Notice2024-18704
Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Its Schedule of Credits at Equity 7, Section 118(a)
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 21, 2024
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 89 Issue 162 (Wednesday, August 21, 2024)</title>
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[Federal Register Volume 89, Number 162 (Wednesday, August 21, 2024)]
[Notices]
[Pages 67690-67693]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-18704]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-100739; File No. SR-NASDAQ-2024-044]
Self-Regulatory Organizations; The Nasdaq Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Amend Its Schedule of Credits at Equity 7, Section 118(a)
August 15, 2024.
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 August 1, 2024, 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.
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\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 schedule of 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 <a href="https://listingcenter.nasdaq.com/rulebook/nasdaq/rules">https://listingcenter.nasdaq.com/rulebook/nasdaq/rules</a>, 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
[[Page 67691]]
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, with
respect to its schedule of credits for non-displayed midpoint orders
(other than Supplemental Orders) that provide liquidity, the Exchange
proposes to (i) add a new credit in Tapes A, B, and C, (ii) cap the
maximum credit per share executed that a member organization can
receive when certain requirements are met within Section 118(a)(1), and
(iii) reorder the schedule of credits.
The Exchange proposes to provide a new credit of $0.0028 for
midpoint orders (excluding buy (sell) orders with Midpoint pegging that
receive an execution price that is lower (higher) than the midpoint of
the NBBO) if the member provides midpoint liquidity that represents at
least 0.30% or more of Consolidated Volume during the month. This
change will apply to Tapes A, B, and C. The purpose of the new credit
is to incentivize liquidity adding activity and provide incentive to
members that provide non-displayed liquidity to the Exchange to do so
through midpoint orders. The Exchange believes that if such incentive
is effective, then any ensuing increase in liquidity to the Exchange
will improve market quality, to the benefit of all participants.
The Exchange currently provides a supplemental credit for midpoint
orders (excluding buy (sell) orders with Midpoint pegging that receive
an execution price that is lower (higher) than the midpoint of the
NBBO), in addition to the other credits provided for non-displayed
orders that provide liquidity, if the member executes a requisite ADV
of shares through M-ELO, as follows: (a) $0.0001 per share executed for
midpoint orders (excluding buy (sell) orders with Midpoint pegging that
receive an execution price that is lower (higher) than the midpoint of
the NBBO) if the member executes an ADV of at least 2.5 million up to,
but not including 4 million shares through M-ELO; or (b) $0.0002 per
share executed for midpoint orders (excluding buy (sell) orders with
Midpoint pegging that receive an execution price that is lower (higher)
than the midpoint of the NBBO) if the member executes an ADV of 4
million or more shares through M-ELO. The Exchange proposes that a
member receiving this supplemental credit may receive combined credits
(regular and supplemental) of up to a maximum of $0.0028 per share
executed.
The Exchange notes that it proposes to cap combined regular and
supplemental credits at $0.0028 per share executed to manage the costs
to the Exchange of providing these incentives. The Exchange has only
limited resources available to it for incentive programs, and it must
ensure that it allocates such resources appropriately to optimize their
intended impacts.
Lastly, for clarifying purposes, the Exchange proposes to reorder
the schedule of credits for non-displayed orders (other than
Supplemental Orders) that provide liquidity by moving the
aforementioned supplemental credit further down in the rebate schedule
to immediately precede the other supplemental credits offered.
2. Statutory Basis
The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\3\ in general, and furthers the objectives of Sections
6(b)(4) and 6(b)(5) of the Act,\4\ in particular, in that it provides
for the equitable allocation of reasonable dues, fees and other charges
among members and issuers and other persons using any facility, and is
not designed to permit unfair discrimination between customers,
issuers, brokers, or dealers.
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\3\ 15 U.S.C. 78f(b).
\4\ 15 U.S.C. 78f(b)(4) and (5).
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The Proposals Are Reasonable
The Exchange's proposed changes to its schedule of credits 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'. . . .'' \5\
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\5\ 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)).
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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.'' \6\
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\6\ Securities Exchange Act Release No. 51808 (June 9, 2005), 70
FR 37496, 37499 (June 29, 2005) (``Regulation NMS Adopting
Release'').
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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. As such, the
proposal represents a reasonable attempt 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
credit of $0.0028 for midpoint orders (excluding buy (sell) orders with
Midpoint pegging that receive an execution price that is lower (higher)
than the midpoint of the NBBO) if the member provides midpoint
liquidity that represents at least 0.30% or more of Consolidated Volume
during the month for Tapes A, B, and C. This proposal is reasonable
because it will incentivize liquidity adding activity and provide
incentive to members that provide non-displayed liquidity to the
Exchange to do so through midpoint orders. The Exchange believes that
if such incentive is effective, then any ensuring increase in liquidity
to the Exchange will improve
[[Page 67692]]
market quality, to the benefit of all participants.
The Exchange believes that it is reasonable to cap the amount of
combined regular and supplemental credits it proposes to offer members
who add liquidity through midpoint orders to $0.0028 per share
executed. This cap will allow the Exchange to manage its costs of
providing these incentives. The Exchange has only limited resources
available to it for incentive programs, and it must ensure that it
allocates such resources appropriately to optimize their intended
impacts.
The Exchange also believes that it is reasonable to reorder the
schedule of credits for non-displayed orders (other than Supplemental
Orders) that provide liquidity to increase clarity in the Rules,
consistent with the public interest and protection of investors.
The Proposals Are Equitable Allocations of Credits
The Exchange believes that it is equitable to establish a new
transaction credit and otherwise increase the amount of credit a member
may receive for providing non-displayed liquidity through midpoint
orders. To the extent that the Exchange succeeds in increasing the
levels of liquidity and activity on the Exchange, the Exchange will
experience improvements in its market quality, which stands to benefit
all market participants. The Exchange also believes that the proposed
clarifying changes (i.e., reordering the schedule of credits) and the
proposal to cap rebates at $0.0028 for members receiving certain
supplemental credits is equitable because the changes and the cap will
be applied uniformly to all 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
enhances price discovery and improves the overall quality of the equity
markets.
The Exchange believes that its proposals to adopt a new credit for
providing non-displayed liquidity through midpoint orders, impose a cap
on the amount of combined regular and supplemental credits it proposes
to offer members receiving certain supplemental credits, and make
clarifying changes, as described above, are not unfairly discriminatory
because the changes are not intended to advantage any particular member
and will be applied uniformly to all members. Moreover, the 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 in midpoint
orders on the 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 change 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, the Exchange's proposals to add a new transaction
credit, impose a cap on the maximum rebate offered to members receiving
certain supplemental credits, and make clarifying changes are intended
to have market-improving effects, to the benefit of all members. Any
member may elect to achieve the level of liquidity in midpoint orders
required to qualify for the new credit. The other proposed changes also
apply equally and will be applied uniformly to all members.
The Exchange notes that its members are free to trade on other
venues to the extent they believe that the Exchange's fee schedule is
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.
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 credit and own
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 new and amended credits are reflective of this
competition because, as a threshold issue, 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, price
competition between exchanges is fierce, with liquidity and market
share moving freely between exchanges in reaction to credit and fee
changes. This is an addition to free flow of order flow to and among
off-exchange venues which comprises more than 40% of industry volume in
recent months.
The Exchange's proposal to add a new transaction credit is pro-
competitive in that the Exchange intends for the credit to increase
liquidity addition activity in midpoint orders on the Exchange, thereby
rendering the Exchange more attractive and vibrant to 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.
[[Page 67693]]
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.\7\
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\7\ 15 U.S.C. 78s(b)(3)(A)(ii).
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At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is: (i)
necessary or appropriate in the public interest; (ii) for the
protection of investors; or (iii) otherwise in furtherance of the
purposes of the Act. If the Commission takes such action, the
Commission shall institute proceedings to determine whether the
proposed rule should be approved or disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
<bullet> Use the Commission's internet comment form (<a href="https://www.sec.gov/rules/sro.shtml">https://www.sec.gov/rules/sro.shtml</a>); or
<bullet> Send an email to <a href="/cdn-cgi/l/email-protection#740601181159171b1919111a0007340711175a131b02"><span class="__cf_email__" data-cfemail="1062657c753d737f7d7d757e6463506375733e777f66">[email protected]</span></a>. Please include
file number SR-NASDAQ-2024-044 on the subject line.
Paper Comments
<bullet> 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-2024-044. 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 (<a href="https://www.sec.gov/rules/sro.shtml">https://www.sec.gov/rules/sro.shtml</a>). 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
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. Do not
include personal identifiable information in submissions; you should
submit only information that you wish to make available publicly. We
may redact in part or withhold entirely from publication submitted
material that is obscene or subject to copyright protection. All
submissions should refer to file number SR-NASDAQ-2024-044 and should
be submitted on or before September 11, 2024.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\8\
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\8\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-18704 Filed 8-20-24; 8:45 am]
BILLING CODE 8011-01-P
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