gb connection and would hold Nasdaq harmless. See Amendments No. 2 and 3. Nasdaq amended the proposal again to replace the Assumption of Liability form with the Capacity Acknowledgement form. See Amendment No. 5. VerDate Sep<11>2014 14:39 May 03, 2017 Jkt 241001 proprietary data feeds may continue to do so through the existing connectivity options under Rule 7034(b) and Rule 7051(a).21 Customers that do not wish to subscribe to the third party connectivity service may connect through an extranet provider or a market data redistributor. The Exchange is proposing to offer services currently available to direct connectivity subscribers under Rule 7051 to subscribers to third party connectivity services because Nasdaq believes they may have the same connectivity needs as customers of the existing direct connectivity service.22 The Exchange proposes to assess fees for the third party connectivity service. The fee for installation of either a 10Gb Ultra or 1Gb Ultra third party services co-location or direct connectivity subscription would be $1,500. The monthly fee for a 10Gb Ultra connection would be $5,000 and for a 1Gb Ultra connection the fee would be $2,000. The proposal as amended provides that every customer may receive two third party circuit connections free of charge if used solely to receive the UTP SIP feeds (i.e., the UTDF and UQDF feeds) (‘‘UTP-only use’’).23 The Exchange proposes to provide UTP-only connectivity beyond the two free connections, for an installation fee of $100 per connection and an ongoing monthly fee of $100 per connection and will offer UTP-only connectivity through either a 1Gb Ultra or a 10Gb Ultra connection.24 The Exchange also proposes to allow customers to elect to receive UTP SIP data through a 1Gb Ultra option in lieu of the 10Gb Ultra option if the customer acknowledges that the subscriber is aware of the risks associated with such an election.25 Finally, the Exchange proposes to extend the waiver of the fees from February 28, 2017, through the end of April 2017. III. Discussion and Commission Findings After careful review, the Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. In particular, the Commission finds that 21 See Notice, 81 FR at 60769. id. 23 See Amendment No. 5. 24 See Amendment No. 5. 25 See Amendment No. 5. Under the proposal, as amended by Amendment No. 5, the Exchange replaced the Assumption of Liability form with a Capacity Acknowledgement form, requiring each subscriber that elects to use the 1Gb Ultra connectivity to receive UTP-only data to acknowledge the risks associated with such connectivity. 22 See PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 the proposed rule change is consistent with Section 6(b)(4) of the Act,26 which requires that the rules of a national securities exchange provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities, Section 6(b)(5) of the Act,27 which requires, among other things, that the rules of a national securities exchange be 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, to protect investors and the public interest, and not to permit unfair discrimination between customers, issuers, brokers, or dealers, and Section 6(b)(8) of the Act,28 which requires that the rules of a national securities exchange not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. As noted above, the Commission received ten comment letters from six commenters on the proposed rule change.29 All of the commenters object to the proposal. The Commission also received two response letters from Nasdaq: One responding to Bats, the second responding to IEX, SIFMA, KCG Holdings, and Citadel.30 In addition, Nasdaq amended its proposal to address the concerns raised by commenters.31 The commenters raise three main concerns with the proposal. First, commenters assert that the proposal addresses a matter properly governed by the UTP Plan, the terms of which require approval of the proposal by the UTP Operating Committee.32 Second, the commenters assert that Nasdaq would benefit from the proposal to the detriment of customers seeking access to UTP SIP data because subscribers who wish to continue to receive the UTP SIP feed would incur additional costs to receive data that they currently receive in a bundle with Nasdaq proprietary 26 15 U.S.C. 78f(b)(4). U.S.C. 78f(b)(5). 28 15 U.S.C. 78f(b)(8). 29 See supra notes 5, 8, 10, 13. 30 See Nasdaq Letters I and II. 31 See Amendments No. 2, 3 and 5. 32 The Joint Self-Regulatory Organization Plan Governing the Collection, Consolidation and Dissemination of Quotation and Transaction Information for Nasdaq-Listed Securities Traded on Exchanges on an Unlisted Trading Privileges Basis (‘‘The UTP Plan’’) is administered by its participants through an operating committee (‘‘UTP Operating Committee’’) which is composed of one representative designated by each participant of the plan. See, e.g., Sections IV.A., B.3, and IV.C.2 of the UTP Plan, and Securities Exchange Act Release No. 55647 (April 19, 2007), 72 FR 20891 (April 26, 2007). 27 15 E:\FR\FM\04MYN1.SGM 04MYN1 Federal Register / Vol. 82, No. 85 / Thursday, May 4, 2017 / Notices pmangrum on DSK3GDR082PROD with NOTICES data.33 Third, the commenters question the need for enhanced capacity.34 Commenters argue that the proposal constitutes an access fee for direct access to UTP data which must be approved by the UTP operating committee under the UTP Plan.35 In addition, according to commenters, the proposal targets UTP data recipients and extends the scope of the UTP system to include customer connectivity, because Nasdaq is the sole provider of direct access to UTP data, and therefore firms seeking direct access to UTP data would be required to subscribe to and pay for the proposed third party connectivity service.36 In response, Nasdaq notes that it has controlled the network and network connectivity without input from the UTP operating committee for over 25 years,37 and that neither the UTP Plan nor the processor agreement grants the UTP operating committee authority over the network or network connectivity associated with SIP data.38 Nasdaq also asserts that the proposal does not target UTP data recipients because UTP SIP data is combined with, and carried on, the same network as data from other sources.39 To further address these concerns, Nasdaq filed Amendment No. 5.40 First, Nasdaq will offer every customer two third party connections for UTP-only use at no cost.41 Second, Nasdaq will allow customers to select a 1Gb Ultra or 10Gb Ultra port to connect to SIP data, both for the free connections provided by Nasdaq and for additional connections to which they subscribe.42 Furthermore, connections for UTP-only use beyond the two free connections will be available for $100 a month in addition to a $100 installation fee, 33 See e.g., Bats Letter I at 3–5; Bats Letter II at 2–3; Bats Letter III at 3–4; Virtu Letter at 1–2; SIFMA Letter I at 2–3; IEX Letter I at 1; SIFMA Letter II at 2; KCG Letter at 2; Citadel Letter at 2; IEX Letter II at 2. 34 See Bats Letter I at 3–5; Bats Letter II at 2–3; Bats Letter III at 3–4; Virtu Letter at 1–2; SIFMA Letter I at 2–3; IEX Letter I at 1; SIFMA Letter II at 2; KCG Letter at 2; Citadel Letter at 2; IEX Letter II at 2. 35 See Bats Letter I at 1–2; Bats Letter II at 3–4; Bats Letter III at 2–3; SIFMA Letter I at 2; IEX Letter I at 1; SIFMA Letter II at 2; KCG Letter at 3–4; IEX Letter II at 1–2. 36 See e.g., Bats Letter I at 3–5; Bats Letter II at 2–3; Bats Letter III at 3–4; Virtu Letter at 1–2; SIFMA Letter I at 2–3; IEX Letter I at 1; SIFMA Letter II at 2; KCG Letter at 2; Citadel Letter at 2; IEX Letter II at 2. 37 See Nasdaq Letter I at 2–4. 38 Nasdaq noted that the UTP Plan does not explicitly address connectivity fees. See Nasdaq Letter I at 2. 39 See Nasdaq Letter I at 3. 40 See Amendment No. 5. 41 See e.g. Nasdaq Letter II at 2–3; Amendment No. 5. 42 See id. VerDate Sep<11>2014 14:39 May 03, 2017 Jkt 241001 significantly below the charge to receive Nasdaq proprietary data.43 Subscribers electing to receive UTP-only data using a 1Gb Ultra connection would be required to complete a Capacity Acknowledgement form acknowledging in writing the risks associated with such connectivity, though not relieving Nasdaq of liability.44 Nasdaq believes these changes are responsive to the concerns raised by the commenters.45 All commenters challenge the technical necessity of the proposal. Bats asserts that the proposal is technically unnecessary and merely an attempt to increase revenues by charging fees for UTP access. More specifically, Bats argues that Nasdaq SIP bandwidth recommendations are excessive, inconsistent with current peak UTP message traffic, and much higher than recommendations for Nasdaq’s own proprietary data products.46 Citadel states that ‘‘Nasdaq has failed to provide a reasonable justification for requiring market participants to purchase a high bandwidth 10Gb Ultra connection’’ to access SIP data.47 In response, Nasdaq states that it has ‘‘done substantial analysis to support the recommendation and it believes the recommendation is consistent with its limited experience with the new Processor.’’ 48 Nasdaq also states that ‘‘[d]uring a one month period (23 trading days) this summer, Nasdaq observed the new UTP Trade Data binary feed exceeding a 1G capacity for a 1 microsecond timeframe in 18 of the trading days. If you add the new UTP Quote Data binary feed to that same connection, the combined feeds exceed 1G capacity for 1 microsecond timeframe in 23 trading days.’’ 49 In addition, Nasdaq asserts that the UTP operating committee has ‘‘input into the bandwidth recommendation’’ and could act to lower it further.50 Bats responds stating its views that Nasdaq had not demonstrated that the proposal was technically necessary, because in Bat’s view, using a one microsecond burst to determine a bandwidth recommendation is misplaced, as the observed peak is not sustained over a 43 See id. Exhibit 3 to Amendment No. 5. 45 See Nasdaq Letter II. 46 See Bats Letter I at 3–5; Bats Letter II at 2–3; Bats Letter III at 3–4. Virtu, SIFMA, KCG Holdings, and IEX agree with Bats. See, e.g., Virtu Letter at 1–2; SIFMA Letter I at 2–3; IEX Letter I at 1; SIFMA Letter II at 2; KCG Letter at 2; IEX Letter II at 2. 47 See Citadel Letter at 2. See also Amendment No. 2 which amended the filing to permit the use of 1Gb connections. 48 See Nasdaq Letter I at 5. 49 See id. 50 See id. 44 See PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 20925 full second.51 Bats states that Nasdaq’s bandwidth recommendation reflects the maximum burst rate capability of the new system rather than the current capacity requirement.52 SIFMA agrees with Bats on this issue, stating that Nasdaq has not provided any ‘‘reasonable justification for requiring member firms to use a 10Gb connection to receive SIP data.’’ 53 SIFMA states that there is no compelling necessity, either technical or otherwise, for creating a separate connection for access to the SIP data.54 Nasdaq disagrees with these arguments, stating its belief that they are reckless, because ‘‘there is no disagreement that data feed requirements have increased significantly, and will continue to do so.’’ 55 Nasdaq further states that it continues to observe spikes in the UTP feeds that exceed 1Gb, justifying the 10Gb offering.56 Nasdaq also asserts that the proposal would segregate data for network resiliency and ensure that connectivity is adequate for intended use. In addition, Nasdaq states that it developed the isolated the network carrying the SIP data to reduce potential conflicts of interest arising from Nasdaq’s operation of the Processor and its exchanges.57 Nasdaq responded to the comments and amended the filing such that any customer that wishes to receive only the data from the UTP SIP will be able receive two UTP-only data connections free of charge via a 1Gb Ultra or 10Gb Ultra connection.58 Additional connections for UTP-only use will be available for $100 per month with an installation fee of $100 per port. Nasdaq represents that those costs are significantly lower than the proposed fees to be assessed for other third party connectivity and will cover some of the costs associated with providing the connectivity.59 Nasdaq noted that current subscribers to three or more connections under Rules 7034(b) and 7051 that contain a mix of Nasdaq proprietary data and UTP data will pay more under the proposal to receive the same data, however, Nasdaq believes that such a fee increase is reasonable in light of the costs incurred by the Exchange in offering separate networks for UTP data feed connectivity and Nasdaq’s proprietary data feed 51 See Bats Letter II at 2–3. id. 53 See SIFMA Letter I at 2. 54 See id. 55 See Nasdaq Letter II at 2. 56 See id. 57 See Nasdaq Letter II at 3. 58 See Amendment No. 5 p. 6. 59 See Amendment No. 5 p. 7 and 10. 52 See E:\FR\FM\04MYN1.SGM 04MYN1 20926 Federal Register / Vol. 82, No. 85 / Thursday, May 4, 2017 / Notices connectivity, which will assist subscribers with risk management.60 Further, Nasdaq removed the requirement that subscribers absolve Nasdaq of liability if they take a 1Gb Ultra connection.61 Nasdaq noted that the UTP Plan does not explicitly address connectivity fees. As to concerns raised by the commenters that Nasdaq has not substantiated the need for the third party connectivity service, Nasdaq noted that the ‘‘UTP Operating Committee has had and continues to have input into the bandwidth recommendation’’ 62 and states that Nasdaq lowered the recommendation in response to the Committee’s recommendation and would be ready to lower the recommendation again if the operating committee were to direct it to do so.63 In addition, as noted above, Nasdaq amended the proposal to provide two connections for UTP SIP data free of charge and additional connections at lower fees that reflect some of the costs associated with providing the connectivity.64 The Commission believes that Nasdaq has adequately addressed the concerns raised by the comments in its response letters and its amendments to the proposal.65 IV. Solicitation of Comments on the Proposal as Amended Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the filing, as amended, 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–2016–120 on the subject line. pmangrum on DSK3GDR082PROD with NOTICES 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–2016–120. This file number should be included on the subject line if email is used. To help the 60 See Amendment No. 5. Amendment No. 5. 62 See Nasdaq Letter I at 5. 63 See id. 64 See Nasdaq Letter I and Nasdaq Letter II; Amendment No. 5. 65 See Nasdaq Letter I and Nasdaq Letter II and amendments to the proposal. 61 See VerDate Sep<11>2014 14:39 May 03, 2017 Jkt 241001 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 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– NASDAQ–2016–120 and should be submitted on or before May 25, 2017. V. Accelerated Approval of Proposed Rule Change, as Amended The Commission finds good cause to approve the proposed rule change, as amended, prior to the 30th day after the date of publication of the notice of the amended proposal in the Federal Register. As noted above, Nasdaq amended the proposal to respond to the concerns raised by the commenters. Specifically, the Exchange is proposing to offer two free UTP-only connections via a 1Gb Ultra or 10Gb Ultra port. Nasdaq also replaced the Assumption of Liability form with a Capacity Acknowledgement form, such that customers are no longer required to hold Nasdaq harmless if they choose to take a 1Gb Ultra connection. The Exchange also proposes to provide additional UTP-only connectivity for an installation fee of $100 per connection and an ongoing monthly fee of $100 per connection. Because these changes address concerns raised by the commenters, the Commission finds good cause for approving the proposed rule change, as amended, on an accelerated basis, pursuant to Section 19(b)(2) of the Act.66 66 15 PO 00000 U.S.C. 78s(b)(2). Frm 00063 Fmt 4703 Sfmt 4703 VI. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act, that the proposed rule change (SR–NASDAQ– 2016–120), as amended, be, and hereby is, approved. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.67 Eduardo A. Aleman, Assistant Secretary. [FR Doc. 2017–08983 Filed 5–3–17; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–80550; File No. SR– NYSEMKT–2016–99] Self-Regulatory Organizations; NYSE MKT LLC; Notice of Designation of a Longer Period for Commission Action on Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change Amending Rule 104— Equities To Delete Subsection (g)(i)(A)(III) Prohibiting Designated Market Makers From Establishing a New High (Low) Price on the Exchange in a Security the DMM Has a Long (Short) Position During the Last Ten Minutes Prior to the Close of Trading April 28, 2017. On October 27, 2016, NYSE MKT (‘‘NYSE MKT’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change amending Rule 104—Equities to delete subsection (g)(i)(A)(III), which prohibits Designated Market Makers (‘‘DMMs’’) from establishing, during the last ten minutes of trading before the close, a new high (low) price for the day on the Exchange in a security in which the DMM has a long (short) position. The proposed rule change was published for comment in the Federal Register on November 17, 2016.3 On December, 20, 2016, the Commission extended to February 15, 2017, the time period in which to approve the proposal, disapprove the proposal, or institute proceedings to determine whether to approve or disapprove the proposal.4 On February 15, 2017, the Commission instituted 67 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 3 See Securities Exchange Act Release No. 79283 (Nov. 10, 2016), 81 FR 81210 (Nov. 17, 2016). 4 See Securities Exchange Act Release No. 79611 (Dec. 20, 2016), 81 FR 95205 (Dec. 27, 2016). 1 15 E:\FR\FM\04MYN1.SGM 04MYN1

Agencies

[Federal Register Volume 82, Number 85 (Thursday, May 4, 2017)]
[Notices]
[Pages 20923-20926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08983]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-80558; File No. SR-NASDAQ-2016-120]


Self-Regulatory Organizations; The Nasdaq Stock Market LLC; 
Notice of Filing of Amendments No. 1, 2, 3, 4, and 5 and Order Granting 
Accelerated Approval of a Proposed Rule Change, as Amended, To 
Establish the Third Party Connectivity Service

April 28, 2017.

I. Introduction

    On August 16, 2016, the Nasdaq Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) \1\ of the Securities 
Exchange Act of 1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ a 
proposed rule change to establish the third party connectivity service. 
The proposed rule change was published for comment in the Federal 
Register on September 2, 2016.\4\ The Commission received one comment 
letter regarding the proposal on September 12, 2016.\5\ Nasdaq 
responded to the comment letter on October 4, 2016.\6\ On October 5, 
2016, the Commission designated a longer period for Commission action 
on the proposed rule change.\7\ Subsequently, the Commission received 
three additional comment letters regarding the proposal: One from Virtu 
Financial, another from Bats responding to Nasdaq's Letter, and a third 
from SIFMA.\8\ On November 30, 2016, the Commission instituted 
proceedings to determine whether to approve or disapprove the proposed 
rule change.\9\ Thereafter, the Commission received comments from IEX, 
SIFMA, KCG Holdings, and Citadel Securities \10\ regarding the proposed 
rule change and Nasdaq responded to the comments and filed Amendment 
No. 1.\11\ On January 31, 2017, the Exchange filed Amendment No. 2 to 
the proposed rule change.\12\ The Commission received two comment 
letters one from Bats and another from IEX on the amended proposal.\13\ 
On April 3, 2017, the Exchange filed Amendment No. 3 to the proposed 
rule change.\14\ On April 13, 2017, the Exchange filed Amendment No. 
4.\15\ On April 18, 2017, the

[[Page 20924]]

Exchange filed Amendment No. 5 to the proposed rule change.\16\ The 
Commission is publishing this notice to solicit comment on the proposed 
rule change, as amended, and is approving the proposed rule change, as 
amended, on an accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
    \4\ See Securities Exchange Act Release No. 78713 (August 29, 
2016), 81 FR 60768 (``Notice'').
    \5\ See letter from Eric Swanson, Esq., General Counsel, Bats 
Global Markets, Inc., to Brent J. Fields, Secretary, Commission, 
dated September 12, 2016 (``Bats Letter I'').
    \6\ See letter from Jeffrey S. Davis, Vice President and General 
Counsel, Nasdaq Stock Market LLC, to Brent J. Fields, Secretary, 
Commission, dated October 4, 2016 (``Nasdaq Letter I'').
    \7\ See Securities Exchange Act Release No. 79049, 81 FR 70452 
(October 12, 2016).
    \8\ See letters from Douglas A. Cifu, Chief Executive Officer, 
Virtu Financial, dated October 6, 2016 (``Virtu Letter''), Eric 
Swanson, General Counsel, Bats Global Markets, Inc., dated October 
12, 2016 (``Bats Letter II''), and Melissa McGregor, Managing 
Director and Associate General Counsel, Securities Industry and 
Financial Markets Association (``SIFMA''), dated November 23, 2016 
(``SIFMA Letter I''), to Brent J. Fields, Secretary, Commission.
    \9\ See Securities Exchange Act Release No. 79431, 81 FR 87981 
(December 6, 2016) (``OIP'').
    \10\ See letters from John Ramsay, Chief Market Policy Officer, 
IEX Group, Inc. (``IEX''), dated December 9, 2016 (``IEX Letter 
I''), Melissa McGregor, Managing Director and Associate General 
Counsel, SIFMA, dated December 20, 2016 (``SIFMA Letter II''), John 
A. McCarthy, General Counsel, KCG Holdings, Inc. (``KCG Holdings''), 
dated December 23, 2016 (``KCG Letter''), and Adam C. Cooper, senior 
Managing Director and Chief Legal Officer, Citadel Securities 
(``Citadel''), dated December 27, 2016 (``Citadel Letter''), to 
Brent J. Fields, Secretary, Commission.
    \11\ See letter from T. Sean Bennett, Principal Associate 
General Counsel, Nasdaq Inc., to Brent J. Fields, Secretary, 
Commission, dated January 26, 2017 (``Nasdaq Letter II'').
    \12\ Amendment No. 1 was missing a required exhibit, therefore 
it was withdrawn and replaced by Amendment No. 2. See Amendment No. 
2. The substance of Amendment No. 1 was the same as the substance of 
Amendment No. 2.
    \13\ See letters from Eric Swanson, Esq., General Counsel, Bats 
Global Markets, Inc., dated February 6, 2017 (``Bats Letter III'') 
and John Ramsay, Chief Market Policy Officer, IEX, dated February 
15, 2017 (``IEX Letter II'') to Brent J. Fields, Secretary, 
Commission.
    \14\ See Amendment No. 3. Amendment No. 3 amended the filing to 
include the Assumption of Liability form.
    \15\ See Amendment No. 4 which was withdrawn and replaced by 
Amendment No. 5.
    \16\ See Amendment No. 5. Amendment No. 5 amended the text of 
the proposed rule change in response to the comments and withdrew 
Amendment No. 4. Amendment No. 4 included the same substantive 
changes to the rule change however, it was not properly filed.
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II. Description of the Proposed Rule Change

    The Exchange proposes to adopt the third party connectivity service 
that will segregate connectivity to the Exchange and its proprietary 
data feeds from connectivity to third party services and data feeds, 
including the UTP SIP data feeds.\17\ Nasdaq states that this 
segregation is necessary because of increased capacity requirements, 
noting recent changes to the Consolidated Tape Association (``CTA'') 
and Options Price Reporting Authority (``OPRA'') feeds \18\ as well as 
planned changes to the Unlisted Trading Privileges (``UTP'') Plan data 
feeds.\19\
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    \17\ Third party services include not only SIP data feeds, but 
also data feeds from other exchanges and markets. For example, third 
party connectivity will support connectivity to the FINRA/Nasdaq 
Trade Reporting Facility, BATS Depth Feeds, and NYSE Feeds. See 
Notice, 81 FR at 60769 n.10.
    \18\ See https://www.nyse.com/publicdocs/ctaplan/notifications/traderupdate/CTA%20SIP%201Q16%20Consolidated%20Data%20Operating%20Metrics%20Report.pdf; see also, http://www.opradata.com/specs/opra_bandwidth_apr2016.pdf.
    \19\ The UTP SIP feeds are comprised of a UTP Quote Data Feed 
(``UQDF'') and a UTP Trade Data Feed (``UTDF''). The UQDF provides 
continuous quotations from all market centers trading Nasdaq-listed 
securities. The UTDF provides continuous last sale information from 
all market centers trading Nasdaq-listed securities. See http://www.utpplan.com/.
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    The third party connectivity service will be available to non-co-
location and co-location customers and will enable customers to receive 
third party market data feeds, including SIP data, and other non-
exchange services independent of Nasdaq proprietary feeds. In the 
proposal, Nasdaq stated that customers using 1Gb circuits to connect to 
the UTP SIP feeds would need to upgrade to a 10Gb Ultra circuit because 
of the increase in bandwidth requirements for the new feeds.\20\ 
Customers seeking connectivity to the Exchange and its proprietary data 
feeds may continue to do so through the existing connectivity options 
under Rule 7034(b) and Rule 7051(a).\21\ Customers that do not wish to 
subscribe to the third party connectivity service may connect through 
an extranet provider or a market data redistributor. The Exchange is 
proposing to offer services currently available to direct connectivity 
subscribers under Rule 7051 to subscribers to third party connectivity 
services because Nasdaq believes they may have the same connectivity 
needs as customers of the existing direct connectivity service.\22\
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    \20\ In response to comments, Nasdaq amended the filing to 
permit the use of 1Gb Ultra connections and proposed that 
subscribers sign an Assumption of Liability form indicating that 
they were aware of the risks of using a 1Gb connection and would 
hold Nasdaq harmless. See Amendments No. 2 and 3. Nasdaq amended the 
proposal again to replace the Assumption of Liability form with the 
Capacity Acknowledgement form. See Amendment No. 5.
    \21\ See Notice, 81 FR at 60769.
    \22\ See id.
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    The Exchange proposes to assess fees for the third party 
connectivity service. The fee for installation of either a 10Gb Ultra 
or 1Gb Ultra third party services co-location or direct connectivity 
subscription would be $1,500. The monthly fee for a 10Gb Ultra 
connection would be $5,000 and for a 1Gb Ultra connection the fee would 
be $2,000.
    The proposal as amended provides that every customer may receive 
two third party circuit connections free of charge if used solely to 
receive the UTP SIP feeds (i.e., the UTDF and UQDF feeds) (``UTP-only 
use'').\23\ The Exchange proposes to provide UTP-only connectivity 
beyond the two free connections, for an installation fee of $100 per 
connection and an ongoing monthly fee of $100 per connection and will 
offer UTP-only connectivity through either a 1Gb Ultra or a 10Gb Ultra 
connection.\24\ The Exchange also proposes to allow customers to elect 
to receive UTP SIP data through a 1Gb Ultra option in lieu of the 10Gb 
Ultra option if the customer acknowledges that the subscriber is aware 
of the risks associated with such an election.\25\ Finally, the 
Exchange proposes to extend the waiver of the fees from February 28, 
2017, through the end of April 2017.
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    \23\ See Amendment No. 5.
    \24\ See Amendment No. 5.
    \25\ See Amendment No. 5. Under the proposal, as amended by 
Amendment No. 5, the Exchange replaced the Assumption of Liability 
form with a Capacity Acknowledgement form, requiring each subscriber 
that elects to use the 1Gb Ultra connectivity to receive UTP-only 
data to acknowledge the risks associated with such connectivity.
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III. Discussion and Commission Findings

    After careful review, the Commission finds that the proposed rule 
change, as amended, is consistent with the requirements of the Act and 
the rules and regulations thereunder applicable to a national 
securities exchange. In particular, the Commission finds that the 
proposed rule change is consistent with Section 6(b)(4) of the Act,\26\ 
which requires that the rules of a national securities exchange provide 
for the equitable allocation of reasonable dues, fees, and other 
charges among its members and issuers and other persons using its 
facilities, Section 6(b)(5) of the Act,\27\ which requires, among other 
things, that the rules of a national securities exchange be 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, to protect investors and the public interest, and not to 
permit unfair discrimination between customers, issuers, brokers, or 
dealers, and Section 6(b)(8) of the Act,\28\ which requires that the 
rules of a national securities exchange not impose any burden on 
competition not necessary or appropriate in furtherance of the purposes 
of the Act.
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    \26\ 15 U.S.C. 78f(b)(4).
    \27\ 15 U.S.C. 78f(b)(5).
    \28\ 15 U.S.C. 78f(b)(8).
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    As noted above, the Commission received ten comment letters from 
six commenters on the proposed rule change.\29\ All of the commenters 
object to the proposal. The Commission also received two response 
letters from Nasdaq: One responding to Bats, the second responding to 
IEX, SIFMA, KCG Holdings, and Citadel.\30\ In addition, Nasdaq amended 
its proposal to address the concerns raised by commenters.\31\
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    \29\ See supra notes 5, 8, 10, 13.
    \30\ See Nasdaq Letters I and II.
    \31\ See Amendments No. 2, 3 and 5.
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    The commenters raise three main concerns with the proposal. First, 
commenters assert that the proposal addresses a matter properly 
governed by the UTP Plan, the terms of which require approval of the 
proposal by the UTP Operating Committee.\32\ Second, the commenters 
assert that Nasdaq would benefit from the proposal to the detriment of 
customers seeking access to UTP SIP data because subscribers who wish 
to continue to receive the UTP SIP feed would incur additional costs to 
receive data that they currently receive in a bundle with Nasdaq 
proprietary

[[Page 20925]]

data.\33\ Third, the commenters question the need for enhanced 
capacity.\34\
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    \32\ The Joint Self-Regulatory Organization Plan Governing the 
Collection, Consolidation and Dissemination of Quotation and 
Transaction Information for Nasdaq-Listed Securities Traded on 
Exchanges on an Unlisted Trading Privileges Basis (``The UTP Plan'') 
is administered by its participants through an operating committee 
(``UTP Operating Committee'') which is composed of one 
representative designated by each participant of the plan. See, 
e.g., Sections IV.A., B.3, and IV.C.2 of the UTP Plan, and 
Securities Exchange Act Release No. 55647 (April 19, 2007), 72 FR 
20891 (April 26, 2007).
    \33\ See e.g., Bats Letter I at 3-5; Bats Letter II at 2-3; Bats 
Letter III at 3-4; Virtu Letter at 1-2; SIFMA Letter I at 2-3; IEX 
Letter I at 1; SIFMA Letter II at 2; KCG Letter at 2; Citadel Letter 
at 2; IEX Letter II at 2.
    \34\ See Bats Letter I at 3-5; Bats Letter II at 2-3; Bats 
Letter III at 3-4; Virtu Letter at 1-2; SIFMA Letter I at 2-3; IEX 
Letter I at 1; SIFMA Letter II at 2; KCG Letter at 2; Citadel Letter 
at 2; IEX Letter II at 2.
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    Commenters argue that the proposal constitutes an access fee for 
direct access to UTP data which must be approved by the UTP operating 
committee under the UTP Plan.\35\ In addition, according to commenters, 
the proposal targets UTP data recipients and extends the scope of the 
UTP system to include customer connectivity, because Nasdaq is the sole 
provider of direct access to UTP data, and therefore firms seeking 
direct access to UTP data would be required to subscribe to and pay for 
the proposed third party connectivity service.\36\
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    \35\ See Bats Letter I at 1-2; Bats Letter II at 3-4; Bats 
Letter III at 2-3; SIFMA Letter I at 2; IEX Letter I at 1; SIFMA 
Letter II at 2; KCG Letter at 3-4; IEX Letter II at 1-2.
    \36\ See e.g., Bats Letter I at 3-5; Bats Letter II at 2-3; Bats 
Letter III at 3-4; Virtu Letter at 1-2; SIFMA Letter I at 2-3; IEX 
Letter I at 1; SIFMA Letter II at 2; KCG Letter at 2; Citadel Letter 
at 2; IEX Letter II at 2.
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    In response, Nasdaq notes that it has controlled the network and 
network connectivity without input from the UTP operating committee for 
over 25 years,\37\ and that neither the UTP Plan nor the processor 
agreement grants the UTP operating committee authority over the network 
or network connectivity associated with SIP data.\38\ Nasdaq also 
asserts that the proposal does not target UTP data recipients because 
UTP SIP data is combined with, and carried on, the same network as data 
from other sources.\39\ To further address these concerns, Nasdaq filed 
Amendment No. 5.\40\ First, Nasdaq will offer every customer two third 
party connections for UTP-only use at no cost.\41\ Second, Nasdaq will 
allow customers to select a 1Gb Ultra or 10Gb Ultra port to connect to 
SIP data, both for the free connections provided by Nasdaq and for 
additional connections to which they subscribe.\42\ Furthermore, 
connections for UTP-only use beyond the two free connections will be 
available for $100 a month in addition to a $100 installation fee, 
significantly below the charge to receive Nasdaq proprietary data.\43\ 
Subscribers electing to receive UTP-only data using a 1Gb Ultra 
connection would be required to complete a Capacity Acknowledgement 
form acknowledging in writing the risks associated with such 
connectivity, though not relieving Nasdaq of liability.\44\ Nasdaq 
believes these changes are responsive to the concerns raised by the 
commenters.\45\
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    \37\ See Nasdaq Letter I at 2-4.
    \38\ Nasdaq noted that the UTP Plan does not explicitly address 
connectivity fees. See Nasdaq Letter I at 2.
    \39\ See Nasdaq Letter I at 3.
    \40\ See Amendment No. 5.
    \41\ See e.g. Nasdaq Letter II at 2-3; Amendment No. 5.
    \42\ See id.
    \43\ See id.
    \44\ See Exhibit 3 to Amendment No. 5.
    \45\ See Nasdaq Letter II.
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    All commenters challenge the technical necessity of the proposal. 
Bats asserts that the proposal is technically unnecessary and merely an 
attempt to increase revenues by charging fees for UTP access. More 
specifically, Bats argues that Nasdaq SIP bandwidth recommendations are 
excessive, inconsistent with current peak UTP message traffic, and much 
higher than recommendations for Nasdaq's own proprietary data 
products.\46\ Citadel states that ``Nasdaq has failed to provide a 
reasonable justification for requiring market participants to purchase 
a high bandwidth 10Gb Ultra connection'' to access SIP data.\47\
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    \46\ See Bats Letter I at 3-5; Bats Letter II at 2-3; Bats 
Letter III at 3-4. Virtu, SIFMA, KCG Holdings, and IEX agree with 
Bats. See, e.g., Virtu Letter at 1-2; SIFMA Letter I at 2-3; IEX 
Letter I at 1; SIFMA Letter II at 2; KCG Letter at 2; IEX Letter II 
at 2.
    \47\ See Citadel Letter at 2. See also Amendment No. 2 which 
amended the filing to permit the use of 1Gb connections.
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    In response, Nasdaq states that it has ``done substantial analysis 
to support the recommendation and it believes the recommendation is 
consistent with its limited experience with the new Processor.'' \48\ 
Nasdaq also states that ``[d]uring a one month period (23 trading days) 
this summer, Nasdaq observed the new UTP Trade Data binary feed 
exceeding a 1G capacity for a 1 microsecond timeframe in 18 of the 
trading days. If you add the new UTP Quote Data binary feed to that 
same connection, the combined feeds exceed 1G capacity for 1 
microsecond timeframe in 23 trading days.'' \49\ In addition, Nasdaq 
asserts that the UTP operating committee has ``input into the bandwidth 
recommendation'' and could act to lower it further.\50\ Bats responds 
stating its views that Nasdaq had not demonstrated that the proposal 
was technically necessary, because in Bat's view, using a one 
microsecond burst to determine a bandwidth recommendation is misplaced, 
as the observed peak is not sustained over a full second.\51\ Bats 
states that Nasdaq's bandwidth recommendation reflects the maximum 
burst rate capability of the new system rather than the current 
capacity requirement.\52\ SIFMA agrees with Bats on this issue, stating 
that Nasdaq has not provided any ``reasonable justification for 
requiring member firms to use a 10Gb connection to receive SIP data.'' 
\53\ SIFMA states that there is no compelling necessity, either 
technical or otherwise, for creating a separate connection for access 
to the SIP data.\54\
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    \48\ See Nasdaq Letter I at 5.
    \49\ See id.
    \50\ See id.
    \51\ See Bats Letter II at 2-3.
    \52\ See id.
    \53\ See SIFMA Letter I at 2.
    \54\ See id.
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    Nasdaq disagrees with these arguments, stating its belief that they 
are reckless, because ``there is no disagreement that data feed 
requirements have increased significantly, and will continue to do 
so.'' \55\ Nasdaq further states that it continues to observe spikes in 
the UTP feeds that exceed 1Gb, justifying the 10Gb offering.\56\ Nasdaq 
also asserts that the proposal would segregate data for network 
resiliency and ensure that connectivity is adequate for intended use. 
In addition, Nasdaq states that it developed the isolated the network 
carrying the SIP data to reduce potential conflicts of interest arising 
from Nasdaq's operation of the Processor and its exchanges.\57\
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    \55\ See Nasdaq Letter II at 2.
    \56\ See id.
    \57\ See Nasdaq Letter II at 3.
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    Nasdaq responded to the comments and amended the filing such that 
any customer that wishes to receive only the data from the UTP SIP will 
be able receive two UTP-only data connections free of charge via a 1Gb 
Ultra or 10Gb Ultra connection.\58\ Additional connections for UTP-only 
use will be available for $100 per month with an installation fee of 
$100 per port. Nasdaq represents that those costs are significantly 
lower than the proposed fees to be assessed for other third party 
connectivity and will cover some of the costs associated with providing 
the connectivity.\59\ Nasdaq noted that current subscribers to three or 
more connections under Rules 7034(b) and 7051 that contain a mix of 
Nasdaq proprietary data and UTP data will pay more under the proposal 
to receive the same data, however, Nasdaq believes that such a fee 
increase is reasonable in light of the costs incurred by the Exchange 
in offering separate networks for UTP data feed connectivity and 
Nasdaq's proprietary data feed

[[Page 20926]]

connectivity, which will assist subscribers with risk management.\60\ 
Further, Nasdaq removed the requirement that subscribers absolve Nasdaq 
of liability if they take a 1Gb Ultra connection.\61\
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    \58\ See Amendment No. 5 p. 6.
    \59\ See Amendment No. 5 p. 7 and 10.
    \60\ See Amendment No. 5.
    \61\ See Amendment No. 5.
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    Nasdaq noted that the UTP Plan does not explicitly address 
connectivity fees. As to concerns raised by the commenters that Nasdaq 
has not substantiated the need for the third party connectivity 
service, Nasdaq noted that the ``UTP Operating Committee has had and 
continues to have input into the bandwidth recommendation'' \62\ and 
states that Nasdaq lowered the recommendation in response to the 
Committee's recommendation and would be ready to lower the 
recommendation again if the operating committee were to direct it to do 
so.\63\ In addition, as noted above, Nasdaq amended the proposal to 
provide two connections for UTP SIP data free of charge and additional 
connections at lower fees that reflect some of the costs associated 
with providing the connectivity.\64\ The Commission believes that 
Nasdaq has adequately addressed the concerns raised by the comments in 
its response letters and its amendments to the proposal.\65\
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    \62\ See Nasdaq Letter I at 5.
    \63\ See id.
    \64\ See Nasdaq Letter I and Nasdaq Letter II; Amendment No. 5.
    \65\ See Nasdaq Letter I and Nasdaq Letter II and amendments to 
the proposal.
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IV. Solicitation of Comments on the Proposal as Amended

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the filing, as 
amended, 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-2016-120 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-2016-120. 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 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-NASDAQ-2016-120 and should be submitted on or before May 25, 2017.

V. Accelerated Approval of Proposed Rule Change, as Amended

    The Commission finds good cause to approve the proposed rule 
change, as amended, prior to the 30th day after the date of publication 
of the notice of the amended proposal in the Federal Register. As noted 
above, Nasdaq amended the proposal to respond to the concerns raised by 
the commenters. Specifically, the Exchange is proposing to offer two 
free UTP-only connections via a 1Gb Ultra or 10Gb Ultra port. Nasdaq 
also replaced the Assumption of Liability form with a Capacity 
Acknowledgement form, such that customers are no longer required to 
hold Nasdaq harmless if they choose to take a 1Gb Ultra connection. The 
Exchange also proposes to provide additional UTP-only connectivity for 
an installation fee of $100 per connection and an ongoing monthly fee 
of $100 per connection. Because these changes address concerns raised 
by the commenters, the Commission finds good cause for approving the 
proposed rule change, as amended, on an accelerated basis, pursuant to 
Section 19(b)(2) of the Act.\66\
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    \66\ 15 U.S.C. 78s(b)(2).
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VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the Act, 
that the proposed rule change (SR-NASDAQ-2016-120), as amended, be, and 
hereby is, approved.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\67\
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    \67\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-08983 Filed 5-3-17; 8:45 am]
 BILLING CODE 8011-01-P