Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Exchange's Transaction Credits at Equity 7, Section 118(a), 29317-29321 [2021-11405]

Download as PDF Federal Register / Vol. 86, No. 103 / Tuesday, June 1, 2021 / Notices change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments [Release No. 34–92012; File No. SR– NASDAQ–2021–043] • Use the Commission’s internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– BX–2021–024 on the subject line. Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Exchange’s Transaction Credits at Equity 7, Section 118(a) Paper Comments May 25, 2021. • 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–BX–2021–024. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s internet website (https://www.sec.gov/ rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for website viewing and printing in the Commission’s Public Reference Room, 100 F Street NE, Washington, DC 20549, on official business days between the hours of 10:00 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. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–BX–2021–024 and should be submitted on or before June 22, 2021. jbell on DSKJLSW7X2PROD with NOTICES SECURITIES AND EXCHANGE COMMISSION For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.10 J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2021–11403 Filed 5–28–21; 8:45 am] 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 May 19, 2021, The Nasdaq Stock Market LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend the Exchange’s transaction credits at Equity 7, Section 118(a), as described further below. The text of the proposed rule change is available on the Exchange’s website at https://listingcenter.nasdaq.com/ rulebook/nasdaq/rules, at the principal office of the Exchange, and at the Commission’s Public Reference Room. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The purpose of the proposed rule change is to amend the Exchange’s BILLING CODE 8011–01–P 1 15 10 17 CFR 200.30–3(a)(12). VerDate Sep<11>2014 18:20 May 28, 2021 2 17 Jkt 253001 PO 00000 U.S.C. 78s(b)(1). CFR 240.19b–4. Frm 00085 Fmt 4703 Sfmt 4703 29317 schedule of credits, at Equity 7, Section 118(a). Specifically, the Exchange proposes to (1) amend an existing credit of $0.0030 per share executed for members that add at least a certain threshold volume of liquidity in securities in Tape B; (2) amend an existing credit of $0.00295 per share executed for members that add at least a certain threshold volume of liquidity in securities in Tape C and in ‘‘Designated Retail Orders’’ 3 for securities in any Tape; (3) amend an existing credit of $0.0027 per share for members that meet specified volume requirements on both Nasdaq and the Nasdaq Options Market (‘‘NOM’’) when adding liquidity; and (4) amend an existing credit of $0.0025 per share executed for orders that are routed using the ‘‘SCAR’’ routing option 4 and which ultimately execute on Nasdaq BX, Inc. (‘‘BX’’). Amend Existing Credit for Adding Liquidity in Tape B Securities First, the Exchange proposes to amend an existing credit of $0.0030 per share executed to a member with shares of liquidity provided in all securities through one or more of its Nasdaq Market Center MPIDs that represent 1.30% or more of Consolidated Volume 5 during the month, which includes shares of liquidity provided with respect to securities that are listed on exchanges other than Nasdaq or NYSE (‘‘Tape B Securities’’) that represent 0.40% or more of Consolidated Volume. The Exchange proposes to lower the liquidity adding threshold for the credit 3 Pursuant to Equity 7, Section 118, a ‘‘Designated Retail Order’’ is an agency or riskless principal order that meets the criteria of FINRA Rule 5320.03 and that originates from a natural person and is submitted to Nasdaq by a member that designates it pursuant to this section, provided that no change is made to the terms of the order with respect to price or side of market and the order does not originate from a trading algorithm or any other computerized methodology. 4 Pursuant to Equity 4, Section 4758(a)(1)(A)(xv), ‘‘SCAR’’ is a routing option under which orders will check the System for available shares and simultaneously route to BX and Nasdaq PSX in accordance with the System routing table. If shares remain unexecuted after routing, they are posted on the book or cancelled. Once on the book, should the order subsequently be locked or crossed by another market center, the System will not route the order to the locking or crossing market center. 5 Equity 7, Section 118(a) defines ‘‘Consolidated Volume’’ to mean the total consolidated volume reported to all consolidated transaction reporting plans by all exchanges and trade reporting facilities during a month in equity securities, excluding executed orders with a size of less than one round lot. For purposes of calculating Consolidated Volume and the extent of a member’s trading activity the date of the annual reconstitution of the Russell Investments Indexes is excluded from both total Consolidated Volume and the member’s trading activity. E:\FR\FM\01JNN1.SGM 01JNN1 29318 Federal Register / Vol. 86, No. 103 / Tuesday, June 1, 2021 / Notices jbell on DSKJLSW7X2PROD with NOTICES from 1.30% of Consolidated Volume to 1.25% of Consolidated Volume. In doing so, the Exchange intends to render the credit more readily accessible to members. If more members assess that this credit is accessible to them, and they increase their liquidity adding activity on the Exchange to qualify for it, then the quality of the market will improve, to the benefit of all participants. Amend Existing Credit for Adding Liquidity in Tape C Securities and in Designated Retail Orders Second, the Exchange proposes to amend a credit it presently offers of $0.00295 per share executed to a member that, through one or more of its Nasdaq Market Center MPIDs (i) adds shares of liquidity during the month representing at least 0.80% of Consolidated Volume during the month; (ii) adds at least 0.35% of Consolidated Volume during the month in securities in Tape C; and (iii) adds at least 0.15% of Consolidated Volume during the month in Designated Retail Orders for securities in any Tape. The Exchange proposes to amend this credit in several ways. The Exchange proposes to lower the liquidity adding threshold for the credit from 0.80% of Consolidated Volume to 0.65% of Consolidated Volume. In doing so, the Exchange intends to render the credit more readily accessible to members. If more members assess that this credit is accessible to them, and they increase their liquidity adding activity on the Exchange to qualify for it, then the quality of the market will improve, to the benefit of all participants. The Exchange also proposes to add a new qualifying criterion to the credit that would require members to achieve at least a 60% ratio of its liquidity adding activity to its total activity on the Exchange during the month. The Exchange proposes to add this new criterion so that the credit rewards members whose activities on the Exchange consist primarily of adding liquidity. Again, the Exchange believes that all participants will benefit from an improvement in market quality to the extent that the Exchange successfully incentivizes liquidity adding activity. Finally, the Exchange proposes to eliminate the qualifying criterion that members must add at least 0.35% of Consolidated Volume during the month in securities in Tape C. The Exchange proposes to eliminate this criterion because the Exchange believes it already has adequate incentives for members to add liquidity in Tape C securities, such that this criterion is not necessary. VerDate Sep<11>2014 18:20 May 28, 2021 Jkt 253001 Moreover, the Exchange seeks to avoid rendering this credit overly complex and onerous for members to attain. Amend Existing Credit for Adding Liquidity on Nasdaq and NOM Third, the Exchange proposes to amend an existing credit for securities in all three Tapes that it provides (other than Supplemental Orders or Designated Retail Orders) to members that meet a specified volume threshold on Nasdaq for orders that add liquidity, and that also meet a specified volume threshold on NOM when adding liquidity. The existing credit provides that a member will receive a credit of $0.0027 per share executed if the member (1) adds liquidity through one or more of its Nasdaq Market Center MPIDs during the month that, in all securities, represents more than 0.10% of Consolidated Volume during the month, and (2) adds Customer,6 Professional,7 Firm,8 Non-NOM Market Maker,9 and/or Broker-Dealer 10 liquidity of 0.40% or more of total industry ADV in the customer clearing range for Equity and ETF option contracts per day during the month on the Nasdaq Options Market. The Exchange proposes to amend this credit by deleting the requirement that members must add a threshold percentage of liquidity on NOM that is classified as ‘‘Customer, Professional, Firm, Non-NOM Market Maker, and/or Broker-Dealer’’ liquidity. By eliminating this requirement, the Exchange intends to render the credit easier for members to attain, as the addition of any type of liquidity in the customer clearing range on NOM would be acceptable. The Exchange believes that if more members find the credit to be attainable, then more will seek to qualify for it by adding liquidity to the Exchange and 6 The term ‘‘Customer’’ applies to any transaction that is identified by a participant for clearing in the Customer range at The Options Clearing Corporation (‘‘OCC’’) which is not for the account of broker or dealer or for the account of a ‘‘Professional,’’ as defined in Option 7, Section 1. 7 A ‘‘Professional’’ is defined in Options 1, Section 1(a)(47) as ‘‘any person or entity that (i) is not a broker or dealer in securities, and (ii) places more than 390 orders in listed options per day on average during a calendar month for its own beneficial account(s).’’ 8 The term ‘‘Firm’’ or (‘‘F’’) applies to any transaction that is identified by a Participant for clearing in the Firm range at OCC. 9 The term ‘‘Non-NOM Market Maker’’ or (‘‘O’’) is a registered market maker on another options exchange that is not a NOM Market Maker. A NonNOM Market Maker must append the proper NonNOM Market Maker designation to orders routed to NOM. 10 The term ‘‘Broker-Dealer’’ or (‘‘B’’) applies to any transaction which is not subject to any of the other transaction fees applicable within a particular category. PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 NOM, which will improve the quality of both markets. Amend Existing Credit for Routed Orders Using SCAR That Execute on BX Finally, the Exchange proposes to lower from $0.0025 to $0.0016 per share executed the credit that it provides to a member that uses the SCAR order routing option and executes an order in a security in any of the three tapes on BX. BX recently revised its pricing schedule to lower the amounts of the credits it provides to its members that remove liquidity from BX.11 Currently, all of the credits that BX provides to its members are lower than $0.0025 per share executed.12 As a result, the Exchange proposes to lower its own $0.0025 per share executed credit for SCAR routed orders that execute on BX in order to better align this credit with corresponding credits that BX provides to its own members. 2. Statutory Basis The Exchange believes that its proposals are consistent with Section 6(b) of the Act,13 in general, and further the objectives of Sections 6(b)(4) and 6(b)(5) of the Act,14 in particular, in that they provide for the equitable allocation of reasonable dues, fees and other charges among members and issuers and other persons using any facility, and are not designed to permit unfair discrimination between customers, issuers, brokers, or dealers. The proposals are also consistent with Section 11A of the Act relating to the establishment of the national market system for securities. The Proposals Are Reasonable The Exchange’s proposals are reasonable in several respects. As a threshold matter, the Exchange is subject to significant competitive forces in the market for equity securities transaction services that constrain its pricing determinations in that market. The fact that this market is competitive has long been recognized by the courts. In NetCoalition v. Securities and Exchange Commission, the D.C. Circuit stated as follows: ‘‘[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 11 Securities Exchange Act Release No. 91639 (April 22, 2021), 80 FR 22500 (April 28, 2021). 12 See BX Equity 7 (Pricing Schedule), available at https://listingcenter.nasdaq.com/rulebook/bx/ rules/BX%20Equity%207. 13 15 U.S.C. 78f(b). 14 15 U.S.C. 78f(b)(4) and (5). E:\FR\FM\01JNN1.SGM 01JNN1 Federal Register / Vol. 86, No. 103 / Tuesday, June 1, 2021 / Notices jbell on DSKJLSW7X2PROD with NOTICES 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’. . . .’’ 15 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.’’ 16 Numerous indicia demonstrate the competitive nature of this market. For example, clear substitutes to the Exchange exist in the market for equity security transaction services. The Exchange is only one of several equity venues to which market participants may direct their order flow. Competing equity exchanges offer similar tiered pricing structures to that of the Exchange, including schedules of rebates and fees that apply based upon members achieving certain volume thresholds. Within this environment, market participants can freely and often do shift their order flow among the Exchange and competing venues in response to changes in their respective pricing schedules. Within the foregoing context, the proposals represent reasonable attempts by the Exchange to increase its liquidity and market share relative to its competitors. The Exchange believes that it is reasonable to modify the qualification criteria for two of its transaction credits, at Equity 7, Section 118(a) because they will each encourage the addition of liquidity to the Exchange, first by making it easier for additional members to qualify for the $0.0030 and the $0.00295 credit, and second by specifying that the $0.00295 per share executed credit will go to those members whose activities on the Exchange consist primarily of adding liquidity to the Exchange. If more 15 NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. Cir. 2010) (quoting Securities Exchange Act Release No. 59039 (December 2, 2008), 73 FR 74770, 74782– 83 (December 9, 2008) (SR–NYSEArca–2006–21)). 16 Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005) (‘‘Regulation NMS Adopting Release’’). VerDate Sep<11>2014 18:20 May 28, 2021 Jkt 253001 members seek to qualify for these credits by adding liquidity to the Exchange, and if members seek to become net adders of liquidity on the Exchange to qualify or continue to qualify for the $0.00295 credit, then the quality of the market will improve, and the Exchange will become more attractive to existing and prospective participants. The Exchange also believes that it is reasonable for it to eliminate the requirement for the $0.00295 credit that members must add at least 0.35% of Consolidated Volume during the month in securities in Tape C. The Exchange believes that this proposal is reasonable because it assesses that it already has adequate incentives for members to add liquidity in Tape C securities, such that this requirement is not necessary. Moreover, the Exchange seeks to avoid rendering this credit overly complex and onerous for members to attain. Similarly, the Exchange believes that it is reasonable to ease the qualification criteria for the $0.0027 per share executed credit for a member that adds certain threshold volumes of liquidity on the Exchange and on NOM during a month. By eliminating the existing requirement that a member must add liquidity to NOM that consists of Customer, Professional, Firm, Non-NOM Market Maker, and/or Broker-Dealer liquidity, the Exchange again intends to render the credit easier for members to attain. If as a result of the proposal, more members find the credit to be attainable and seek to qualify for it by adding liquidity to the Exchange and NOM, then the quality of both markets will improve, and the Exchange will become more attractive to existing and prospective participants. Finally, the Exchange believes it is reasonable to lower the $0.0025 per share executed credit that it provides to a member that enters a SCAR routed order that executes on BX because the proposal will better align this credit with corresponding credits that BX provides to its own members that remove liquidity from that exchange. The Exchange believes that it is appropriate to periodically reassess and recalibrate its credits. In this instance, aligning the credits will help to ensure that market participants do not use the Exchange’s SCAR order routing strategy solely to obtain a higher rebate on orders that are routed and executed on BX. The Exchange notes that those market participants that are dissatisfied with the proposals are free to shift their order flow to competing venues that offer more generous pricing or less stringent qualifying criteria. PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 29319 The Proposals Are Equitable Allocations of Credits The Exchange believes that is an equitable allocation to ease and otherwise modify the eligibility requirements for three of its transaction credits because the proposals will encourage members to add additional liquidity to the Exchange. To the extent that the Exchange succeeds in increasing liquidity on the Exchange, then the Exchange will experience improvements in its market quality, which again stands to benefit all market participants. The Exchange believes its proposal to lower its credit for SCAR routed orders that execute on BX is an equitable allocation because the proposed amended credit amount is better aligned with liquidity removal credits that BX provides to its members. Any participant that is dissatisfied with the proposals is free to shift their order flow to competing venues that provide more generous pricing or less stringent qualifying criteria. The Proposals Are Not Unfairly Discriminatory The Exchange believes that its proposals are not unfairly discriminatory. As an initial matter, the Exchange believes that nothing about its volume-based tiered pricing model is inherently unfair; instead, it is a rational pricing model that is well-established and ubiquitous in today’s economy among firms in various industries—from co-branded credit cards to grocery stores to cellular telephone data plans—that use it to reward the loyalty of their best customers that provide high levels of business activity and incent other customers to increase the extent of their business activity. It is also a pricing model that the Exchange and its competitors have long employed with the assent of the Commission. It is fair because it incentivizes customer activity that increases liquidity, enhances price discovery, and improves the overall quality of the equity markets. The Exchange believes that its proposals to ease or otherwise amend the qualifying criteria for three of its transaction credits are not unfairly discriminatory because these credits are available to all members. Moreover, these proposals stand to improve the overall market quality of the Exchange, to the benefit of all market participants, by incentivizing members to increase the extent of their liquidity adding activity on the Exchange. Meanwhile, the proposal to lower the amount of its credit for members that use SCAR and execute orders on BX is E:\FR\FM\01JNN1.SGM 01JNN1 29320 Federal Register / Vol. 86, No. 103 / Tuesday, June 1, 2021 / Notices not unfairly discriminatory because the proposed amended credit is available to all members and is in better alignment with the amounts of the credits that BX itself provides to members that remove liquidity from that exchange. Any participant that is dissatisfied with the proposals is free to shift their order flow to competing venues that provide more generous pricing or less stringent qualifying criteria. B. Self-Regulatory Organization’s Statement on Burden on Competition The Exchange does not believe that the proposed rule changes will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. jbell on DSKJLSW7X2PROD with NOTICES Intramarket Competition The Exchange does not believe that its proposal will place any category of Exchange participant at a competitive disadvantage. As noted above, the proposed changes to the qualifying criteria for three of its transaction credits are intended to have market-improving effects, to the benefit of all members. Any member may elect to achieve the levels of liquidity required in order to qualify for the credits. Likewise, the Exchange’s proposal to lower the amount of the credit it provides to members that utilize the SCAR routing strategy and execute orders on BX will not competitively disadvantage any category of Exchange member. The proposal will merely ensure that the amount of the credit is better aligned with the recently lowered corresponding credits that BX provides to its own members that remove liquidity from that exchange. The Exchange notes that its members are free to trade on other venues to the extent they believe that the proposed qualification criteria for or amounts of these credits are not attractive. As one can observe by looking at any market share chart, price competition between exchanges is fierce, with liquidity and market share moving freely between exchanges in reaction to fee and credit changes. The Exchange notes that its pricing tier structure is consistent with broker-dealer fee practices as well as the other industries, as described above. Intermarket Competition In terms of inter-market competition, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more VerDate Sep<11>2014 18:20 May 28, 2021 Jkt 253001 favorable. In such an environment, the Exchange must continually adjust its credits and fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own credits and fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which credit or fee changes in this market may impose any burden on competition is extremely limited. The proposed amended credits are reflective of this competition because, even as one of the largest U.S. equities exchanges by volume, the Exchange has less than 20% market share, which in most markets could hardly be categorized as having enough market power to burden competition. Moreover, as noted above, price competition between exchanges is fierce, with liquidity and market share moving freely between exchanges in reaction to fee and credit changes. This is in addition to free flow of order flow to and among off-exchange venues which comprises upwards of 44% of industry volume. The Exchange’s proposals to amend three of its transaction credits are procompetitive in that the Exchange intends for them to increase liquidity on the Exchange, thereby rendering the Exchange a more attractive and vibrant venue to market participants. Meanwhile, the Exchange’s proposal to lower the credit it offers to members that use SCAR and execute orders on BX is pro-competitive in that the proposal will result in better competitive alignment between the SCAR credit and the amounts of liquidity removal credits that BX provides to its own members that remove liquidity from that exchange. In sum, if the changes proposed herein are unattractive to market participants, it is likely that the Exchange will lose market share as a result. Accordingly, the Exchange does not believe that the proposed changes will impair the ability of members or competing order execution venues to maintain their competitive standing in the financial markets. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were either solicited or received. PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.17 At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission’s internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– NASDAQ–2021–043 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–2021–043. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s internet website (https://www.sec.gov/ rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for website viewing and printing in the Commission’s Public Reference Room, 100 F Street NE, 17 15 E:\FR\FM\01JNN1.SGM U.S.C. 78s(b)(3)(A)(ii). 01JNN1 Federal Register / Vol. 86, No. 103 / Tuesday, June 1, 2021 / Notices 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. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–NASDAQ–2021–043 and should be submitted on or before June 22, 2021. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.18 J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2021–11405 Filed 5–28–21; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–91994; File No. SR– CboeBZX–2021–039] Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing of a Proposed Rule Change To List and Trade Shares of the Wise Origin Bitcoin Trust Under BZX Rule 14.11(e)(4), Commodity-Based Trust Shares May 25, 2021. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the ‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on May 10, 2021, Cboe BZX Exchange, Inc. (the ‘‘Exchange’’ or ‘‘BZX’’) filed with the Securities and Exchange Commission (the ‘‘Commission’’) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. jbell on DSKJLSW7X2PROD with NOTICES I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change Cboe BZX Exchange, Inc. (the ‘‘Exchange’’ or ‘‘BZX’’) is filing with the Securities and Exchange Commission (‘‘Commission’’) a proposed rule change to list and trade shares of the Wise 18 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 1 15 VerDate Sep<11>2014 18:20 May 28, 2021 Jkt 253001 Origin Bitcoin Trust (the ‘‘Trust’’),3 under BZX Rule 14.11(e)(4), Commodity-Based Trust Shares. The text of the proposed rule change is also available on the Exchange’s website (https://markets.cboe.com/us/ equities/regulation/rule_filings/bzx/), at the Exchange’s Office of the Secretary, and at the Commission’s Public Reference Room. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange proposes to list and trade the Shares under BZX Rule 14.11(e)(4),4 which governs the listing and trading of Commodity-Based Trust Shares on the Exchange.5 FD Funds Management LLC is the sponsor of the Trust (‘‘Sponsor’’). The Shares will be registered with the Commission by means of the Trust’s registration statement on Form S–1 (the ‘‘Registration Statement’’).6 3 The Trust was formed as a Delaware statutory trust on March 17, 2021 and is operated as a grantor trust for U.S. federal tax purposes. The Trust has no fixed termination date. 4 The Commission approved BZX Rule 14.11(e)(4) in Securities Exchange Act Release No. 65225 (August 30, 2011), 76 FR 55148 (September 6, 2011) (SR–BATS–2011–018). 5 All statements and representations made in this filing regarding (a) the description of the portfolio, (b) limitations on portfolio holdings or reference assets, or (c) the applicability of Exchange rules and surveillance procedures shall constitute continued listing requirements for listing the Shares on the Exchange. 6 See draft Registration Statement on Form S–1, dated March 24, 2021 submitted to the Commission by the Sponsor on behalf of the Trust. The descriptions of the Trust, the Shares, and the Index (as defined below) contained herein are based, in part, on information in the Registration Statement. The Registration Statement is not yet effective and the Shares will not trade on the Exchange until such time that the Registration Statement is effective. PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 29321 Background Bitcoin is a digital asset based on the decentralized, open source protocol of the peer-to-peer computer network launched in 2009 that governs the creation, movement, and ownership of bitcoin and hosts the public ledger, or ‘‘blockchain,’’ on which all bitcoin transactions are recorded (the ‘‘Bitcoin Network’’ or ‘‘Bitcoin’’). The decentralized nature of the Bitcoin Network allows parties to transact directly with one another based on cryptographic proof instead of relying on a trusted third party. The protocol also lays out the rate of issuance of new bitcoin within the Bitcoin Network, a rate that is reduced by half approximately every four years with an eventual hard cap of 21 million. It is generally understood that the combination of these two features—a systemic hard cap of 21 million bitcoin and the ability to transact trustlessly with anyone connected to the Bitcoin Network—gives bitcoin its value.7 The first rule filing proposing to list an exchange-traded product to provide exposure to bitcoin in the U.S. was submitted by the Exchange on June 30, 2016.8 At that time, blockchain technology, and digital assets that utilized it, were relatively new to the broader public. The market cap of all bitcoin in existence at that time was approximately $10 billion. No registered offering of digital asset securities or shares in an investment vehicle with exposure to bitcoin or any other cryptocurrency had yet been conducted, and the regulated infrastructure for conducting a digital asset securities offering had not begun to develop.9 Similarly, regulated U.S. bitcoin futures contracts did not exist. The Commodity Futures Trading Commission (the ‘‘CFTC’’) had determined that bitcoin is a commodity,10 but had not engaged in 7 For additional information about bitcoin and the Bitcoin Network, see https://bitcoin.org/en/gettingstarted; https://www.fidelitydigitalassets.com/ articles/addressing-bitcoin-criticisms; and https:// www.vaneck.com/education/investment-ideas/ investing-in-bitcoin-and-digital-assets/. 8 See Securities Exchange Act Release No. 83723 (July 26, 2018), 83 FR 37579 (August 1, 2018). This proposal was subsequently disapproved by the Commission. See Securities Exchange Act Release No. 83723 (July 26, 2018), 83 FR 37579 (August 1, 2018) (the ‘‘Winklevoss Order’’). 9 Digital assets that are securities under U.S. law are referred to throughout this proposal as ‘‘digital asset securities.’’ All other digital assets, including bitcoin, are referred to interchangeably as ‘‘cryptocurrencies’’ or ‘‘virtual currencies.’’ The term ‘‘digital assets’’ refers to all digital assets, including both digital asset securities and cryptocurrencies, together. 10 See ‘‘In the Matter of Coinflip, Inc.’’ (‘‘Coinflip’’) (CFTC Docket 15–29 (September 17, E:\FR\FM\01JNN1.SGM Continued 01JNN1

Agencies

[Federal Register Volume 86, Number 103 (Tuesday, June 1, 2021)]
[Notices]
[Pages 29317-29321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11405]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-92012; File No. SR-NASDAQ-2021-043]


Self-Regulatory Organizations; The Nasdaq Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Amend the Exchange's Transaction Credits at Equity 7, Section 118(a)

May 25, 2021.
    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 May 19, 2021, The Nasdaq Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I, II, and III below, which Items have been prepared by the 
Exchange. The Commission is publishing this notice to solicit comments 
on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend the Exchange's transaction credits 
at Equity 7, Section 118(a), as described further below.
    The text of the proposed rule change is available on the Exchange's 
website at https://listingcenter.nasdaq.com/rulebook/nasdaq/rules, at 
the principal office of the Exchange, and at the Commission's Public 
Reference Room.

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

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

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

1. Purpose
    The purpose of the proposed rule change is to amend the Exchange's 
schedule of credits, at Equity 7, Section 118(a). Specifically, the 
Exchange proposes to (1) amend an existing credit of $0.0030 per share 
executed for members that add at least a certain threshold volume of 
liquidity in securities in Tape B; (2) amend an existing credit of 
$0.00295 per share executed for members that add at least a certain 
threshold volume of liquidity in securities in Tape C and in 
``Designated Retail Orders'' \3\ for securities in any Tape; (3) amend 
an existing credit of $0.0027 per share for members that meet specified 
volume requirements on both Nasdaq and the Nasdaq Options Market 
(``NOM'') when adding liquidity; and (4) amend an existing credit of 
$0.0025 per share executed for orders that are routed using the 
``SCAR'' routing option \4\ and which ultimately execute on Nasdaq BX, 
Inc. (``BX'').
---------------------------------------------------------------------------

    \3\ Pursuant to Equity 7, Section 118, a ``Designated Retail 
Order'' is an agency or riskless principal order that meets the 
criteria of FINRA Rule 5320.03 and that originates from a natural 
person and is submitted to Nasdaq by a member that designates it 
pursuant to this section, provided that no change is made to the 
terms of the order with respect to price or side of market and the 
order does not originate from a trading algorithm or any other 
computerized methodology.
    \4\ Pursuant to Equity 4, Section 4758(a)(1)(A)(xv), ``SCAR'' is 
a routing option under which orders will check the System for 
available shares and simultaneously route to BX and Nasdaq PSX in 
accordance with the System routing table. If shares remain 
unexecuted after routing, they are posted on the book or cancelled. 
Once on the book, should the order subsequently be locked or crossed 
by another market center, the System will not route the order to the 
locking or crossing market center.
---------------------------------------------------------------------------

Amend Existing Credit for Adding Liquidity in Tape B Securities
    First, the Exchange proposes to amend an existing credit of $0.0030 
per share executed to a member with shares of liquidity provided in all 
securities through one or more of its Nasdaq Market Center MPIDs that 
represent 1.30% or more of Consolidated Volume \5\ during the month, 
which includes shares of liquidity provided with respect to securities 
that are listed on exchanges other than Nasdaq or NYSE (``Tape B 
Securities'') that represent 0.40% or more of Consolidated Volume.
---------------------------------------------------------------------------

    \5\ Equity 7, Section 118(a) defines ``Consolidated Volume'' to 
mean the total consolidated volume reported to all consolidated 
transaction reporting plans by all exchanges and trade reporting 
facilities during a month in equity securities, excluding executed 
orders with a size of less than one round lot. For purposes of 
calculating Consolidated Volume and the extent of a member's trading 
activity the date of the annual reconstitution of the Russell 
Investments Indexes is excluded from both total Consolidated Volume 
and the member's trading activity.
---------------------------------------------------------------------------

    The Exchange proposes to lower the liquidity adding threshold for 
the credit

[[Page 29318]]

from 1.30% of Consolidated Volume to 1.25% of Consolidated Volume. In 
doing so, the Exchange intends to render the credit more readily 
accessible to members. If more members assess that this credit is 
accessible to them, and they increase their liquidity adding activity 
on the Exchange to qualify for it, then the quality of the market will 
improve, to the benefit of all participants.
Amend Existing Credit for Adding Liquidity in Tape C Securities and in 
Designated Retail Orders
    Second, the Exchange proposes to amend a credit it presently offers 
of $0.00295 per share executed to a member that, through one or more of 
its Nasdaq Market Center MPIDs (i) adds shares of liquidity during the 
month representing at least 0.80% of Consolidated Volume during the 
month; (ii) adds at least 0.35% of Consolidated Volume during the month 
in securities in Tape C; and (iii) adds at least 0.15% of Consolidated 
Volume during the month in Designated Retail Orders for securities in 
any Tape. The Exchange proposes to amend this credit in several ways.
    The Exchange proposes to lower the liquidity adding threshold for 
the credit from 0.80% of Consolidated Volume to 0.65% of Consolidated 
Volume. In doing so, the Exchange intends to render the credit more 
readily accessible to members. If more members assess that this credit 
is accessible to them, and they increase their liquidity adding 
activity on the Exchange to qualify for it, then the quality of the 
market will improve, to the benefit of all participants.
    The Exchange also proposes to add a new qualifying criterion to the 
credit that would require members to achieve at least a 60% ratio of 
its liquidity adding activity to its total activity on the Exchange 
during the month. The Exchange proposes to add this new criterion so 
that the credit rewards members whose activities on the Exchange 
consist primarily of adding liquidity. Again, the Exchange believes 
that all participants will benefit from an improvement in market 
quality to the extent that the Exchange successfully incentivizes 
liquidity adding activity.
    Finally, the Exchange proposes to eliminate the qualifying 
criterion that members must add at least 0.35% of Consolidated Volume 
during the month in securities in Tape C. The Exchange proposes to 
eliminate this criterion because the Exchange believes it already has 
adequate incentives for members to add liquidity in Tape C securities, 
such that this criterion is not necessary. Moreover, the Exchange seeks 
to avoid rendering this credit overly complex and onerous for members 
to attain.
Amend Existing Credit for Adding Liquidity on Nasdaq and NOM
    Third, the Exchange proposes to amend an existing credit for 
securities in all three Tapes that it provides (other than Supplemental 
Orders or Designated Retail Orders) to members that meet a specified 
volume threshold on Nasdaq for orders that add liquidity, and that also 
meet a specified volume threshold on NOM when adding liquidity. The 
existing credit provides that a member will receive a credit of $0.0027 
per share executed if the member (1) adds liquidity through one or more 
of its Nasdaq Market Center MPIDs during the month that, in all 
securities, represents more than 0.10% of Consolidated Volume during 
the month, and (2) adds Customer,\6\ Professional,\7\ Firm,\8\ Non-NOM 
Market Maker,\9\ and/or Broker-Dealer \10\ liquidity of 0.40% or more 
of total industry ADV in the customer clearing range for Equity and ETF 
option contracts per day during the month on the Nasdaq Options Market.
---------------------------------------------------------------------------

    \6\ The term ``Customer'' applies to any transaction that is 
identified by a participant for clearing in the Customer range at 
The Options Clearing Corporation (``OCC'') which is not for the 
account of broker or dealer or for the account of a 
``Professional,'' as defined in Option 7, Section 1.
    \7\ A ``Professional'' is defined in Options 1, Section 1(a)(47) 
as ``any person or entity that (i) is not a broker or dealer in 
securities, and (ii) places more than 390 orders in listed options 
per day on average during a calendar month for its own beneficial 
account(s).''
    \8\ The term ``Firm'' or (``F'') applies to any transaction that 
is identified by a Participant for clearing in the Firm range at 
OCC.
    \9\ The term ``Non-NOM Market Maker'' or (``O'') is a registered 
market maker on another options exchange that is not a NOM Market 
Maker. A Non-NOM Market Maker must append the proper Non-NOM Market 
Maker designation to orders routed to NOM.
    \10\ The term ``Broker-Dealer'' or (``B'') applies to any 
transaction which is not subject to any of the other transaction 
fees applicable within a particular category.
---------------------------------------------------------------------------

    The Exchange proposes to amend this credit by deleting the 
requirement that members must add a threshold percentage of liquidity 
on NOM that is classified as ``Customer, Professional, Firm, Non-NOM 
Market Maker, and/or Broker-Dealer'' liquidity. By eliminating this 
requirement, the Exchange intends to render the credit easier for 
members to attain, as the addition of any type of liquidity in the 
customer clearing range on NOM would be acceptable. The Exchange 
believes that if more members find the credit to be attainable, then 
more will seek to qualify for it by adding liquidity to the Exchange 
and NOM, which will improve the quality of both markets.
Amend Existing Credit for Routed Orders Using SCAR That Execute on BX
    Finally, the Exchange proposes to lower from $0.0025 to $0.0016 per 
share executed the credit that it provides to a member that uses the 
SCAR order routing option and executes an order in a security in any of 
the three tapes on BX.
    BX recently revised its pricing schedule to lower the amounts of 
the credits it provides to its members that remove liquidity from 
BX.\11\ Currently, all of the credits that BX provides to its members 
are lower than $0.0025 per share executed.\12\ As a result, the 
Exchange proposes to lower its own $0.0025 per share executed credit 
for SCAR routed orders that execute on BX in order to better align this 
credit with corresponding credits that BX provides to its own members.
---------------------------------------------------------------------------

    \11\ Securities Exchange Act Release No. 91639 (April 22, 2021), 
80 FR 22500 (April 28, 2021).
    \12\ See BX Equity 7 (Pricing Schedule), available at https://listingcenter.nasdaq.com/rulebook/bx/rules/BX%20Equity%207.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that its proposals are consistent with 
Section 6(b) of the Act,\13\ in general, and further the objectives of 
Sections 6(b)(4) and 6(b)(5) of the Act,\14\ in particular, in that 
they provide for the equitable allocation of reasonable dues, fees and 
other charges among members and issuers and other persons using any 
facility, and are not designed to permit unfair discrimination between 
customers, issuers, brokers, or dealers. The proposals are also 
consistent with Section 11A of the Act relating to the establishment of 
the national market system for securities.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78f(b).
    \14\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------

The Proposals Are Reasonable
    The Exchange's proposals are reasonable in several respects. As a 
threshold matter, the Exchange is subject to significant competitive 
forces in the market for equity securities transaction services that 
constrain its pricing determinations in that market. The fact that this 
market is competitive has long been recognized by the courts. In 
NetCoalition v. Securities and Exchange Commission, the D.C. Circuit 
stated as follows: ``[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

[[Page 29319]]

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'. . . .'' \15\
---------------------------------------------------------------------------

    \15\ NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. Cir. 2010) 
(quoting Securities Exchange Act Release No. 59039 (December 2, 
2008), 73 FR 74770, 74782-83 (December 9, 2008) (SR-NYSEArca-2006-
21)).
---------------------------------------------------------------------------

    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.'' \16\
---------------------------------------------------------------------------

    \16\ Securities Exchange Act Release No. 51808 (June 9, 2005), 
70 FR 37496, 37499 (June 29, 2005) (``Regulation NMS Adopting 
Release'').
---------------------------------------------------------------------------

    Numerous indicia demonstrate the competitive nature of this market. 
For example, clear substitutes to the Exchange exist in the market for 
equity security transaction services. The Exchange is only one of 
several equity venues to which market participants may direct their 
order flow. Competing equity exchanges offer similar tiered pricing 
structures to that of the Exchange, including schedules of rebates and 
fees that apply based upon members achieving certain volume thresholds.
    Within this environment, market participants can freely and often 
do shift their order flow among the Exchange and competing venues in 
response to changes in their respective pricing schedules. Within the 
foregoing context, the proposals represent reasonable attempts by the 
Exchange to increase its liquidity and market share relative to its 
competitors.
    The Exchange believes that it is reasonable to modify the 
qualification criteria for two of its transaction credits, at Equity 7, 
Section 118(a) because they will each encourage the addition of 
liquidity to the Exchange, first by making it easier for additional 
members to qualify for the $0.0030 and the $0.00295 credit, and second 
by specifying that the $0.00295 per share executed credit will go to 
those members whose activities on the Exchange consist primarily of 
adding liquidity to the Exchange. If more members seek to qualify for 
these credits by adding liquidity to the Exchange, and if members seek 
to become net adders of liquidity on the Exchange to qualify or 
continue to qualify for the $0.00295 credit, then the quality of the 
market will improve, and the Exchange will become more attractive to 
existing and prospective participants.
    The Exchange also believes that it is reasonable for it to 
eliminate the requirement for the $0.00295 credit that members must add 
at least 0.35% of Consolidated Volume during the month in securities in 
Tape C. The Exchange believes that this proposal is reasonable because 
it assesses that it already has adequate incentives for members to add 
liquidity in Tape C securities, such that this requirement is not 
necessary. Moreover, the Exchange seeks to avoid rendering this credit 
overly complex and onerous for members to attain.
    Similarly, the Exchange believes that it is reasonable to ease the 
qualification criteria for the $0.0027 per share executed credit for a 
member that adds certain threshold volumes of liquidity on the Exchange 
and on NOM during a month. By eliminating the existing requirement that 
a member must add liquidity to NOM that consists of Customer, 
Professional, Firm, Non-NOM Market Maker, and/or Broker-Dealer 
liquidity, the Exchange again intends to render the credit easier for 
members to attain. If as a result of the proposal, more members find 
the credit to be attainable and seek to qualify for it by adding 
liquidity to the Exchange and NOM, then the quality of both markets 
will improve, and the Exchange will become more attractive to existing 
and prospective participants.
    Finally, the Exchange believes it is reasonable to lower the 
$0.0025 per share executed credit that it provides to a member that 
enters a SCAR routed order that executes on BX because the proposal 
will better align this credit with corresponding credits that BX 
provides to its own members that remove liquidity from that exchange. 
The Exchange believes that it is appropriate to periodically reassess 
and recalibrate its credits. In this instance, aligning the credits 
will help to ensure that market participants do not use the Exchange's 
SCAR order routing strategy solely to obtain a higher rebate on orders 
that are routed and executed on BX.
    The Exchange notes that those market participants that are 
dissatisfied with the proposals are free to shift their order flow to 
competing venues that offer more generous pricing or less stringent 
qualifying criteria.
The Proposals Are Equitable Allocations of Credits
    The Exchange believes that is an equitable allocation to ease and 
otherwise modify the eligibility requirements for three of its 
transaction credits because the proposals will encourage members to add 
additional liquidity to the Exchange. To the extent that the Exchange 
succeeds in increasing liquidity on the Exchange, then the Exchange 
will experience improvements in its market quality, which again stands 
to benefit all market participants.
    The Exchange believes its proposal to lower its credit for SCAR 
routed orders that execute on BX is an equitable allocation because the 
proposed amended credit amount is better aligned with liquidity removal 
credits that BX provides to its members.
    Any participant that is dissatisfied with the proposals is free to 
shift their order flow to competing venues that provide more generous 
pricing or less stringent qualifying criteria.
The Proposals Are Not Unfairly Discriminatory
    The Exchange believes that its proposals are not unfairly 
discriminatory. As an initial matter, the Exchange believes that 
nothing about its volume-based tiered pricing model is inherently 
unfair; instead, it is a rational pricing model that is well-
established and ubiquitous in today's economy among firms in various 
industries--from co-branded credit cards to grocery stores to cellular 
telephone data plans--that use it to reward the loyalty of their best 
customers that provide high levels of business activity and incent 
other customers to increase the extent of their business activity. It 
is also a pricing model that the Exchange and its competitors have long 
employed with the assent of the Commission. It is fair because it 
incentivizes customer activity that increases liquidity, enhances price 
discovery, and improves the overall quality of the equity markets.
    The Exchange believes that its proposals to ease or otherwise amend 
the qualifying criteria for three of its transaction credits are not 
unfairly discriminatory because these credits are available to all 
members. Moreover, these proposals stand to improve the overall market 
quality of the Exchange, to the benefit of all market participants, by 
incentivizing members to increase the extent of their liquidity adding 
activity on the Exchange.
    Meanwhile, the proposal to lower the amount of its credit for 
members that use SCAR and execute orders on BX is

[[Page 29320]]

not unfairly discriminatory because the proposed amended credit is 
available to all members and is in better alignment with the amounts of 
the credits that BX itself provides to members that remove liquidity 
from that exchange.
    Any participant that is dissatisfied with the proposals is free to 
shift their order flow to competing venues that provide more generous 
pricing or less stringent qualifying criteria.

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

    The Exchange does not believe that the proposed rule changes will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act.
Intramarket Competition
    The Exchange does not believe that its proposal will place any 
category of Exchange participant at a competitive disadvantage.
    As noted above, the proposed changes to the qualifying criteria for 
three of its transaction credits are intended to have market-improving 
effects, to the benefit of all members. Any member may elect to achieve 
the levels of liquidity required in order to qualify for the credits.
    Likewise, the Exchange's proposal to lower the amount of the credit 
it provides to members that utilize the SCAR routing strategy and 
execute orders on BX will not competitively disadvantage any category 
of Exchange member. The proposal will merely ensure that the amount of 
the credit is better aligned with the recently lowered corresponding 
credits that BX provides to its own members that remove liquidity from 
that exchange.
    The Exchange notes that its members are free to trade on other 
venues to the extent they believe that the proposed qualification 
criteria for or amounts of these credits are not attractive. As one can 
observe by looking at any market share chart, price competition between 
exchanges is fierce, with liquidity and market share moving freely 
between exchanges in reaction to fee and credit changes. The Exchange 
notes that its pricing tier structure is consistent with broker-dealer 
fee practices as well as the other industries, as described above.
Intermarket Competition
    In terms of inter-market competition, the Exchange notes that it 
operates in a highly competitive market in which market participants 
can readily favor competing venues if they deem fee levels at a 
particular venue to be excessive, or rebate opportunities available at 
other venues to be more favorable. In such an environment, the Exchange 
must continually adjust its credits and fees to remain competitive with 
other exchanges and with alternative trading systems that have been 
exempted from compliance with the statutory standards applicable to 
exchanges. Because competitors are free to modify their own credits and 
fees in response, and because market participants may readily adjust 
their order routing practices, the Exchange believes that the degree to 
which credit or fee changes in this market may impose any burden on 
competition is extremely limited.
    The proposed amended credits are reflective of this competition 
because, even as one of the largest U.S. equities exchanges by volume, 
the Exchange has less than 20% market share, which in most markets 
could hardly be categorized as having enough market power to burden 
competition. Moreover, as noted above, price competition between 
exchanges is fierce, with liquidity and market share moving freely 
between exchanges in reaction to fee and credit changes. This is in 
addition to free flow of order flow to and among off-exchange venues 
which comprises upwards of 44% of industry volume.
    The Exchange's proposals to amend three of its transaction credits 
are pro-competitive in that the Exchange intends for them to increase 
liquidity on the Exchange, thereby rendering the Exchange a more 
attractive and vibrant venue to market participants. Meanwhile, the 
Exchange's proposal to lower the credit it offers to members that use 
SCAR and execute orders on BX is pro-competitive in that the proposal 
will result in better competitive alignment between the SCAR credit and 
the amounts of liquidity removal credits that BX provides to its own 
members that remove liquidity from that exchange.
    In sum, if the changes proposed herein are unattractive to market 
participants, it is likely that the Exchange will lose market share as 
a result. Accordingly, the Exchange does not believe that the proposed 
changes will impair the ability of members or competing order execution 
venues to maintain their competitive standing in the financial markets.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act.\17\
---------------------------------------------------------------------------

    \17\ 15 U.S.C. 78s(b)(3)(A)(ii).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is: (i) 
Necessary or appropriate in the public interest; (ii) for the 
protection of investors; or (iii) otherwise in furtherance of the 
purposes of the Act. If the Commission takes such action, the 
Commission shall institute proceedings to determine whether the 
proposed rule should be approved or disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NASDAQ-2021-043 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-2021-043. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change that are filed with 
the Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE,

[[Page 29321]]

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. Persons submitting 
comments are cautioned that we do not redact or edit personal 
identifying information from comment submissions. You should submit 
only information that you wish to make available publicly. All 
submissions should refer to File Number SR-NASDAQ-2021-043 and should 
be submitted on or before June 22, 2021.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\18\
---------------------------------------------------------------------------

    \18\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-11405 Filed 5-28-21; 8:45 am]
BILLING CODE 8011-01-P
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