81_FR_59189 81 FR 59023 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Exchange's Options Pricing

81 FR 59023 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Exchange's Options Pricing

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 81, Issue 166 (August 26, 2016)

Page Range59023-59025
FR Document2016-20451

Federal Register, Volume 81 Issue 166 (Friday, August 26, 2016)
[Federal Register Volume 81, Number 166 (Friday, August 26, 2016)]
[Notices]
[Pages 59023-59025]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-20451]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-78634; File No. SR-NASDAQ-2016-113]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Amend the Exchange's Options Pricing

August 22, 2016.
    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 9, 2016, 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 chapter XV, entitled ``Options 
Pricing,'' at section 2, which governs pricing for Exchange members 
using the NASDAQ Options Market LLC (``NOM''), the Exchange's facility 
for executing and routing standardized equity and index options. The 
Exchange proposes to amend certain Penny Pilot Options \3\ pricing.
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    \3\ The Penny Pilot was established in March 2008 and was last 
extended in 2016. See Securities Exchange Act Release Nos. 57579 
(March 28, 2008), 73 FR 18587 (April 4, 2008) (SR-NASDAQ-2008-026) 
(notice of filing and immediate effectiveness establishing Penny 
Pilot); and 78037 (June 10, 2016), 81 FR 39299 (June 16, 2016) (SR-
NASDAQ-2016-052) (notice of filing and immediate effectiveness 
extending the Penny Pilot through December 31, 2016). All Penny 
Pilot Options listed on the Exchange can be found at http://www.nasdaqtrader.com/MicroNews.aspx?id=OTA2016-15.
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    The text of the proposed rule change is available on the Exchange's 
Web site at http://nasdaq.cchwallstreet.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 Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The Exchange has prepared summaries, set forth in 
sections A, B, and C below, of the most significant aspects of such 
statements.

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

1. Purpose
    The Exchange proposes to amend NOM pricing at chapter XV, section 
2(1) to increase the Customer \4\ or Professional \5\ Penny Pilot 
Options Fee for Removing Liquidity in SPY Options.\6\ The proposed 
change is discussed below.
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    \4\ The term ``Customer'' or (``C'') applies to any transaction 
that is identified by a Participant for clearing in the Customer 
range at The Options Clearing Corporation which is not for the 
account of broker or dealer or for the account of a ``Professional'' 
(as that term is defined in Chapter I, Section 1(a)(48)).
    \5\ The term ``Professional'' or (``P'') means any person or 
entity that (i) is not a broker or dealer in securities, and (ii) 
places more than 390 orders in listed options per day on average 
during a calendar month for its own beneficial account(s) pursuant 
to Chapter I, Section 1(a)(48). All Professional orders shall be 
appropriately marked by Participants.
    \6\ Options overlying Standard and Poor's Depositary Receipts/
SPDRs (``SPY'') are based on the SPDR exchange-traded fund 
(``ETF''), which is designed to track the performance of the S&P 500 
Index.
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Change 1--Penny Pilot Options: Change Fee for Removing Customer and 
Professional Liquidity in SPY Options

    The Exchange currently assesses Customers, Professionals, Firms,\7\ 
Non-NOM Market Makers,\8\ NOM Market Makers,\9\ and Broker-Dealers \10\ 
a $0.50 per contract Penny Pilot Options Fee for Removing Liquidity in 
all NOM Penny Pilot Options, except SPY options. Today, the Exchange 
assesses a Customer or Professional that removes liquidity in SPY 
options a Penny Pilot Options Fee for Removing Liquidity of $0.47 per 
contract.\11\ The Exchange proposes to amend note ``3'' of chapter XV, 
section 2(1) to increase the Customer or Professional Penny Pilot 
Options Fee for Removing Liquidity in SPY options from $0.47 to $0.48 
per contract. While the Exchange is proposing to increase this fee, the 
Exchange believes that the lower fee, as compared to $0.50 per contract 
in other Penny Pilot Options, will continue to incentivize Participants 
to send Customer and Professional order flow in SPY.\12\
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    \7\ The term ``Firm'' or (``F'') applies to any transaction that 
is identified by a Participant for clearing in the Firm range at The 
Options Clearing Corporation.
    \8\ The term ``Non-NOM Market Maker'' or (``O'') is a registered 
market maker on another options exchange that is not a NOM Market 
Maker. A Non-NOM Market Maker must append the proper Non-NOM Market 
Maker designation to orders routed to NOM.
    \9\ The term ``NOM Market Maker'' or (``M'') is a Participant 
that has registered as a Market Maker on NOM pursuant to Chapter 
VII, Section 2, and must also remain in good standing pursuant to 
Chapter VII, Section 4. In order to receive NOM Market Maker pricing 
in all securities, the Participant must be registered as a NOM 
Market Maker in at least one security.
    \10\ The term ``Broker-Dealer'' or (``B'') applies to any 
transaction which is not subject to any of the other transaction 
fees applicable within a particular category.
    \11\ Firms, Non-NOM Market Makers, NOM Market Makers and Broker-
Dealers are assessed a $0.50 per contract Penny Pilot Options Fee 
for Removing Liquidity in SPY options, similar to other Penny Pilot 
Options.
    \12\ SPY options are the largest volume Penny Pilot Options 
traded on the Exchange.
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with section 
6(b) of the Act,\13\ in general, and furthers the objectives of 
sections 6(b)(4) and 6(b)(5) of the Act,\14\ in particular, in that it 
provides for the equitable allocation of reasonable dues, fees and 
other charges among its members and issuers and other persons using its 
facilities, and is not designed to permit unfair

[[Page 59024]]

discrimination between customers, issuers, brokers, or dealers.
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    \13\ 15 U.S.C. 78f(b).
    \14\ 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, 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.'' \15\
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    \15\ Securities Exchange Act Release No. 51808 (June 9, 2005), 
70 FR 37496, 37499 (June 29, 2005) (``Regulation NMS Adopting 
Release'').
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    Likewise, in NetCoalition v. Securities and Exchange Commission 
\16\ (``NetCoalition'') the D.C. 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 mandated a cost-based 
approach.\17\ 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.'' \18\
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    \16\ NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010).
    \17\ See NetCoalition, at 534-535.
    \18\ 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' . . .'' \19\ Although the court and the 
SEC were discussing the cash equities markets, the Exchange believes 
that these views apply with equal force to the options markets.
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    \19\ Id. at 539 (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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Change 1--Penny Pilot Options: Change Fee for Removing Customer and 
Professional Liquidity in SPY Options

    The Exchange's proposal to amend note ``3'' of chapter XV, section 
2(1) to increase the Customer or Professional Penny Pilot Options Fee 
for Removing Liquidity in SPY from $0.47 to $0.48 per contract is 
reasonable because the Customer and Professional Penny Pilot Options 
Fee for Removing Liquidity continues to be lower for SPY as compared to 
other Penny Pilot Options. The lower fee of $0.48 in SPY, as compared 
to $0.50 per contract in other Penny Pilot Options, will continue to 
incentivize Participants to send Customer and Professional order flow 
in SPY.
    The Exchange's proposal to amend note ``3'' of chapter XV, section 
2(1) to increase the Customer or Professional Penny Pilot Options Fee 
for Removing Liquidity in SPY options from $0.47 to $0.48 per contract 
is equitable and not unfairly discriminatory because the Customer and 
Professional Penny Pilot Options Fee for Removing Liquidity continues 
to be lower for SPY as compared to other Penny Pilot Options. This 
lower fee for these market participants is equitable and not unfairly 
discriminatory because Customer liquidity benefits all market 
participants by providing more trading opportunities, which attracts 
market makers. An increase in the activity of these market participants 
in turn facilitates tighter spreads, which may cause an additional 
corresponding increase in order flow from other market participants. 
The Exchange believes that offering a lower fee to Professionals is 
equitable and not unfairly discriminatory because it serves to attract 
more liquidity to NOM to the benefit of other market participants. By 
offering Professionals, as well as Customers, lower fees, the Exchange 
hopes to simply remain competitive with other venues so that it remains 
a choice for market participants when posting orders and the result may 
be additional Professional order flow for the Exchange, in addition to 
increased Customer order flow. Further, the Exchange initially 
established Professional pricing in order to ``. . . bring additional 
revenue to the Exchange.'' \20\ The Exchange noted in the Professional 
Filing that it believes ``. . . that the increased revenue from the 
proposal would assist the Exchange to recoup fixed costs.'' \21\ The 
Exchange does not believe that providing Professionals with the 
opportunity to obtain lower remove fee in SPY, equivalent to that of a 
Customer, creates a competitive environment where Professionals would 
be necessarily advantaged on NOM as compared to NOM Market Makers, 
Firms, Broker-Dealers or Non-NOM Market Makers.
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    \20\ See Securities Exchange Act Release No. 64494 (May 13, 
2011), 76 FR 29014 (May 19, 2011) (SR-NASDAQ-2011-066) 
(``Professional Filing''). In this filing, the Exchange addressed 
the perceived favorable pricing of Professionals who were assessed 
fees and paid rebates like a Customer prior to the filing. The 
Exchange noted in that filing that a Professional, unlike a retail 
Customer, has access to sophisticated trading systems that contain 
functionality not available to retail Customers.
    \21\ See Securities Exchange Act Release No. 64494 (May 13, 
2011), 76 FR 29014 (May 19, 2011) (SR-NASDAQ-2011-066).
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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. 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 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, 
the Exchange believes that the degree to which fee changes in this 
market may impose any burden on competition is extremely limited.
    The proposed fee changes are competitive and do not impose a burden 
on inter-market competition. 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.

Change 1--Penny Pilot Options: Change Fee for Removing Customer and 
Professional Liquidity in SPY Options

    The Exchange's proposal to amend note ``3'' of chapter XV, section 
2(1) to increase the Customer or Professional Penny Pilot Options Fee 
for Removing Liquidity in SPY options from $0.47 to $0.48 per contract 
does not create an undue burden on intra-market competition, rather the 
proposal will incentivize market participants to send additional SPY 
order flow to NOM, because Participants sending Customer and 
Professional order flow will

[[Page 59025]]

continued to be charged a lower rate of $0.48 in SPY as compared to 
$0.50 per contract in other Penny Pilot Options. Customer liquidity 
benefits all market participants by providing more trading 
opportunities, which attracts market makers. An increase in the 
activity of these market participants in turn facilitates tighter 
spreads, which may cause an additional corresponding increase in order 
flow from other market participants. The Exchange believes that 
offering a lower fee to Professionals does not create an undue burden 
on intra-market competition because it serves to attract more liquidity 
to NOM to the benefit of other market participants. By offering 
Professionals, as well as Customers, lower fees, the Exchange hopes to 
simply remain competitive with other venues so that it remains a choice 
for market participants when posting orders and the result may be 
additional Professional order flow for the Exchange, in addition to 
increased Customer order flow. Further, the Exchange initially 
established Professional pricing in order to ``. . . bring additional 
revenue to the Exchange.'' \22\ The Exchange noted in the Professional 
Filing that it believes ``. . . that the increased revenue from the 
proposal would assist the Exchange to recoup fixed costs.'' \23\ The 
Exchange does not believe that providing Professionals with the 
opportunity to obtain lower remove fee in SPY, equivalent to that of a 
Customer, creates a competitive environment where Professionals would 
be necessarily advantaged on NOM as compared to NOM Market Makers, 
Firms, Broker-Dealers or Non-NOM Market Makers.
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    \22\ See Securities Exchange Act Release No. 64494 (May 13, 
2011), 76 FR 29014 (May 19, 2011) (SR-NASDAQ-2011-066) 
(``Professional Filing''). In this filing, the Exchange addressed 
the perceived favorable pricing of Professionals who were assessed 
fees and paid rebates like a Customer prior to the filing. The 
Exchange noted in that filing that a Professional, unlike a retail 
Customer, has access to sophisticated trading systems that contain 
functionality not available to retail Customers.
    \23\ See Securities Exchange Act Release No. 64494 (May 13, 
2011), 76 FR 29014 (May 19, 2011) (SR-NASDAQ-2011-066).
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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.\24\
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    \24\ 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 (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NASDAQ-2016-113 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NASDAQ-2016-113. 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 the filing also will be available 
for inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-NASDAQ-2016-113 and should 
be submitted on or before September 16, 2016.
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    \25\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\25\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-20451 Filed 8-25-16; 8:45 am]
 BILLING CODE 8011-01-P



                                                                                 Federal Register / Vol. 81, No. 166 / Friday, August 26, 2016 / Notices                                                       59023

                                                  available for Web site viewing and                      amend certain Penny Pilot Options 3                      Change 1—Penny Pilot Options: Change
                                                  printing in the Commission’s Public                     pricing.                                                 Fee for Removing Customer and
                                                  Reference Room, 100 F Street NE.,                          The text of the proposed rule change                  Professional Liquidity in SPY Options
                                                  Washington, DC 20549, on official                       is available on the Exchange’s Web site
                                                  business days between the hours of                                                                                  The Exchange currently assesses
                                                                                                          at http://nasdaq.cchwallstreet.com, at                   Customers, Professionals, Firms,7 Non-
                                                  10:00 a.m. and 3:00 p.m. Copies of the
                                                                                                          the principal office of the Exchange, and                NOM Market Makers,8 NOM Market
                                                  filing also will be available for
                                                  inspection and copying at the principal                 at the Commission’s Public Reference                     Makers,9 and Broker-Dealers 10 a $0.50
                                                  office of the Exchange. All comments                    Room.                                                    per contract Penny Pilot Options Fee for
                                                  received will be posted without change;                 II. Self-Regulatory Organization’s                       Removing Liquidity in all NOM Penny
                                                  the Commission does not edit personal                   Statement of the Purpose of, and                         Pilot Options, except SPY options.
                                                  identifying information from                            Statutory Basis for, the Proposed Rule                   Today, the Exchange assesses a
                                                  submissions. You should submit only                     Change                                                   Customer or Professional that removes
                                                  information that you wish to make                                                                                liquidity in SPY options a Penny Pilot
                                                  available publicly. All submissions                       In its filing with the Commission, the                 Options Fee for Removing Liquidity of
                                                  should refer to File No. SR–BatsEDGA–                   Exchange included statements                             $0.47 per contract.11 The Exchange
                                                  2016–19, and should be submitted on or                  concerning the purpose of and basis for                  proposes to amend note ‘‘3’’ of chapter
                                                  before September 16, 2016.                              the proposed rule change and discussed                   XV, section 2(1) to increase the
                                                    For the Commission, by the Division of                any comments it received on the                          Customer or Professional Penny Pilot
                                                  Trading and Markets, pursuant to delegated              proposed rule change. The text of these                  Options Fee for Removing Liquidity in
                                                  authority.20                                            statements may be examined at the                        SPY options from $0.47 to $0.48 per
                                                  Robert W. Errett,                                       places specified in Item IV below. The                   contract. While the Exchange is
                                                  Deputy Secretary.                                       Exchange has prepared summaries, set                     proposing to increase this fee, the
                                                  [FR Doc. 2016–20462 Filed 8–25–16; 8:45 am]             forth in sections A, B, and C below, of                  Exchange believes that the lower fee, as
                                                  BILLING CODE 8011–01–P                                  the most significant aspects of such                     compared to $0.50 per contract in other
                                                                                                          statements.                                              Penny Pilot Options, will continue to
                                                                                                                                                                   incentivize Participants to send
                                                  SECURITIES AND EXCHANGE                                 A. Self-Regulatory Organization’s                        Customer and Professional order flow in
                                                  COMMISSION                                              Statement of the Purpose of, and                         SPY.12
                                                  [Release No. 34–78634; File No. SR–                     Statutory Basis for, the Proposed Rule
                                                                                                                                                                   2. Statutory Basis
                                                  NASDAQ–2016–113]                                        Change
                                                                                                          1. Purpose                                                 The Exchange believes that its
                                                  Self-Regulatory Organizations; The                                                                               proposal is consistent with section 6(b)
                                                  NASDAQ Stock Market LLC; Notice of                        The Exchange proposes to amend                         of the Act,13 in general, and furthers the
                                                  Filing and Immediate Effectiveness of                   NOM pricing at chapter XV, section 2(1)                  objectives of sections 6(b)(4) and 6(b)(5)
                                                  Proposed Rule Change To Amend the                       to increase the Customer 4 or                            of the Act,14 in particular, in that it
                                                  Exchange’s Options Pricing                                                                                       provides for the equitable allocation of
                                                                                                          Professional 5 Penny Pilot Options Fee
                                                  August 22, 2016.                                        for Removing Liquidity in SPY                            reasonable dues, fees and other charges
                                                     Pursuant to section 19(b)(1) of the                  Options.6 The proposed change is                         among its members and issuers and
                                                  Securities Exchange Act of 1934                         discussed below.                                         other persons using its facilities, and is
                                                  (‘‘Act’’),1 and Rule 19b–4 thereunder,2                                                                          not designed to permit unfair
                                                  notice is hereby given that on August 9,                   3 The Penny Pilot was established in March 2008
                                                                                                                                                                      7 The term ‘‘Firm’’ or (‘‘F’’) applies to any
                                                  2016, The NASDAQ Stock Market LLC                       and was last extended in 2016. See Securities
                                                                                                          Exchange Act Release Nos. 57579 (March 28, 2008),        transaction that is identified by a Participant for
                                                  (‘‘Nasdaq’’ or ‘‘Exchange’’) filed with the                                                                      clearing in the Firm range at The Options Clearing
                                                                                                          73 FR 18587 (April 4, 2008) (SR–NASDAQ–2008–
                                                  Securities and Exchange Commission                      026) (notice of filing and immediate effectiveness       Corporation.
                                                  (‘‘SEC’’ or ‘‘Commission’’) the proposed                establishing Penny Pilot); and 78037 (June 10,              8 The term ‘‘Non-NOM Market Maker’’ or (‘‘O’’) is

                                                  rule change as described in Items I, II,                2016), 81 FR 39299 (June 16, 2016) (SR–NASDAQ–           a registered market maker on another options
                                                  and III, below, which Items have been                   2016–052) (notice of filing and immediate                exchange that is not a NOM Market Maker. A Non-
                                                                                                          effectiveness extending the Penny Pilot through          NOM Market Maker must append the proper Non-
                                                  prepared by the Exchange. The                           December 31, 2016). All Penny Pilot Options listed       NOM Market Maker designation to orders routed to
                                                  Commission is publishing this notice to                 on the Exchange can be found at http://                  NOM.
                                                  solicit comments on the proposed rule                   www.nasdaqtrader.com/                                       9 The term ‘‘NOM Market Maker’’ or (‘‘M’’) is a

                                                  change from interested persons.                         MicroNews.aspx?id=OTA2016-15.                            Participant that has registered as a Market Maker on
                                                                                                             4 The term ‘‘Customer’’ or (‘‘C’’) applies to any     NOM pursuant to Chapter VII, Section 2, and must
                                                  I. Self-Regulatory Organization’s                       transaction that is identified by a Participant for      also remain in good standing pursuant to Chapter
                                                  Statement of the Terms of Substance of                  clearing in the Customer range at The Options            VII, Section 4. In order to receive NOM Market
                                                                                                          Clearing Corporation which is not for the account        Maker pricing in all securities, the Participant must
                                                  the Proposed Rule Change                                                                                         be registered as a NOM Market Maker in at least one
                                                                                                          of broker or dealer or for the account of a
                                                     The Exchange proposes to amend                       ‘‘Professional’’ (as that term is defined in Chapter     security.
                                                                                                                                                                      10 The term ‘‘Broker-Dealer’’ or (‘‘B’’) applies to
                                                  chapter XV, entitled ‘‘Options Pricing,’’               I, Section 1(a)(48)).
                                                                                                             5 The term ‘‘Professional’’ or (‘‘P’’) means any      any transaction which is not subject to any of the
                                                  at section 2, which governs pricing for                                                                          other transaction fees applicable within a particular
                                                                                                          person or entity that (i) is not a broker or dealer in
                                                  Exchange members using the NASDAQ                       securities, and (ii) places more than 390 orders in      category.
mstockstill on DSK3G9T082PROD with NOTICES




                                                  Options Market LLC (‘‘NOM’’), the                       listed options per day on average during a calendar         11 Firms, Non-NOM Market Makers, NOM Market

                                                  Exchange’s facility for executing and                   month for its own beneficial account(s) pursuant to      Makers and Broker-Dealers are assessed a $0.50 per
                                                                                                          Chapter I, Section 1(a)(48). All Professional orders     contract Penny Pilot Options Fee for Removing
                                                  routing standardized equity and index                                                                            Liquidity in SPY options, similar to other Penny
                                                                                                          shall be appropriately marked by Participants.
                                                  options. The Exchange proposes to                          6 Options overlying Standard and Poor’s               Pilot Options.
                                                                                                                                                                      12 SPY options are the largest volume Penny Pilot
                                                                                                          Depositary Receipts/SPDRs (‘‘SPY’’) are based on
                                                    20 17 CFR 200.30–3(a)(12).                                                                                     Options traded on the Exchange.
                                                                                                          the SPDR exchange-traded fund (‘‘ETF’’), which is
                                                    1 15 U.S.C. 78s(b)(1).                                                                                            13 15 U.S.C. 78f(b).
                                                                                                          designed to track the performance of the S&P 500
                                                    2 17 CFR 240.19b–4.                                   Index.                                                      14 15 U.S.C. 78f(b)(4) and (5).




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                                                  59024                          Federal Register / Vol. 81, No. 166 / Friday, August 26, 2016 / Notices

                                                  discrimination between customers,                        Liquidity in SPY from $0.47 to $0.48 per                does not believe that providing
                                                  issuers, brokers, or dealers.                            contract is reasonable because the                      Professionals with the opportunity to
                                                     The Commission and the courts have                    Customer and Professional Penny Pilot                   obtain lower remove fee in SPY,
                                                  repeatedly expressed their preference                    Options Fee for Removing Liquidity                      equivalent to that of a Customer, creates
                                                  for competition over regulatory                          continues to be lower for SPY as                        a competitive environment where
                                                  intervention in determining prices,                      compared to other Penny Pilot Options.                  Professionals would be necessarily
                                                  products, and services in the securities                 The lower fee of $0.48 in SPY, as                       advantaged on NOM as compared to
                                                  markets. In Regulation NMS, while                        compared to $0.50 per contract in other                 NOM Market Makers, Firms, Broker-
                                                  adopting a series of steps to improve the                Penny Pilot Options, will continue to                   Dealers or Non-NOM Market Makers.
                                                  current market model, the Commission                     incentivize Participants to send
                                                                                                                                                                   B. Self-Regulatory Organization’s
                                                  highlighted the importance of market                     Customer and Professional order flow in
                                                                                                                                                                   Statement on Burden on Competition
                                                  forces in determining prices and SRO                     SPY.
                                                  revenues and, also, recognized that                         The Exchange’s proposal to amend                        The Exchange does not believe that
                                                  current regulation of the market system                  note ‘‘3’’ of chapter XV, section 2(1) to               the proposed rule change will impose
                                                  ‘‘has been remarkably successful in                      increase the Customer or Professional                   any burden on competition not
                                                  promoting market competition in its                      Penny Pilot Options Fee for Removing                    necessary or appropriate in furtherance
                                                  broader forms that are most important to                 Liquidity in SPY options from $0.47 to                  of the purposes of the Act. In terms of
                                                  investors and listed companies.’’ 15                     $0.48 per contract is equitable and not                 inter-market competition, the Exchange
                                                     Likewise, in NetCoalition v. Securities               unfairly discriminatory because the                     notes that it operates in a highly
                                                  and Exchange Commission 16                               Customer and Professional Penny Pilot                   competitive market in which market
                                                  (‘‘NetCoalition’’) the D.C. Circuit upheld               Options Fee for Removing Liquidity                      participants can readily favor competing
                                                  the Commission’s use of a market-based                   continues to be lower for SPY as                        venues if they deem fee levels at a
                                                  approach in evaluating the fairness of                   compared to other Penny Pilot Options.                  particular venue to be excessive, or
                                                  market data fees against a challenge                     This lower fee for these market                         rebate opportunities available at other
                                                  claiming that Congress mandated a cost-                  participants is equitable and not                       venues to be more favorable. In such an
                                                  based approach.17 As the court                           unfairly discriminatory because                         environment, the Exchange must
                                                  emphasized, the Commission ‘‘intended                    Customer liquidity benefits all market                  continually adjust its fees to remain
                                                  in Regulation NMS that ‘market forces,                   participants by providing more trading                  competitive with other exchanges and
                                                  rather than regulatory requirements’                     opportunities, which attracts market                    with alternative trading systems that
                                                                                                           makers. An increase in the activity of                  have been exempted from compliance
                                                  play a role in determining the market
                                                                                                           these market participants in turn                       with the statutory standards applicable
                                                  data . . . to be made available to
                                                                                                           facilitates tighter spreads, which may                  to exchanges. Because competitors are
                                                  investors and at what cost.’’ 18
                                                                                                           cause an additional corresponding                       free to modify their own fees in
                                                     Further, ‘‘[n]o one disputes that
                                                                                                           increase in order flow from other market                response, and because market
                                                  competition for order flow is ‘fierce.’
                                                                                                           participants. The Exchange believes that                participants may readily adjust their
                                                  . . . As the SEC explained, ‘[i]n the U.S.
                                                                                                           offering a lower fee to Professionals is                order routing practices, the Exchange
                                                  national market system, buyers and
                                                                                                           equitable and not unfairly                              believes that the degree to which fee
                                                  sellers of securities, and the broker-
                                                                                                           discriminatory because it serves to                     changes in this market may impose any
                                                  dealers that act as their order-routing
                                                                                                           attract more liquidity to NOM to the                    burden on competition is extremely
                                                  agents, have a wide range of choices of
                                                                                                           benefit of other market participants. By                limited.
                                                  where to route orders for execution’;                                                                               The proposed fee changes are
                                                  [and] ‘no exchange can afford to take its                offering Professionals, as well as
                                                                                                           Customers, lower fees, the Exchange                     competitive and do not impose a burden
                                                  market share percentages for granted’                                                                            on inter-market competition. In sum, if
                                                  because ‘no exchange possesses a                         hopes to simply remain competitive
                                                                                                           with other venues so that it remains a                  the changes proposed herein are
                                                  monopoly, regulatory or otherwise, in                                                                            unattractive to market participants, it is
                                                  the execution of order flow from broker                  choice for market participants when
                                                                                                           posting orders and the result may be                    likely that the Exchange will lose
                                                  dealers’ . . .’’ 19 Although the court and                                                                       market share as a result. Accordingly,
                                                                                                           additional Professional order flow for
                                                  the SEC were discussing the cash                                                                                 the Exchange does not believe that the
                                                                                                           the Exchange, in addition to increased
                                                  equities markets, the Exchange believes                                                                          proposed changes will impair the ability
                                                                                                           Customer order flow. Further, the
                                                  that these views apply with equal force                                                                          of members or competing order
                                                                                                           Exchange initially established
                                                  to the options markets.                                                                                          execution venues to maintain their
                                                                                                           Professional pricing in order to ‘‘. . .
                                                  Change 1—Penny Pilot Options: Change                     bring additional revenue to the                         competitive standing in the financial
                                                  Fee for Removing Customer and                            Exchange.’’ 20 The Exchange noted in                    markets.
                                                  Professional Liquidity in SPY Options                    the Professional Filing that it believes                Change 1—Penny Pilot Options: Change
                                                    The Exchange’s proposal to amend                       ‘‘. . . that the increased revenue from                 Fee for Removing Customer and
                                                  note ‘‘3’’ of chapter XV, section 2(1) to                the proposal would assist the Exchange                  Professional Liquidity in SPY Options
                                                  increase the Customer or Professional                    to recoup fixed costs.’’ 21 The Exchange
                                                                                                                                                                     The Exchange’s proposal to amend
                                                  Penny Pilot Options Fee for Removing                        20 See Securities Exchange Act Release No. 64494     note ‘‘3’’ of chapter XV, section 2(1) to
                                                    15 Securities
                                                                                                           (May 13, 2011), 76 FR 29014 (May 19, 2011) (SR–         increase the Customer or Professional
                                                                    Exchange Act Release No. 51808
                                                  (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005)
                                                                                                           NASDAQ–2011–066) (‘‘Professional Filing’’). In this     Penny Pilot Options Fee for Removing
                                                                                                           filing, the Exchange addressed the perceived            Liquidity in SPY options from $0.47 to
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                                                  (‘‘Regulation NMS Adopting Release’’).                   favorable pricing of Professionals who were
                                                     16 NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir.
                                                                                                           assessed fees and paid rebates like a Customer prior    $0.48 per contract does not create an
                                                  2010).                                                   to the filing. The Exchange noted in that filing that   undue burden on intra-market
                                                     17 See NetCoalition, at 534–535.
                                                                                                           a Professional, unlike a retail Customer, has access    competition, rather the proposal will
                                                     18 Id. at 537.                                        to sophisticated trading systems that contain           incentivize market participants to send
                                                     19 Id. at 539 (quoting Securities Exchange Act        functionality not available to retail Customers.
                                                  Release No. 59039 (December 2, 2008), 73 FR                 21 See Securities Exchange Act Release No. 64494     additional SPY order flow to NOM,
                                                  74770, 74782–83 (December 9, 2008) (SR–                  (May 13, 2011), 76 FR 29014 (May 19, 2011) (SR–         because Participants sending Customer
                                                  NYSEArca–2006–21)).                                      NASDAQ–2011–066).                                       and Professional order flow will


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                                                                                 Federal Register / Vol. 81, No. 166 / Friday, August 26, 2016 / Notices                                                   59025

                                                  continued to be charged a lower rate of                 III. Date of Effectiveness of the                        business days between the hours of
                                                  $0.48 in SPY as compared to $0.50 per                   Proposed Rule Change and Timing for                      10:00 a.m. and 3:00 p.m. Copies of the
                                                  contract in other Penny Pilot Options.                  Commission Action                                        filing also will be available for
                                                  Customer liquidity benefits all market                     The foregoing rule change has become                  inspection and copying at the principal
                                                  participants by providing more trading                  effective pursuant to section                            office of the Exchange. All comments
                                                  opportunities, which attracts market                    19(b)(3)(A)(ii) of the Act.24                            received will be posted without change;
                                                  makers. An increase in the activity of                     At any time within 60 days of the                     the Commission does not edit personal
                                                  these market participants in turn                       filing of the proposed rule change, the                  identifying information from
                                                  facilitates tighter spreads, which may                  Commission summarily may                                 submissions. You should submit only
                                                                                                          temporarily suspend such rule change if                  information that you wish to make
                                                  cause an additional corresponding
                                                                                                          it appears to the Commission that such                   available publicly. All submissions
                                                  increase in order flow from other market
                                                                                                          action is: (i) Necessary or appropriate in               should refer to File Number SR–
                                                  participants. The Exchange believes that                                                                         NASDAQ–2016–113 and should be
                                                  offering a lower fee to Professionals                   the public interest; (ii) for the protection
                                                                                                          of investors; or (iii) otherwise in                      submitted on or before September 16,
                                                  does not create an undue burden on                                                                               2016.
                                                  intra-market competition because it                     furtherance of the purposes of the Act.
                                                                                                          If the Commission takes such action, the                   For the Commission, by the Division of
                                                  serves to attract more liquidity to NOM                                                                          Trading and Markets, pursuant to delegated
                                                                                                          Commission shall institute proceedings
                                                  to the benefit of other market                          to determine whether the proposed rule                   authority.25
                                                  participants. By offering Professionals,                should be approved or disapproved.                       Robert W. Errett,
                                                  as well as Customers, lower fees, the                                                                            Deputy Secretary.
                                                  Exchange hopes to simply remain                         IV. Solicitation of Comments
                                                                                                                                                                   [FR Doc. 2016–20451 Filed 8–25–16; 8:45 am]
                                                  competitive with other venues so that it                  Interested persons are invited to                      BILLING CODE 8011–01–P
                                                  remains a choice for market participants                submit written data, views and
                                                  when posting orders and the result may                  arguments concerning the foregoing,
                                                  be additional Professional order flow for               including whether the proposed rule                      SECURITIES AND EXCHANGE
                                                  the Exchange, in addition to increased                  change is consistent with the Act.                       COMMISSION
                                                  Customer order flow. Further, the                       Comments may be submitted by any of
                                                                                                          the following methods:                                   [Release No. 34–78633; File No. SR–
                                                  Exchange initially established                                                                                   NYSEArca–2016–114]
                                                  Professional pricing in order to ‘‘. . .                Electronic Comments
                                                  bring additional revenue to the                                                                                  Self-Regulatory Organizations; NYSE
                                                                                                            • Use the Commission’s Internet
                                                  Exchange.’’ 22 The Exchange noted in                    comment form (http://www.sec.gov/
                                                                                                                                                                   Arca, Inc.; Notice of Filing and
                                                  the Professional Filing that it believes                                                                         Immediate Effectiveness of Proposed
                                                                                                          rules/sro.shtml); or
                                                  ‘‘. . . that the increased revenue from                   • Send an email to rule-comments@                      Rule Change Amending the
                                                  the proposal would assist the Exchange                  sec.gov. Please include File Number SR–                  Exchange’s Schedule of Fees and
                                                  to recoup fixed costs.’’ 23 The Exchange                NASDAQ–2016–113 on the subject line.                     Charges To Eliminate the Listing Fee
                                                  does not believe that providing                                                                                  in Connection With Exchange Listing
                                                  Professionals with the opportunity to                   Paper Comments                                           of Certain Exchange Traded Products
                                                  obtain lower remove fee in SPY,                            • Send paper comments in triplicate                   August 22, 2016.
                                                  equivalent to that of a Customer, creates               to Secretary, Securities and Exchange                       Pursuant to Section 19(b)(1) 1 of the
                                                  a competitive environment where                         Commission, 100 F Street NE.,                            Securities Exchange Act of 1934 (the
                                                  Professionals would be necessarily                      Washington, DC 20549–1090.                               ‘‘Act’’) 2 and Rule 19b–4 thereunder,3
                                                  advantaged on NOM as compared to                        All submissions should refer to File
                                                                                                                                                                   notice is hereby given that, on August
                                                  NOM Market Makers, Firms, Broker-                       Number SR–NASDAQ–2016–113. This
                                                                                                                                                                   8, 2016, NYSE Arca, Inc. (the
                                                  Dealers or Non-NOM Market Makers.                       file number should be included on the
                                                                                                                                                                   ‘‘Exchange’’ or ‘‘NYSE Arca’’) filed with
                                                                                                          subject line if email is used. To help the
                                                                                                                                                                   the Securities and Exchange
                                                  C. Self-Regulatory Organization’s                       Commission process and review your
                                                                                                                                                                   Commission (the ‘‘Commission’’) the
                                                  Statement on Comments on the                            comments more efficiently, please use
                                                                                                                                                                   proposed rule change as described in
                                                  Proposed Rule Change Received From                      only one method. The Commission will
                                                                                                                                                                   Items I, II, and III below, which Items
                                                  Members, Participants, or Others                        post all comments on the Commission’s
                                                                                                                                                                   have been prepared by the self-
                                                                                                          Internet Web site (http://www.sec.gov/
                                                    No written comments were either                                                                                regulatory organization. The
                                                                                                          rules/sro.shtml). Copies of the
                                                  solicited or received.                                                                                           Commission is publishing this notice to
                                                                                                          submission, all subsequent
                                                                                                                                                                   solicit comments on the proposed rule
                                                                                                          amendments, all written statements
                                                                                                                                                                   change from interested persons.
                                                                                                          with respect to the proposed rule
                                                                                                          change that are filed with the                           I. Self-Regulatory Organization’s
                                                                                                          Commission, and all written                              Statement of the Terms of Substance of
                                                     22 See Securities Exchange Act Release No. 64494     communications relating to the                           the Proposed Rule Change
                                                  (May 13, 2011), 76 FR 29014 (May 19, 2011) (SR–         proposed rule change between the                            The Exchange proposes to [sic] the
                                                  NASDAQ–2011–066) (‘‘Professional Filing’’). In this     Commission and any person, other than                    Exchange’s Schedule of Fees and
                                                  filing, the Exchange addressed the perceived            those that may be withheld from the                      Charges (‘‘Fee Schedule’’) to eliminate
                                                  favorable pricing of Professionals who were             public in accordance with the
mstockstill on DSK3G9T082PROD with NOTICES




                                                  assessed fees and paid rebates like a Customer prior
                                                                                                                                                                   the Listing Fee in connection with
                                                                                                          provisions of 5 U.S.C. 552, will be                      Exchange listing of certain Exchange
                                                  to the filing. The Exchange noted in that filing that
                                                  a Professional, unlike a retail Customer, has access
                                                                                                          available for Web site viewing and                       Traded Products, effective August 8,
                                                  to sophisticated trading systems that contain           printing in the Commission’s Public
                                                  functionality not available to retail Customers.        Reference Room, 100 F Street NE.,                          25 17 CFR 200.30–3(a)(12).
                                                     23 See Securities Exchange Act Release No. 64494     Washington, DC 20549, on official                          1 15 U.S.C. 78s(b)(1).
                                                  (May 13, 2011), 76 FR 29014 (May 19, 2011) (SR–                                                                    2 15 U.S.C. 78a.

                                                  NASDAQ–2011–066).                                         24 15   U.S.C. 78s(b)(3)(A)(ii).                         3 17 CFR 240.19b–4.




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Document Created: 2016-08-26 10:40:12
Document Modified: 2016-08-26 10:40:12
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation81 FR 59023 

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