80 FR 73016 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Market Quality Incentive Program and Certain Other Fees and Credits for Execution and Routing

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 80, Issue 225 (November 23, 2015)

[Federal Register Volume 80, Number 225 (Monday, November 23, 2015)]
[Notices]
[Pages 73016-73019]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-29705]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-76450; File No. SR-NASDAQ-2015-137]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Amend the Market Quality Incentive Program and Certain Other Fees and 
Credits for Execution and Routing

November 17, 2015.
    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 November 3, 2015, The NASDAQ Stock Market LLC (``Nasdaq'' or the 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') a proposed rule change as described in Items I and II 
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 the 
Substance of the Proposed Rule Change

    Nasdaq is proposing to amend Nasdaq Rule 7014, concerning the 
Exchange's Market Quality Incentive Programs, and Nasdaq Rule 7018, 
governing fees and credits assessed for execution and routing of 
securities priced at $1 or more.
    The text of the proposed rule change is available at 
nasdaq.cchwallstreet.com at Nasdaq principal office [sic], and at the 
Commission's Public Reference Room.

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

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

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

1. Purpose
    Nasdaq is proposing to amend Rule 7014 to add new tiers to the Lead 
Market Maker (``LMM'') Program and to modify credits provided under 
Rule 7018(a).
Rule 7014
    The Exchange is proposing to modify the benefits provided by the 
LMM Program under Rule 7014. Under the LMM Program, a LMM may receive a 
credit of $0.004 per share executed (or $0, in the case of executions 
against Quotes/Orders in the Nasdaq Market Center at less than $1.00 
per share) if it provides displayed liquidity through the Nasdaq Market 
Center. The credit applies to transactions in a Qualified Security \3\ 
and is provided in lieu of credits under Rules 7018 and 7014. A LMM is 
a registered Nasdaq market maker for a Qualified Security that has 
committed to maintain minimum performance standards. A LMM is selected 
by Nasdaq based on factors including, but not limited to, experience 
with making markets in exchange-traded funds and index-linked 
securities, adequacy of capital, willingness to promote Nasdaq as a 
marketplace, issuer preference, operational capacity, support 
personnel, and history of adherence to Nasdaq rules and securities 
laws. Nasdaq may limit the number of LMMs in a security, or modify a 
previously established limit, upon prior written notice to members.
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    \3\ A Qualified Security: (1) Is an exchange-traded fund or 
index-linked security listed on Nasdaq pursuant to Nasdaq Rules 
5705, 5710, or 5720; and (2) has at least one Lead Market Maker. See 
Rule 7014(f)(1).
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    Nasdaq sets minimum performance criteria to qualify as a LMM. These 
minimum performance standards are determined by Nasdaq from time to 
time and may vary depending on the price, liquidity, and volatility of 
the Qualified Security in which the LMM is registered. Nasdaq may apply 
performance measurements that include one or more of the following: (A) 
Percent of time at the national best bid (best offer) (``NBBO''); (B) 
percent of executions better than the NBBO; (C) average displayed size; 
and (D) average quoted spread (collectively, ``LMM Criteria''). The LMM 
Criteria will be established upon written notice to members. Currently, 
the established LMM Criteria requires a LMM to be at the NBBO more than 
15% of the time.\4\
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    \4\ See Equity Trader Alert 2015-109 (http://www.nasdaqtrader.com/TraderNews.aspx?id=ETA2015-109).
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    The Exchange is proposing to provide higher rebates to LMMs the 
greater percentage of the time they are at the NBBO. Specifically, the 
Exchange is creating three rebate tiers. The first tier will provide a 
LMM a rebate of $0.004 per share executed for displayed liquidity (for 
executions above $1) if the LMM is at the NBBO more than 15% of the 
time and up to 20% of the time. The second tier will provide a LMM a 
rebate of $0.0043 per share executed for displayed liquidity (for 
executions above $1) if the LMM is at the NBBO more than 20% of the 
time and up to 50% of the time. The third tier will provide a LMM a 
rebate of $0.0046 per share executed for displayed liquidity (for 
executions above $1) if the LMM is at the NBBO more than 50% of the 
time. As is the case currently under the LMM Program, a LMM will not 
receive a rebate for executions less than $1 per share.
    Under each of the new tiers, the Exchange is also providing a new 
maximum fee for participation in the opening and closing crosses as 
additional incentive to LMMs. Under Rule 7018, a Participant,\5\ 
including a LMM, is assessed a per share executed charge of $0.0015 to 
$0.0008 for participation in the Opening and Closing Crosses.\6\ Under 
the LMM Program, the Exchange is proposing to cap the fee a LMM is 
charged if they qualify for one of the three new tiers. Specifically, 
Nasdaq will provide a maximum Opening and Closing Cross fee of $0.0010 
per share executed to a LMM that qualifies under the first tier

[[Page 73017]]

under new Rule 7014(f)(4), and a maximum opening and Closing Cross fee 
of $0.0000 per share executed to a LMM that qualifies under the second 
or third tier under new Rule 7014(f)(4). A LMM that qualifies for a 
maximum charge under Rule 7014(f)(4) would not be precluded from taking 
advantage of a lower charge provided under Rules 7018(d) or (e).\7\
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    \5\ As defined by Rule 4701(c).
    \6\ See Rule 7018(d) and (e).
    \7\ For example, if a LMM was eligible to receive a maximum 
charge of $0.0010 per share executed under the first tier of Rule 
7014(f)(4), but also qualified for a charge of $0.0008 per share 
executed in the closing cross under Tier A of Rule 7018(d)(2), the 
Participant would receive the lower charge under Rule 7018(d)(2).
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    Nasdaq is also deleting rule text that concerns the performance 
standards applied under Rule 7014(f). The Exchange notes that it is 
applying the current established LMM criteria \8\ under the first tier 
of Rule 7014(f)(4), and expanding the use of the criteria under the 
second and third tiers. Nasdaq may apply the other performance 
measurements noted currently under Rule 7014(f)(2) in the future and 
will amend the rule text to reflect the new criteria based on those 
performance measurements. Nasdaq is also making clarifying changes to 
the rule under Rule 7014(f)(3).
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    \8\ Supra note 4.
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Rule 7018(a)
    Rule 7018(a) concerns fees and credits provided for the use of the 
order execution and routing services of the Nasdaq Market Center by 
members for all securities priced at $1 or more that it trades. Under 
the proposed changes to the rule, Nasdaq is proposing to eliminate 
certain credit tiers, add new credit tiers and modify existing credit 
tier [sic].
    First, Nasdaq is proposing to delete four credit tiers that apply 
to securities of each of the three Tape securities. Specifically, 
Nasdaq is proposing to:
     Eliminate the $0.00305 per share executed credit provided 
to a member with (i) shares of liquidity provided in all securities 
through one of its Nasdaq Market Center MPIDs that represent 1.60% or 
more of Consolidated Volume during the month, or (ii) shares of 
liquidity provided in all securities through one or more of its Nasdaq 
Market Center MPIDs that represent 1.60% or more of Consolidated Volume 
during the month, and shares of liquidity provided in all securities 
through one of its Nasdaq Market Center MPIDs that represent 0.75% or 
more of Consolidated Volume during the month.
     Eliminate the $0.0030 per share executed credit provided 
to a member with (i) shares of liquidity provided in all securities 
through one of its Nasdaq Market Center MPIDs that represent 1.20% or 
more of Consolidated Volume during the month, or (ii) shares of 
liquidity provided in all securities through one or more of its Nasdaq 
Market Center MPIDs that represent 1.20% or more of Consolidated Volume 
during the month, and shares of liquidity provided in all securities 
through one of its Nasdaq Market Center MPIDs that represent 0.75% or 
more of Consolidated Volume during the month.
     Eliminate the $0.00295 per share executed credit provided 
to a member with shares of liquidity provided in all securities through 
one of its Nasdaq Market Center MPIDs that represent more than 0.90% of 
Consolidated Volume during the month.
     Eliminate the $0.00295 per share executed credit provided 
to a member (i) that is a registered market maker through one of its 
Nasdaq Market Center MPIDs in at least 7,000 securities, (ii) with 
shares of liquidity provided in all securities through one of its 
Nasdaq Market Center MPIDs that represent more than 0.75% of 
Consolidated Volume during the month, and (iii) with shares of 
liquidity provided in all securities through one or more of its Nasdaq 
Market Center MPIDs that represent more than 0.90% of Consolidated 
Volume during the month.
    Second, Nasdaq is proposing to add two new credits that apply to 
securities of each of the three Tape securities. Specifically, Nasdaq 
is proposing to:
     Add a new credit of $0.00305 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 more than 
1.25% of Consolidated Volume during the month.
     Add a new 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 more than 0.75% of 
Consolidated Volume during the month and member provides a daily 
average of at least 5 Million shares of non-displayed liquidity.
    Lastly, the Exchange is proposing to amend the eligibility criteria 
for a credit applied to securities of each of the three Tape 
securities. Currently, Nasdaq provides a $0.0030 per share executed 
credit to a member (i) with shares of liquidity provided in all 
securities during the month representing at least 0.20% of Consolidated 
Volume during the month, through one or more of its Nasdaq Market 
Center MPIDs, and (ii) Adds Customer, Professional, Firm, Non-NOM 
Market Maker, NOM Market Maker and/or Broker-Dealer liquidity in Penny 
Pilot Options and/or Non- Penny Pilot Options of 0.90% or more of total 
industry ADV in the customer clearing range for Equity and ETF option 
contracts per day in a month on the Nasdaq Options Market. Nasdaq is 
proposing to reduce the level of required Consolidated Volume under 
paragraph (i) of the tier from 0.20% to 0.15%. The Exchange is also 
limiting the type of liquidity allowed to qualify under paragraph (ii) 
of the tier to NOM Market Maker.
2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with 
the provisions of Section 6 of the Act,\9\ in general, and with 
Sections 6(b)(4) and 6(b)(5) of the Act,\10\ 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 or system which Nasdaq operates or controls and is designed to 
prevent fraudulent and manipulative acts and practices, to promote just 
and equitable principles of trade, to foster cooperation and 
coordination with persons engaged in regulating, clearing, settling, 
processing information with respect to, and facilitating transactions 
in securities, to remove impediments to and perfect the mechanism of a 
free and open market and a national market system, and, in general, to 
protect investors and the public interest; and are not designed to 
permit unfair discrimination between customers, issuers, brokers, or 
dealers.
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    \9\ 15 U.S.C. 78f.
    \10\ 15 U.S.C. 78f(b)(4) and (5).
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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, for example, the Commission indicated that market forces should 
generally determine the price of non-core market data because national 
market system regulation ``has been remarkably successful in promoting 
market competition in its broader forms that are most important to 
investors and listed companies.'' \11\ Likewise, in NetCoalition v. 
NYSE Arca, Inc., 615 F.3d 525 (D.C. Cir. 2010), the DC Circuit upheld 
the Commission's use of a market-based approach in evaluating the 
fairness of market data fees against a challenge claiming that Congress

[[Page 73018]]

mandated a cost-based approach.\12\ As the court emphasized, the 
Commission ``intended in Regulation NMS that `market forces, rather 
than regulatory requirements' play a role in determining the market 
data . . . to be made available to investors and at what cost.'' \13\
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    \11\ See Exchange Act Release No. 34-51808 (June 9, 2005) 
(``Regulation NMS Adopting Release'').
    \12\ See NetCoalition, 615 F.3d at 534.
    \13\ Id. at 537.
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    Further, ``[n]o one disputes that competition for order flow is 
`fierce.' . . . As the SEC explained, `[i]n the U.S. national market 
system, buyers and sellers of securities, and the broker-dealers that 
act as their order-routing agents, have a wide range of choices of 
where to route orders for execution'; [and] `no exchange can afford to 
take its market share percentages for granted' because `no exchange 
possesses a monopoly, regulatory or otherwise, in the execution of 
order flow from broker dealers'. . . .'' \14\
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    \14\ NetCoalition I, 615 F.3d at 539 (quoting ArcaBook Order, 73 
FR at 74782-74783).
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Rule 7014
    The Exchange believes that the proposed changes to Rule 7014(f) are 
reasonable because they provide greater incentives to LMMs to improve 
market quality. The proposed changes achieve this by increasing the 
rebate provided under the rule. Currently, a LMM only is provided an 
incentive to be at the NBBO greater than 15% of the time, but is not 
provided any further incentive to exceed the threshold beyond what is 
needed to receive the current credit. To provide an incentive to exceed 
the current 15% threshold, Nasdaq is adding additional higher credit 
tiers based on a greater percentage of time at the NBBO. Nasdaq is also 
providing an Opening and Closing Cross incentive under each new tier, 
which does not exist today. Nasdaq believes increasing the rebates 
available to LMMs and limiting the charge assessed for participation in 
the Opening and Closing Crosses will improve market quality for all 
market participants because it may provide incentive to LMMs to add 
liquidity in the opening and closing processes as well as during 
regular market hours. Nasdaq also believes deletion of the language 
concerning minimum performance standards under Rule 7014(f)(2) is 
reasonable because new Rule 7014(f)(4) now provides the performance 
criteria needed to receive the rebates and fees under the program, 
which is based on the current criteria in place. If Nasdaq determines 
to modify the criteria, it will do so through a rule change in lieu of 
written notice to members. Lastly, The [sic] Exchange believes that 
providing LMMs a reduced charge in the Opening and Closing Crosses is 
equitable and not unfairly discriminatory because, in return for the 
reduced charges, LMMs are providing beneficial displayed liquidity to 
the benefit of all market participants.
    The Exchange believes that the proposed changes to Rule 7014(f) are 
an equitable allocation and is [sic] not unfairly discriminatory 
because the Exchange will apply the same fees and provide the same 
rebates to all similarly situated members. The rebates and fees under 
the amended rule are available to all LMMs that qualify under the new 
tiers of the program. The Exchange does not believe that the proposed 
changes are unfairly discriminatory because all LMMs have the 
opportunity to achieve the level of time at the NBBO if they so choose.
Rule 7018
    The Exchange believes that the proposed changes to Rule 7018(a) are 
reasonable because the Exchange must, from time to time, adjust the 
level of credits provided, and the criteria required to receive them, 
to provide the most efficient allocation of credits in terms of market 
improving behavior. In this regard, Nasdaq is limited in the amount of 
credits that it can provide to market participants. The Exchange 
determined that the eliminated credit tiers no longer provided the most 
efficient and effective use of the credits it is able to provide. With 
regard to the eliminated $0.00295 credit tiers, Nasdaq observed that no 
Participants qualified for the fees recently, rendering them 
ineffective at providing incentive. With regard to the eliminated 
$0.00305 and $0.0030 credit tiers, Nasdaq does not believe that they 
are achieving an adequate level of qualifying beneficial market 
activity and is consequently replacing them with two new credit tiers 
of the same amount. The Exchange is now requiring a reduced level of 
Consolidated Volume to qualify for the new $0.00305 per share executed 
credit tier and is not applying the additional criteria of the deleted 
$0.00305 credit tier. Consequently, the Exchange believes that the 
change may provide a more attainable level of incentive thereby 
promoting Participants to provide the liquidity needed to qualify for 
the tier. To receive a $0.0030 per share executed credit under the 
proposed new tier, a Participant must provide a significantly reduced 
level of Consolidated Volume, but must also provide a daily average of 
at least 5 million shares of non-displayed liquidity. The Exchange 
believes that the criteria of the new tier may make it more attainable 
for Participants than the deleted $0.0030 tier. The Exchange believes 
that elimination of the $0.00295 credit tiers reasonable [sic] because 
no Participants have recently qualified under the tiers, and the 
Exchange may accordingly allocate its resources in more effective ways 
to encourage market improving activity. Lastly, the changes to 
eligibility criteria to receive a $0.0030 per share executed credit is 
[sic] reasonable because by reducing the amount of Consolidated Volume 
required to receive the credit but limiting the Nasdaq Options Market 
based criteria to market making activity, the Exchange believes that it 
may provide greater incentive for market makers to improve liquidity on 
the Nasdaq Options Market. In addition, because of a limited amount of 
credits it can provide, the Exchange chose to continue to provide this 
tier to NOM market makers because they actively provide liquidity to 
the benefit of all NOM participants. In sum, the Exchange believes that 
the changes to Rule 7018(a) are reasonable because the Exchange has 
determined that the new tiers may better promote provision of liquidity 
and use of non-displayed orders on the Exchange, which improves market 
quality for all market participants.
    The Exchange believes that the proposed changes to Rule 7018(a) are 
an equitable allocation and are not unfairly discriminatory because the 
Exchange will provide the same credits to all similarly situated 
members. The credits Nasdaq provides are designed to improve market 
quality for all market participants, and Nasdaq allocates its credits 
in a manner that it believes are the most likely to achieve that 
result. Elimination of the existing credits under the rule is an 
equitable allocation and is not unfairly discriminatory because the 
credits were ineffective at providing adequate incentive to 
Participants to provide market improving order activity. Consequently, 
the Exchange is proposing to change the criteria needed to receive 
$0.00305 and $0.0030 credits by adopting new tiers it believes will be 
more effective. The Exchange believes that elimination of the $0.00295 
credit tiers is an equitable allocation and is not unfairly 
discriminatory because no participants qualified under the tiers, 
therefore their removal will not impact any Participants. With regard 
to the changes to eligibility criteria to receive a $0.0030 per share 
executed credit, the Exchange believes that they are an equitable 
allocation and are not unfairly discriminatory because Nasdaq must be 
selective in providing credits to

[[Page 73019]]

Participants, and allocates credits to where it believes it will 
receive the best result in terms of improvement to market quality. In 
this case, Nasdaq is limiting the credit to NOM market makers because 
it believes that market quality will be improved the most by market 
makers actively providing liquidity and this benefits both Nasdaq and 
NOM participants.

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

    Nasdaq does not believe that the proposed rule changes will result 
in any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act, as amended.\15\ Nasdaq 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, 
Nasdaq must continually adjust its 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 fees in 
response, and because market participants may readily adjust their 
order routing practices. [sic]
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    \15\ 15 U.S.C. 78f(b)(8).
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    In this instance, the proposed changes to the LMM Program and the 
charges assessed and credits available to Participants for execution of 
securities in securities of all three Tapes do not impose a burden on 
competition because the Exchange's execution services are completely 
voluntary and subject to extensive competition both from other 
exchanges and from off-exchange venues. The Exchange is modifying a 
market improving incentive program and is also adjusting credit tiers 
provided Participants in return for market improving activity, in an 
effort to make them more effective. Such changes may foster competition 
among exchanges and other market venues to provide similar incentives, 
which would benefit all market participants. The Exchange must weigh 
the costs of offering incentives to market participants against the 
desired benefit the Exchange seeks to achieve. To the extent these 
incentives are inefficient or at [sic] fail to achieve these goals, the 
Exchange may from time to time adjust the level of incentive and/or the 
market improving activity required to qualify for the incentive credits 
and fees, or adopt an alternative incentive in lieu thereof. Such 
changes are reflective of robust competition among exchanges and other 
market venues. In sum, if the changes proposed herein are unattractive 
to market participants it is likely that Nasdaq will lose market share 
as a result. As such, the Exchange does not believe the proposed 
changes will place a burden on competition.

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

    Written comments were neither solicited nor received.

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

    The foregoing change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act \16\ and Rule 19b-4(f)(2) thereunder.\17\ At 
any time within 60 days of the filing of such proposed rule change, the 
Commission summarily may temporarily suspend such rule change if it 
appears to the Commission that such action is necessary or appropriate 
in the public interest, for the protection of investors, or otherwise 
in furtherance of the purposes of the Act. If the Commission takes such 
action, the Commission shall institute proceedings under Section 
19(b)(2)(B) of the Act \18\ to determine whether the proposed rule 
change should be approved or disapproved.
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    \16\ 15 U.S.C. 78fs(b)(3)(A)(ii).
    \17\ 17 CFR 240.19b-4(f)(2).
    \18\ 15 U.S.C. 78fs(b)(2)(B).
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IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File No. SR-NASDAQ-2015-137 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 No. SR-NASDAQ-2015-137. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549 on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available 
for inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File No. SR-NASDAQ-2015-137, and should be 
submitted on or before December 14, 2015.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\19\
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    \19\ 17 CFR 200.30-3(a)(31).
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Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015-29705 Filed 11-20-15; 8:45 am]
 BILLING CODE 8011-01-P