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), 38772-38776 [2021-15549]

Download as PDF 38772 Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Notices For the Commission, by the Division of Investment Management, pursuant to delegated authority. J. Matthew DeLesDernier, Assistant Secretary. 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 [FR Doc. 2021–15545 Filed 7–21–21; 8:45 am] BILLING CODE 8011–01–P 1. Purpose SECURITIES AND EXCHANGE COMMISSION [Release No. 34–92433; File No. SR– NASDAQ–2021–058] 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) July 16, 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 July 8, 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. lotter on DSK11XQN23PROD with NOTICES1 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 1 15 2 17 U.S.C. 78s(b)(1). CFR 240.19b–4. VerDate Sep<11>2014 17:10 Jul 21, 2021 Jkt 253001 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 make the following changes with respect to its schedule of credits for displayed quotes/orders (other than Supplemental Orders or Designated Retail Orders) that provide liquidity: (1) Add a new credit of $0.0028 per share executed; (2) amend the criteria for an existing credit of $0.0029 per share executed; and (3) eliminate an existing credit of $0.0029 per share executed. The Exchange also proposes to add two new non-cumulative supplemental credits to members for displayed quotes/orders (other than Supplemental Orders) that provide liquidity, of $0.0001 and $0.00015 per share executed, respectively. New Credit for MELO Activity and Adding Liquidity to the Exchange The Exchange proposes to add a new credit for displayed quotes/orders (other than Supplemental Orders or Designated Retail Orders) that provide liquidity of $0.0028 per share executed to a member: (i) With shares of liquidity provided in all securities through one or more of its Nasdaq Market Center MPIDs that represent 0.375% or more of Consolidated Volume 3 during the month; (ii) that executes an average daily volume (‘‘ADV’’) of at least 500,000 shares of Midpoint Extended Life Orders (‘‘M–ELOs’’) 4 during the month; and (iii) that increases the extent of its ADV of MELO orders in all securities by 100% or more during the month relative to the month of June 2021. 3 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. 4 Pursuant to Equity 4, Rule 4702(b)(14), a ‘‘Midpoint Extended Life Order’’ is an Order Type with a Non-Display Order Attribute that is priced at the midpoint between the NBBO and that will not be eligible to execute until a minimum period of 10 milliseconds has passed after acceptance of the Order by the System. PO 00000 Frm 00098 Fmt 4703 Sfmt 4703 The purpose of this new credit is to provide a new means to incent members to provide a substantial amount of liquidity to the Exchange generally as well as to increase the extent to which they engage in MELO activity on the Exchange and grow the extent of such activity over time. An increase in MELO activity and overall liquidity stands to improve the quality of the market generally, and of MELO, in particular, to the benefit of all market participants. Amended Displayed Credit The Exchange proposes to amend its existing credit of $0.0029 per share executed to a member: (i) With shares of liquidity provided in all securities through one or more of its Nasdaq Market Center MPIDs that represent more than 0.50% of Consolidated Volume during the month, including shares of liquidity provided with respect to securities that are listed on exchanges other than Nasdaq or NYSE that represent more than 0.10% of Consolidated Volume, and (ii) with at least a 15% ratio of volume that sets the NBBO provided through one or more of its Nasdaq Market Center MPIDs to all displayed volume that provides liquidity through one or more of its Nasdaq Market Center MPIDs. The Exchange first proposes to amend this credit by raising the threshold percentage of Consolidated Volume needed to qualify for the credit from 0.50% to 0.60%. This proposed amendment will encourage those participants that already qualify for the credit to increase the extent to which they add liquidity to the Exchange in order to continue to qualify for it. From time to time, the Exchange believes it is reasonable to recalibrate the criteria for credits such as this one to ensure that the credits remain appropriately challenging for participants to attain in light of changes to their levels of activity on the Exchange. Second, the Exchange proposes to eliminate the criterion that a member must have at least a 15% ratio of volume that sets the NBBO to all displayed volume that provides liquidity to the Exchange, and to replace it with the requirement that a member add at least 0.175% of Consolidated Volume during the month in non-displayed orders (excluding midpoint orders) for securities in any tape during the month. The Exchange proposes to eliminate the existing criterion because it proved too difficult for members to meet in combination with the other criterion set forth in the credit, and has hindered the credit in achieving its intended effect. The Exchange has limited resources at its disposal to devote to incentives and E:\FR\FM\22JYN1.SGM 22JYN1 Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Notices it periodically reassesses the allocation of those resources when they prove to be ineffective. The proposed replacement criterion will be more readily attainable for members and will also improve market quality by incenting members to add substantial volumes of non-displayed liquidity to the Exchange. Elimination of MARS Credit The Exchange proposes to eliminate an existing $0.0029 per share executed credit that it provides to a member (i) with shares of liquidity provided in all securities through one or more of its Nasdaq Market Center MPIDs that represent more than 0.30% of Consolidated Volume during the month and (ii) which qualifies for the NOM Market Access and Routing subsidy or ‘‘MARS’’ program.5 This credit has not been effective in accomplishing its intended purpose, which is to incent members to increase their liquidity adding activity on both Nasdaq and NOM. The Exchange has observed that historically, few members have received this credit, and it has served to neither meaningfully increase activity on the Exchange or NOM nor improve the quality of those markets. The Exchange therefore proposes to eliminate it. The Exchange notes that even after it eliminates this credit, it will continue to offer a similarly structured credit of $0.0030 per share executed for members that meet specified volume requirements and qualify for the Tier 4 of the MARS program. lotter on DSK11XQN23PROD with NOTICES1 New Supplemental Credits for MELOs and Midpoint Orders That Execute Against MELOs The Exchange proposes to offer two new supplemental credits to a member that either (i) grows its ADV of MELO and midpoint orders (that execute against MELO orders) during a month by a threshold amount relative to a baseline month or (ii) that provides a threshold ADV through midpoint orders provided and MELO Orders and also grows its ADV in midpoint orders provided and MELO Orders by a threshold amount relative to a baseline month. These credits will be in addition 5 Under the MARS program, NOM pays a subsidy to NOM Participants that provide certain order routing functionalities to other NOM Participants and/or that use such functionalities themselves. The specified MARS Payment is paid on all executed Eligible Contracts that add liquidity, which are routed to NOM through a participating NOM Participant’s System and meet the requisite Eligible Contracts ADV. See Securities Exchange Act Release No. 79251 (November 7, 2016), 81 FR 79536 (November 14, 2016) (SR–NASDAQ–2016– 149). VerDate Sep<11>2014 17:10 Jul 21, 2021 Jkt 253001 to other credits otherwise available to members for adding displayed liquidity to the Exchange (other than Supplemental Orders), but a member’s activity will qualify it to receive only one of the two new supplemental credits at a time, meaning that they are not cumulative. The first supplemental credit, of $0.0001 per share executed, will be available to a member that, through one or more of its Nasdaq Market Center MPIDs, either: (i) Increases the extent to which its ADV of MELO Orders and/or midpoint orders (that executes against MELO Orders) in all securities by an ADV of 1 million shares or more during the month relative to the month of June 2021; or (ii) executes a combined volume of at least 3 million shares ADV through midpoint orders provided and MELO Orders during the month and increases the extent of its ADV of midpoint orders provided and MELO Orders in all securities by 100% or more during the month relative to the month of June 2021. A second, higher supplemental credit of $0.00015 per share executed, will be available to a member that, through one or more of its Nasdaq Market Center MPIDs, either: (i) increases the extent to which its ADV of MELO Orders and/or midpoint orders (that executes against MELO Orders) in all securities by an ADV of 2 million shares or more during the month relative to the month of June 2021; or (ii) executes a combined volume of at least 4 million shares ADV through midpoint orders provided and MELO Orders during the month and increases the extent of its ADV of midpoint orders provided and MELO Orders in all securities by 150% or more during the month relative to the month of June 2021. The purpose of these new credits is to provide extra incentives to members to be actively involved in MELO on the Exchange, as well as to grow substantially the extent to which they submit MELO orders to the Exchange and provide midpoint orders that execute against MELO orders relative to a recent benchmark month. The Exchange believes that if such incentives are effective, then any ensuing increase in MELO activity on the Exchange will once again improve market quality, to the benefit of all participants. 2. Statutory Basis The Exchange believes that its proposals are consistent with Section 6(b) of the Act,6 in general, and further the objectives of Sections 6(b)(4) and PO 00000 6 15 U.S.C. 78f(b). Frm 00099 Fmt 4703 Sfmt 4703 38773 6(b)(5) of the Act,7 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 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’ . . . .’’ 8 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.’’ 9 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 7 15 U.S.C. 78f(b)(4) and (5). 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)). 9 Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005) (‘‘Regulation NMS Adopting Release’’). 8 NetCoalition E:\FR\FM\22JYN1.SGM 22JYN1 lotter on DSK11XQN23PROD with NOTICES1 38774 Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Notices 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 establish a new $0.0028 per share executed transaction credit, at Equity 7, Section 118(a), for members that provide liquidity of at least 0.375% of Consolidated Volume, execute an ADV of at least 500,000 shares of MELO Orders during the month and increase the extent of their ADV of MELO Orders in all securities by 100% or more during the month relative to the month of June 2021. The new credit will encourage substantial activity on the Exchange as well as substantial activity and growth in MELO Orders. Any increased activity and growth will improve the quality of the market for MELOs as well as overall market quality, to the benefit of both MELO and other market participants. The Exchange also believes that it is reasonable to amend its existing credit of $0.0029 per share executed, which applies to members that add liquidity representing 0.50% or more of Consolidated Volume during the month, including shares of liquidity in Tape B Securities of 0.10% or more of Consolidated Volume, and which achieve at least a 15% ratio of volume that sets the NBBO to all displayed liquidity provided. The proposed amendments will increase the threshold percentage of Consolidated Volume required to qualify for the credit from 0.50% to 0.60% and replace the NBBOsetting ratio criteria with a minimum non-displayed volume add requirement (exclusive of midpoint orders) of 0.175% of Consolidated Volume. The proposed increase in the Consolidated Volume threshold will encourage members that currently qualify for the credit to further increase the extent of their liquidity adding activity on the Exchange to continue to do so. From time to time, the Exchange believes it is reasonable to recalibrate the criteria for credits such as this one to ensure that the credits remain appropriately challenging for participants to attain in light of changes to their levels of activity VerDate Sep<11>2014 17:10 Jul 21, 2021 Jkt 253001 on the Exchange. Meanwhile, the elimination of the NBBO-setting ratio requirement is reasonable because it proved too difficult for members to meet in combination with the other criterion set forth in the credit, and has hindered the credit in achieving its intended effect. The Exchange has limited resources at its disposal to devote to incentives and it periodically reassesses the allocation of those resources when they prove to be ineffective. The proposal to replace this criterion with a requirement that a member add at least 0.175% of Consolidated Volume during the month in non-displayed orders (excluding midpoint orders) is reasonable because the proposed replacement criterion will be more readily attainable for members and will also improve market quality by incenting members to add substantial volumes of non-displayed liquidity to the Exchange. It is also reasonable for the Exchange to eliminate its existing $0.0029 per share executed credit that it provides to a member that adds liquidity representing more than 0.30% of Consolidated Volume during the month and which qualifies for the MARS program. This credit has not been effective in accomplishing its intended purpose, which is to incent members to increase their liquidity adding activity on both Nasdaq and NOM. The Exchange has observed that historically, few members have received this credit, and it has served to neither meaningfully increase activity on the Exchange or NOM nor improve the quality of those markets. Finally, the Exchange believes it is reasonable to establish two new supplemental credits available to a member that either (i) grows its ADV of MELO and midpoint orders (that execute against MELO orders) during a month by a threshold amount relative to a baseline month or (ii) that executes during a month a threshold ADV through midpoint orders provided and MELO orders and also grows its ADV in midpoint orders provided and MELO Orders by a threshold amount relative to a baseline month. These new supplemental credits will be noncumulative, meaning that only one of them is attainable at once. These proposals are reasonable because they will provide extra incentives to members to engage in substantial amounts of MELO-related activity on the Exchange during a month, as well as to grow substantially the extent to which they do so relative to a recent benchmark month. The Exchange believes that if such incentives are effective, then any ensuing increase in PO 00000 Frm 00100 Fmt 4703 Sfmt 4703 MELO Orders and executions on the Exchange will improve the quality of the MELO market, and the market overall, to the benefit of MELO and all market participants. 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 it is an equitable allocation to establish new transaction credits and otherwise modify the eligibility requirements for its transaction credits because the proposals will encourage members to increase the extent to which they add liquidity to the Exchange. To the extent that the Exchange succeeds in increasing the levels of liquidity and activity on the Exchange, including in segments for which there is an observed need or demand, such as non-displayed, MELO, and Tape B securities, then the Exchange will experience improvements in its market quality, which stands to benefit all market participants. The Exchange also believes it is equitable to recalibrate or revise existing criteria for its credits to ensure that the credits remain appropriately challenging for participants to attain in light of changes to their levels of activity on the Exchange. It is also equitable to eliminate a MARS-related credit that has not been utilized historically and which has not fulfilled its intended purpose. The Exchange has limited resources to devote to incentive programs and periodically reallocates those resources to programs that are more likely to be utilized and effective. 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 E:\FR\FM\22JYN1.SGM 22JYN1 Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Notices 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 adopt new credits or otherwise amend the qualifying criteria for 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 provision or activity on the Exchange, including in segments for which there is an observed need or demand, such as non-displayed, MELO, and Tape B securities. The Exchange also believes it is not unfairly discriminatory to recalibrate or revise existing criteria for its credits to ensure that the credits remain appropriately challenging for participants to attain in light of changes to their levels of activity on the Exchange. Meanwhile, it is not unfairly discriminatory to eliminate a MARSrelated credit that has not been utilized historically and which has not fulfilled its intended purpose. The Exchange has limited resources to devote to incentive programs and periodically reallocates those resources to programs that are more likely to be utilized and effective. The Exchange notes that it will continue to offer another similarly-structured credit to members that qualify for Tier 4 of the MARS program. 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. lotter on DSK11XQN23PROD with NOTICES1 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 proposals will place any category of Exchange participant at a competitive disadvantage. As noted above, Nasdaq’s proposals to add and amend transaction credits are intended to have market-improving effects, to the benefit of all members. Any member may elect to achieve the VerDate Sep<11>2014 17:10 Jul 21, 2021 Jkt 253001 levels of liquidity or activity required in order to qualify for the new or amended credits. Likewise, the Exchange’s proposal will not duly burden competition to eliminate its $.0029 per share executed MARS credit as members have not utilized the credit historically, such that its elimination will have limited or no impact. The Exchange has limited resources to devote to incentive programs and periodically reallocates those resources to programs that are more likely to be utilized and effective. The Exchange notes that it will continue to offer another similarly-structured credit to members that qualify for Tier 4 of the MARS program. 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 credit changes. The Exchange notes that its pricing tier structure is consistent with brokerdealer 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 credit 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 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 in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which credit changes in this market may impose any burden on competition is extremely limited. The proposed new and 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 PO 00000 Frm 00101 Fmt 4703 Sfmt 4703 38775 reaction to 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 add new and amend its transaction credits are pro-competitive in that the Exchange intends for the changes to increase liquidity addition and activity on the Exchange, thereby rendering the Exchange a more attractive and vibrant venue to market participants. 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.10 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–2021–058 on the subject line. 10 15 E:\FR\FM\22JYN1.SGM U.S.C. 78s(b)(3)(A)(ii). 22JYN1 38776 Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / 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–2021–058. 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 makeavailable publicly. All submissions should refer to File Number SR–NASDAQ–2021–058 and should be submitted on or before August 12, 2021. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.11 J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2021–15549 Filed 7–21–21; 8:45 am] Notice of an application under section 6(c) of the Investment Company Act of 1940 (the ‘‘Act’’) for an exemption from sections 18(a)(2), 18(c) and 18(i) of the Act and for an order pursuant to section 17(d) of the Act and rule 17d–1 under the Act. Summary of Application: Applicants request an order to permit certain registered closed end investment companies to issue multiple classes of shares of beneficial interest with varying sales loads and to impose asset-based distribution and/or service fees. Applicants: MVP Private Markets Fund (‘‘Initial Fund’’), and Portfolio Advisors, LLC (‘‘Adviser’’). Filing Dates: The application was filed on June 30, 2021. Hearing or Notification of Hearing: An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing on any application by emailing the SEC’s Secretary at Secretarys-Office@sec.gov and serving the relevant applicant with a copy of the request by email, if an email address is listed for the relevant applicant below, or personally or by mail, if a physical address is listed for the relevant applicant below. Hearing requests should be received by the Commission by 5:30 p.m. on August 10, 2021, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Pursuant to rule 0–5 under the Act, hearing requests should state the nature of the writer’s interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by emailing the Commission’s Secretary. joshua.deringer@ faegredrinker.com. ADDRESSES: BILLING CODE 8011–01–P Lisa Reid Ragen, Branch Chief, at (202) 551– 6825 (Division of Investment Management, Chief Counsel’s Office). FOR FURTHER INFORMATION CONTACT: SECURITIES AND EXCHANGE COMMISSION lotter on DSK11XQN23PROD with NOTICES1 Investment Company Act Release No. 34334; 812–15244; MVP Private Markets Fund, et al. July 16, 2021. Securities and Exchange Commission (‘‘Commission’’). ACTION: Notice. AGENCY: 11 17 CFR 200.30–3(a)(12). VerDate Sep<11>2014 17:10 Jul 21, 2021 Jkt 253001 For Applicants’ representations, legal analysis, and condition, please refer to Applicants’ application, dated June 30, 2021, which may be obtained via the Commission’s website by searching for the file number, using the Company name box, at https://www.sec.gov/ search/search.htm, or by calling (202) 551–8090. SUPPLEMENTARY INFORMATION: PO 00000 Frm 00102 Fmt 4703 Sfmt 4703 For the Commission, by the Division of Investment Management, under delegated authority. J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2021–15546 Filed 7–21–21; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–92428; File No. SR–NYSE– 2021–40] Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change To Adopt on a Permanent Basis the Pilot Program for Market-Wide Circuit Breakers in Rule 7.12 July 16, 2021. Pursuant to Section 19(b)(1) 1 of the Securities Exchange Act of 1934 (the ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 notice is hereby given that, on July 2, 2021, New York Stock Exchange LLC (‘‘NYSE’’ or the ‘‘Exchange’’) 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 selfregulatory organization. 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 adopt on a permanent basis the pilot program for Market-Wide Circuit Breakers in Rule 7.12. The proposed rule change is available on the Exchange’s website at www.nyse.com, at the principal office of the Exchange, and at the Commission’s Public Reference Room. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, 1 15 U.S.C. 78s(b)(1). U.S.C. 78a. 3 17 CFR 240.19b–4. 2 15 E:\FR\FM\22JYN1.SGM 22JYN1

Agencies

[Federal Register Volume 86, Number 138 (Thursday, July 22, 2021)]
[Notices]
[Pages 38772-38776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15549]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-92433; File No. SR-NASDAQ-2021-058]


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)

July 16, 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 July 8, 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.
---------------------------------------------------------------------------

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 make the following changes with respect to its 
schedule of credits for displayed quotes/orders (other than 
Supplemental Orders or Designated Retail Orders) that provide 
liquidity: (1) Add a new credit of $0.0028 per share executed; (2) 
amend the criteria for an existing credit of $0.0029 per share 
executed; and (3) eliminate an existing credit of $0.0029 per share 
executed. The Exchange also proposes to add two new non-cumulative 
supplemental credits to members for displayed quotes/orders (other than 
Supplemental Orders) that provide liquidity, of $0.0001 and $0.00015 
per share executed, respectively.
New Credit for MELO Activity and Adding Liquidity to the Exchange
    The Exchange proposes to add a new credit for displayed quotes/
orders (other than Supplemental Orders or Designated Retail Orders) 
that provide liquidity of $0.0028 per share executed to a member: (i) 
With shares of liquidity provided in all securities through one or more 
of its Nasdaq Market Center MPIDs that represent 0.375% or more of 
Consolidated Volume \3\ during the month; (ii) that executes an average 
daily volume (``ADV'') of at least 500,000 shares of Midpoint Extended 
Life Orders (``M-ELOs'') \4\ during the month; and (iii) that increases 
the extent of its ADV of MELO orders in all securities by 100% or more 
during the month relative to the month of June 2021.
---------------------------------------------------------------------------

    \3\ 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.
    \4\ Pursuant to Equity 4, Rule 4702(b)(14), a ``Midpoint 
Extended Life Order'' is an Order Type with a Non-Display Order 
Attribute that is priced at the midpoint between the NBBO and that 
will not be eligible to execute until a minimum period of 10 
milliseconds has passed after acceptance of the Order by the System.
---------------------------------------------------------------------------

    The purpose of this new credit is to provide a new means to incent 
members to provide a substantial amount of liquidity to the Exchange 
generally as well as to increase the extent to which they engage in 
MELO activity on the Exchange and grow the extent of such activity over 
time. An increase in MELO activity and overall liquidity stands to 
improve the quality of the market generally, and of MELO, in 
particular, to the benefit of all market participants.
Amended Displayed Credit
    The Exchange proposes to amend its existing credit of $0.0029 per 
share executed to a member: (i) With shares of liquidity provided in 
all securities through one or more of its Nasdaq Market Center MPIDs 
that represent more than 0.50% of Consolidated Volume during the month, 
including shares of liquidity provided with respect to securities that 
are listed on exchanges other than Nasdaq or NYSE that represent more 
than 0.10% of Consolidated Volume, and (ii) with at least a 15% ratio 
of volume that sets the NBBO provided through one or more of its Nasdaq 
Market Center MPIDs to all displayed volume that provides liquidity 
through one or more of its Nasdaq Market Center MPIDs. The Exchange 
first proposes to amend this credit by raising the threshold percentage 
of Consolidated Volume needed to qualify for the credit from 0.50% to 
0.60%. This proposed amendment will encourage those participants that 
already qualify for the credit to increase the extent to which they add 
liquidity to the Exchange in order to continue to qualify for it. From 
time to time, the Exchange believes it is reasonable to recalibrate the 
criteria for credits such as this one to ensure that the credits remain 
appropriately challenging for participants to attain in light of 
changes to their levels of activity on the Exchange.
    Second, the Exchange proposes to eliminate the criterion that a 
member must have at least a 15% ratio of volume that sets the NBBO to 
all displayed volume that provides liquidity to the Exchange, and to 
replace it with the requirement that a member add at least 0.175% of 
Consolidated Volume during the month in non-displayed orders (excluding 
midpoint orders) for securities in any tape during the month. The 
Exchange proposes to eliminate the existing criterion because it proved 
too difficult for members to meet in combination with the other 
criterion set forth in the credit, and has hindered the credit in 
achieving its intended effect. The Exchange has limited resources at 
its disposal to devote to incentives and

[[Page 38773]]

it periodically reassesses the allocation of those resources when they 
prove to be ineffective. The proposed replacement criterion will be 
more readily attainable for members and will also improve market 
quality by incenting members to add substantial volumes of non-
displayed liquidity to the Exchange.
Elimination of MARS Credit
    The Exchange proposes to eliminate an existing $0.0029 per share 
executed credit that it provides to a member (i) with shares of 
liquidity provided in all securities through one or more of its Nasdaq 
Market Center MPIDs that represent more than 0.30% of Consolidated 
Volume during the month and (ii) which qualifies for the NOM Market 
Access and Routing subsidy or ``MARS'' program.\5\
---------------------------------------------------------------------------

    \5\ Under the MARS program, NOM pays a subsidy to NOM 
Participants that provide certain order routing functionalities to 
other NOM Participants and/or that use such functionalities 
themselves. The specified MARS Payment is paid on all executed 
Eligible Contracts that add liquidity, which are routed to NOM 
through a participating NOM Participant's System and meet the 
requisite Eligible Contracts ADV. See Securities Exchange Act 
Release No. 79251 (November 7, 2016), 81 FR 79536 (November 14, 
2016) (SR-NASDAQ-2016-149).
---------------------------------------------------------------------------

    This credit has not been effective in accomplishing its intended 
purpose, which is to incent members to increase their liquidity adding 
activity on both Nasdaq and NOM. The Exchange has observed that 
historically, few members have received this credit, and it has served 
to neither meaningfully increase activity on the Exchange or NOM nor 
improve the quality of those markets. The Exchange therefore proposes 
to eliminate it. The Exchange notes that even after it eliminates this 
credit, it will continue to offer a similarly structured credit of 
$0.0030 per share executed for members that meet specified volume 
requirements and qualify for the Tier 4 of the MARS program.
New Supplemental Credits for MELOs and Midpoint Orders That Execute 
Against MELOs
    The Exchange proposes to offer two new supplemental credits to a 
member that either (i) grows its ADV of MELO and midpoint orders (that 
execute against MELO orders) during a month by a threshold amount 
relative to a baseline month or (ii) that provides a threshold ADV 
through midpoint orders provided and MELO Orders and also grows its ADV 
in midpoint orders provided and MELO Orders by a threshold amount 
relative to a baseline month. These credits will be in addition to 
other credits otherwise available to members for adding displayed 
liquidity to the Exchange (other than Supplemental Orders), but a 
member's activity will qualify it to receive only one of the two new 
supplemental credits at a time, meaning that they are not cumulative.
    The first supplemental credit, of $0.0001 per share executed, will 
be available to a member that, through one or more of its Nasdaq Market 
Center MPIDs, either: (i) Increases the extent to which its ADV of MELO 
Orders and/or midpoint orders (that executes against MELO Orders) in 
all securities by an ADV of 1 million shares or more during the month 
relative to the month of June 2021; or (ii) executes a combined volume 
of at least 3 million shares ADV through midpoint orders provided and 
MELO Orders during the month and increases the extent of its ADV of 
midpoint orders provided and MELO Orders in all securities by 100% or 
more during the month relative to the month of June 2021. A second, 
higher supplemental credit of $0.00015 per share executed, will be 
available to a member that, through one or more of its Nasdaq Market 
Center MPIDs, either: (i) increases the extent to which its ADV of MELO 
Orders and/or midpoint orders (that executes against MELO Orders) in 
all securities by an ADV of 2 million shares or more during the month 
relative to the month of June 2021; or (ii) executes a combined volume 
of at least 4 million shares ADV through midpoint orders provided and 
MELO Orders during the month and increases the extent of its ADV of 
midpoint orders provided and MELO Orders in all securities by 150% or 
more during the month relative to the month of June 2021.
    The purpose of these new credits is to provide extra incentives to 
members to be actively involved in MELO on the Exchange, as well as to 
grow substantially the extent to which they submit MELO orders to the 
Exchange and provide midpoint orders that execute against MELO orders 
relative to a recent benchmark month. The Exchange believes that if 
such incentives are effective, then any ensuing increase in MELO 
activity on the Exchange will once again improve market quality, to the 
benefit of all participants.
2. Statutory Basis
    The Exchange believes that its proposals are consistent with 
Section 6(b) of the Act,\6\ in general, and further the objectives of 
Sections 6(b)(4) and 6(b)(5) of the Act,\7\ 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.
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78f(b).
    \7\ 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 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' . . . .'' \8\
---------------------------------------------------------------------------

    \8\ 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.'' \9\
---------------------------------------------------------------------------

    \9\ 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

[[Page 38774]]

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 establish a new 
$0.0028 per share executed transaction credit, at Equity 7, Section 
118(a), for members that provide liquidity of at least 0.375% of 
Consolidated Volume, execute an ADV of at least 500,000 shares of MELO 
Orders during the month and increase the extent of their ADV of MELO 
Orders in all securities by 100% or more during the month relative to 
the month of June 2021. The new credit will encourage substantial 
activity on the Exchange as well as substantial activity and growth in 
MELO Orders. Any increased activity and growth will improve the quality 
of the market for MELOs as well as overall market quality, to the 
benefit of both MELO and other market participants.
    The Exchange also believes that it is reasonable to amend its 
existing credit of $0.0029 per share executed, which applies to members 
that add liquidity representing 0.50% or more of Consolidated Volume 
during the month, including shares of liquidity in Tape B Securities of 
0.10% or more of Consolidated Volume, and which achieve at least a 15% 
ratio of volume that sets the NBBO to all displayed liquidity provided. 
The proposed amendments will increase the threshold percentage of 
Consolidated Volume required to qualify for the credit from 0.50% to 
0.60% and replace the NBBO-setting ratio criteria with a minimum non-
displayed volume add requirement (exclusive of midpoint orders) of 
0.175% of Consolidated Volume. The proposed increase in the 
Consolidated Volume threshold will encourage members that currently 
qualify for the credit to further increase the extent of their 
liquidity adding activity on the Exchange to continue to do so. From 
time to time, the Exchange believes it is reasonable to recalibrate the 
criteria for credits such as this one to ensure that the credits remain 
appropriately challenging for participants to attain in light of 
changes to their levels of activity on the Exchange. Meanwhile, the 
elimination of the NBBO-setting ratio requirement is reasonable because 
it proved too difficult for members to meet in combination with the 
other criterion set forth in the credit, and has hindered the credit in 
achieving its intended effect. The Exchange has limited resources at 
its disposal to devote to incentives and it periodically reassesses the 
allocation of those resources when they prove to be ineffective. The 
proposal to replace this criterion with a requirement that a member add 
at least 0.175% of Consolidated Volume during the month in non-
displayed orders (excluding midpoint orders) is reasonable because the 
proposed replacement criterion will be more readily attainable for 
members and will also improve market quality by incenting members to 
add substantial volumes of non-displayed liquidity to the Exchange.
    It is also reasonable for the Exchange to eliminate its existing 
$0.0029 per share executed credit that it provides to a member that 
adds liquidity representing more than 0.30% of Consolidated Volume 
during the month and which qualifies for the MARS program. This credit 
has not been effective in accomplishing its intended purpose, which is 
to incent members to increase their liquidity adding activity on both 
Nasdaq and NOM. The Exchange has observed that historically, few 
members have received this credit, and it has served to neither 
meaningfully increase activity on the Exchange or NOM nor improve the 
quality of those markets.
    Finally, the Exchange believes it is reasonable to establish two 
new supplemental credits available to a member that either (i) grows 
its ADV of MELO and midpoint orders (that execute against MELO orders) 
during a month by a threshold amount relative to a baseline month or 
(ii) that executes during a month a threshold ADV through midpoint 
orders provided and MELO orders and also grows its ADV in midpoint 
orders provided and MELO Orders by a threshold amount relative to a 
baseline month. These new supplemental credits will be non-cumulative, 
meaning that only one of them is attainable at once. These proposals 
are reasonable because they will provide extra incentives to members to 
engage in substantial amounts of MELO-related activity on the Exchange 
during a month, as well as to grow substantially the extent to which 
they do so relative to a recent benchmark month. The Exchange believes 
that if such incentives are effective, then any ensuing increase in 
MELO Orders and executions on the Exchange will improve the quality of 
the MELO market, and the market overall, to the benefit of MELO and all 
market participants.
    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 it is an equitable allocation to 
establish new transaction credits and otherwise modify the eligibility 
requirements for its transaction credits because the proposals will 
encourage members to increase the extent to which they add liquidity to 
the Exchange. To the extent that the Exchange succeeds in increasing 
the levels of liquidity and activity on the Exchange, including in 
segments for which there is an observed need or demand, such as non-
displayed, MELO, and Tape B securities, then the Exchange will 
experience improvements in its market quality, which stands to benefit 
all market participants. The Exchange also believes it is equitable to 
recalibrate or revise existing criteria for its credits to ensure that 
the credits remain appropriately challenging for participants to attain 
in light of changes to their levels of activity on the Exchange.
    It is also equitable to eliminate a MARS-related credit that has 
not been utilized historically and which has not fulfilled its intended 
purpose. The Exchange has limited resources to devote to incentive 
programs and periodically reallocates those resources to programs that 
are more likely to be utilized and effective.
    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

[[Page 38775]]

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 adopt new credits or 
otherwise amend the qualifying criteria for 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 
provision or activity on the Exchange, including in segments for which 
there is an observed need or demand, such as non-displayed, MELO, and 
Tape B securities. The Exchange also believes it is not unfairly 
discriminatory to recalibrate or revise existing criteria for its 
credits to ensure that the credits remain appropriately challenging for 
participants to attain in light of changes to their levels of activity 
on the Exchange.
    Meanwhile, it is not unfairly discriminatory to eliminate a MARS-
related credit that has not been utilized historically and which has 
not fulfilled its intended purpose. The Exchange has limited resources 
to devote to incentive programs and periodically reallocates those 
resources to programs that are more likely to be utilized and 
effective. The Exchange notes that it will continue to offer another 
similarly-structured credit to members that qualify for Tier 4 of the 
MARS program.
    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 proposals will place any 
category of Exchange participant at a competitive disadvantage.
    As noted above, Nasdaq's proposals to add and amend 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 
or activity required in order to qualify for the new or amended 
credits.
    Likewise, the Exchange's proposal will not duly burden competition 
to eliminate its $.0029 per share executed MARS credit as members have 
not utilized the credit historically, such that its elimination will 
have limited or no impact. The Exchange has limited resources to devote 
to incentive programs and periodically reallocates those resources to 
programs that are more likely to be utilized and effective. The 
Exchange notes that it will continue to offer another similarly-
structured credit to members that qualify for Tier 4 of the MARS 
program.
    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 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 credit 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 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 in response, 
and because market participants may readily adjust their order routing 
practices, the Exchange believes that the degree to which credit 
changes in this market may impose any burden on competition is 
extremely limited.
    The proposed new and 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 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 add new and amend its transaction 
credits are pro-competitive in that the Exchange intends for the 
changes to increase liquidity addition and activity on the Exchange, 
thereby rendering the Exchange a more attractive and vibrant venue to 
market participants.
    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.\10\
---------------------------------------------------------------------------

    \10\ 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-2021-058 on the subject line.

[[Page 38776]]

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-2021-058. 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 makeavailable publicly. All submissions 
should refer to File Number SR-NASDAQ-2021-058 and should be submitted 
on or before August 12, 2021.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\11\
---------------------------------------------------------------------------

    \11\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-15549 Filed 7-21-21; 8:45 am]
BILLING CODE 8011-01-P
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.