82_FR_1384 82 FR 1381 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 7022(d)

82 FR 1381 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 7022(d)

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 82, Issue 3 (January 5, 2017)

Page Range1381-1383
FR Document2016-31936

Federal Register, Volume 82 Issue 3 (Thursday, January 5, 2017)
[Federal Register Volume 82, Number 3 (Thursday, January 5, 2017)]
[Notices]
[Pages 1381-1383]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-31936]


=======================================================================
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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-79701; File No. SR-NASDAQ-2016-175]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Amend Rule 7022(d)

December 29, 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 December 15, 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 the 
Substance of the Proposed Rule Change

    The Exchange proposes to amend Rule 7022(d) to increase the monthly 
fee for Nasdaq's Daily List and Fundamental Data report from $1,500 to 
$1,750.
    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 purpose of the proposed rule change is to amend Rule 7022(d) to 
increase the monthly fee for Nasdaq's Daily List and Fundamental Data 
report from $1,500 to $1,750. The Daily List provides important 
corporate action data--including new listings, delistings, symbol and 
name changes, and dividends--for the Nasdaq Stock Market and the Mutual 
Fund Quotation Service (``MFQS'') to the trading and market data 
community. Specifically, the Daily List is comprised of the following 
four data sets:
     Nasdaq Equity Data: Provides advance notification of new 
listings, delistings, corporate name changes, trading symbol changes, 
market tier changes, and Financial Status Indicator changes that occur 
on all tiers of the Nasdaq Stock Market.
     Mutual Fund Data: Provides advance notification of new 
listings, delistings, corporate name changes and fund identifier 
changes for mutual funds, money market funds and unit investment trusts 
that report via MFQS.
     Dividends: Provides advance notification of cash 
dividends, stock dividends, and stock splits for Nasdaq securities.
     Next Day Ex-Date: Summarizes the securities with dividend 
adjustments to be applied to the previous closing price on the next 
business day.
    In addition, Nasdaq recently enhanced the Daily List by adding (i) 
a tick pilot indicator that provides information about the status of 
each security under the Tick Size Pilot Program \3\ and (ii) a flag to 
identify securities that are exchange-traded funds (``ETFs'') and 
exchange-traded managed funds (``ETMFs'').
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    \3\ Order Approving the National Market System Plan to Implement 
a Tick Size Pilot Program by BATS Exchange, Inc., BATS Y-Exchange, 
Inc., Chicago Stock Exchange, Inc., EDGA Exchange, Inc., EDGX 
Exchange, Inc., Financial Industry Regulatory Authority, Inc., 
NASDAQ OMX BX, Inc., NASDAQ OMX PHLX LLC, The Nasdaq Stock Market 
LLC, New York Stock Exchange LLC, NYSE MKT LLC, and NYSE Arca, Inc., 
as Modified by the Commission, For a Two-Year Period, Securities 
Exchange Act Release No. 74892 (May 6, 2015), 80 FR 27514 (May 13, 
2015) (File No. 4-657).
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    Daily List files are available via secured Web site or secured file 
transfer protocol server and are posted and updated intraday. The Daily 
List also includes access to historical Daily List data dating back to 
either 1998 or 1999 (depending on the information).
    The Fundamental Data report provides a summary file of the prior 
day's trading activity for all Nasdaq-listed issues. Specifically, the 
report includes the following elements:
     Security Master Information: Issue Name, Issue Symbol, 
Issue Type, Issue Class, Listing Market Tier, Total Shares Outstanding, 
Public Float and Nasdaq Index Membership.
     Consolidated Market Statistics: Daily High Price, Daily 
Low Price, Daily Last Sale Price, Daily Share Volume, 52 Week High 
Price, 52 Week Low Price, Year-To-Date Volume
     Nasdaq Market Center Statistics: Nasdaq Official Closing 
Price and Nasdaq Closing Bid/Ask Quotation Prices.
    Like the Daily List, Fundamental Data files are available via 
secured Web site or secured file transfer protocol server. The 
information is provided on a T+1 basis.
    Current fees for the Daily List and Fundamental Data were 
established in 2013.\4\ Since that time, Nasdaq has implemented the 
enhancements to the Daily List product described above. Additionally, 
in 2014 Nasdaq introduced several enhancements to the MFQS portion of 
the Daily List product: A new ``test Symbol Flag'' field to clearly 
delineate MFQS test instruments from production instruments; a new 
``Symbol Reuse Flag'' to alert market data vendors that a previously 
used MFQS symbol is being issued to a new MFQS instrument; and a new 
``Instrument Registration'' field to clearly identify the U.S. 
regulatory agent responsible for oversight of a given MFQS instrument. 
Accordingly, to the extent that the proposed price increase exceeds the 
rate of overall inflation during the preceding four years, Nasdaq 
believes that it is warranted in light of the increased value of the 
product to market participants. Moreover, as discussed below, Nasdaq 
believes that the price of the product is constrained by market forces, 
such that any increase in the price of the product that was not 
reasonable in light of the product's value would be met with a 
competitive response.
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    \4\ Securities Exchange Act Release No. 68636 (January 11, 
2013), 78 FR 3940 (January 17, 2013) (SR-NASDAQ-2013-009).
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\5\ in general, and furthers the objectives of Sections 
6(b)(4) and 6(b)(5) of the Act,\6\ in particular, in that it provides 
for the equitable allocation of reasonable dues, fees and other charges

[[Page 1382]]

among members and issuers and other persons using any facility, and is 
not designed to permit unfair discrimination between customers, 
issuers, brokers, or dealers.
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    \5\ 15 U.S.C. 78f(b).
    \6\ 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.'' \7\
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    \7\ 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 \8\ 
(``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.\9\ 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.'' \10\
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    \8\ NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010).
    \9\ See NetCoalition, at 534-535.
    \10\ 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'. . . .'' \11\
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    \11\ 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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    Nasdaq believes that periodically it must adjust prices to reflect 
more accurately the value of its products and the investments made to 
enhance them. Given that the fee for the Daily List and Fundament Data 
product has not been adjusted for four years, Nasdaq believes that it 
is an appropriate time to adjust the fee to more accurately reflect its 
value, as well as the investments made to enhance it through the 
addition of additional data to the product.

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 overall fee levels associated with 
interacting with a particular venue to be excessive. In such an 
environment, the Exchange must continually adjust its fees to remain 
competitive. Because competitors are free to modify their own fees in 
response, and because market participants may readily adjust their 
order routing and data consumption practices, the Exchange believes 
that the degree to which fee changes in this market may impose any 
burden on competition is extremely limited.
    In this instance, the proposed change to the fee for the Daily List 
and Fundamental Data product does not impose a burden on competition 
because the product is completely voluntary and is not necessary in 
order to interact with the Exchange. Thus, if the fee proposed herein 
is disproportionate to the value provided by this product, it is likely 
that the Exchange will lose sales. Moreover, to the extent that market 
participants use the product in order to enhance their participation 
with the Exchange, an excessive fee may encourage them to route orders 
to other venues. 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.
    Specifically, market forces constrain fees for the Daily List and 
Fundamental Data product in three respects. First, fees related to data 
products that support interaction with an exchange are constrained by 
competition among exchanges and other entities attracting order flow. 
Nasdaq believes that firms make decisions regarding order routing and 
consumption of proprietary data based on the total cost of interacting 
with the Exchange, and order flow could be harmed by the 
supracompetitive pricing of any proprietary data product. Second, 
prices for the data are constrained by the potential for other 
exchanges and non-exchange data distributors to create products that 
replicate the Daily List and Fundamental Data product. Third, 
competition among Distributors constrains the cost of the data.
Competition for Order Flow
    Fees related to this product are constrained by competition among 
exchanges and other entities seeking to attract order flow. Order flow 
is the ``life blood'' of exchanges. Broker-dealers currently have 
numerous alternative venues for their order flow, including self-
regulatory organization (``SRO'') markets, internalizing broker-dealers 
(``BDs''), and various forms of alternative trading systems (``ATSs''), 
including dark pools and electronic communication networks (``ECNs''). 
Each SRO market competes to produce quotation information and 
transaction reports, and two FINRA-regulated Trade Reporting Facilities 
(``TRFs'') compete to attract internalized transaction reports. The 
existence of fierce competition for order flow implies a high degree of 
price sensitivity on the part of BDs, which may readily reduce costs by 
directing orders toward the lowest-cost trading venues.
    The level of competition and contestability in the market for order 
flow is demonstrated by the numerous examples of entrants that swiftly 
grew into some of the largest electronic trading platforms and 
proprietary data producers: Archipelago, Bloomberg Tradebook, Island, 
RediBook, Attain, TracECN, BATS Trading and BATS/Direct Edge. A 
proliferation of dark pools and other ATSs operate profitably with 
fragmentary shares of consolidated market volume. For a variety of 
reasons, competition from new entrants, especially for order execution, 
has increased dramatically over the last decade.
    Each SRO, TRF, ATS, and BD that competes for order flow is 
permitted to produce proprietary data products. Many currently do or 
have announced plans to do so, including NYSE, NYSE Amex, NYSE Arca, 
BATS, and IEX. This is because Regulation NMS deregulated the market 
for proprietary data. While BDs had previously published their 
proprietary data individually, Regulation NMS encourages market data 
vendors and BDs to produce proprietary products cooperatively in a 
manner never before possible. Order routers and market data vendors can 
facilitate production of proprietary data products for single or 
multiple BDs. The potential sources of proprietary products are 
virtually limitless.
    The markets for order flow and proprietary data are inextricably 
linked:

[[Page 1383]]

A trading platform cannot generate market information unless it 
receives trade orders. As a result, the competition for order flow 
constrains the prices that platforms can charge for proprietary data 
products. Firms make decisions on how much and what types of data to 
consume based on the total cost of interacting with Nasdaq and other 
exchanges. Data fees are but one factor in a total platform analysis. 
If the cost of the product exceeds its expected value, the broker-
dealer will choose not to buy it. A supracompetitive increase in the 
fees charged for either transactions or proprietary data has the 
potential to impair revenues from both products. In this manner, the 
competition for order flow constrains prices for proprietary data 
products.
Substitute Products
    The price of the data contained in the Daily List and Fundamental 
Data product is constrained by the ability of a data vendor to obtain 
the information necessary to create and sell competing products. Nasdaq 
does not have unique access to the information that is provided through 
the product, and market participants do not have an unqualified need 
for the information provided. Therefore, the price that Nasdaq can 
charge for the product is constrained by the ability of market 
participants to reduce their demand for the product and the ability of 
competitors to enter the market and profitably undercut any 
supracompetitive price increase.
Competition Among Distributors
    Distributors provide another form of price discipline for 
proprietary data products. Distributors are in competition for users, 
and can simply refuse to purchase any proprietary data product that 
fails to provide sufficient value for the price. If the price of this 
product were set above competitive levels, Distributors could determine 
whether the product was sufficiently attractive to their own customers 
to warrant incurring the costs associated with purchasing it for 
distribution. Since distributors are in competition with one another to 
attract customers, they must continually evaluate their cost base and 
the value of their product offering to customers to determine whether 
they allow them to maximize profitability. This competition for 
customers provides another check on the price for proprietary data 
products such as the Daily List and Fundamental Data.
    In summary, market forces constrain the price of the product 
through competition for order flow, competition from substitute 
products, and in the competition among distributors for customers. For 
these reasons, the Exchange has provided a substantial basis 
demonstrating that the fee is equitable, fair, reasonable, and not 
unreasonably discriminatory, and therefore consistent with and in 
furtherance of the purposes of the Exchange Act.

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 proposed rule change has become effective pursuant to 
Section 19(b)(3)(A)(ii) of the Act.\12\
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    \12\ 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-2016-175 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-2016-175. 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 Number SR-NASDAQ-2016-175, and should 
be submitted on or before January 26, 2017.
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    \13\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\13\
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2016-31936 Filed 1-4-17; 8:45 am]
 BILLING CODE 8011-01-P



                                                                                   Federal Register / Vol. 82, No. 3 / Thursday, January 5, 2017 / Notices                                                      1381

                                                    Dated: January 3, 2017.                                  A. Self-Regulatory Organization’s                      day’s trading activity for all Nasdaq-
                                                  Martha P. Rico,                                            Statement of the Purpose of, and                       listed issues. Specifically, the report
                                                  Secretary to the Board.                                    Statutory Basis for, the Proposed Rule                 includes the following elements:
                                                  [FR Doc. 2017–00005 Filed 1–3–17; 11:15 am]                Change                                                    • Security Master Information: Issue
                                                  BILLING CODE 7905–01–P                                     1. Purpose                                             Name, Issue Symbol, Issue Type, Issue
                                                                                                                                                                    Class, Listing Market Tier, Total Shares
                                                                                                                The purpose of the proposed rule                    Outstanding, Public Float and Nasdaq
                                                                                                             change is to amend Rule 7022(d) to                     Index Membership.
                                                  SECURITIES AND EXCHANGE                                    increase the monthly fee for Nasdaq’s
                                                  COMMISSION                                                                                                           • Consolidated Market Statistics:
                                                                                                             Daily List and Fundamental Data report                 Daily High Price, Daily Low Price, Daily
                                                  [Release No. 34–79701; File No. SR–                        from $1,500 to $1,750. The Daily List                  Last Sale Price, Daily Share Volume, 52
                                                  NASDAQ–2016–175]                                           provides important corporate action                    Week High Price, 52 Week Low Price,
                                                                                                             data—including new listings, delistings,               Year-To-Date Volume
                                                  Self-Regulatory Organizations; The                         symbol and name changes, and
                                                  NASDAQ Stock Market LLC; Notice of                                                                                   • Nasdaq Market Center Statistics:
                                                                                                             dividends—for the Nasdaq Stock Market                  Nasdaq Official Closing Price and
                                                  Filing and Immediate Effectiveness of                      and the Mutual Fund Quotation Service
                                                  Proposed Rule Change To Amend Rule                                                                                Nasdaq Closing Bid/Ask Quotation
                                                                                                             (‘‘MFQS’’) to the trading and market                   Prices.
                                                  7022(d)                                                    data community. Specifically, the Daily                   Like the Daily List, Fundamental Data
                                                  December 29, 2016.                                         List is comprised of the following four                files are available via secured Web site
                                                     Pursuant to Section 19(b)(1) of the                     data sets:                                             or secured file transfer protocol server.
                                                  Securities Exchange Act of 1934                               • Nasdaq Equity Data: Provides                      The information is provided on a T+1
                                                  (‘‘Act’’),1 and Rule 19b–4 thereunder,2                    advance notification of new listings,                  basis.
                                                  notice is hereby given that on December                    delistings, corporate name changes,
                                                                                                                                                                       Current fees for the Daily List and
                                                  15, 2016, The NASDAQ Stock Market                          trading symbol changes, market tier
                                                                                                                                                                    Fundamental Data were established in
                                                  LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) filed                     changes, and Financial Status Indicator
                                                                                                                                                                    2013.4 Since that time, Nasdaq has
                                                  with the Securities and Exchange                           changes that occur on all tiers of the
                                                                                                                                                                    implemented the enhancements to the
                                                  Commission (‘‘SEC’’ or ‘‘Commission’’)                     Nasdaq Stock Market.
                                                                                                                • Mutual Fund Data: Provides                        Daily List product described above.
                                                  the proposed rule change as described                                                                             Additionally, in 2014 Nasdaq
                                                                                                             advance notification of new listings,
                                                  in Items I, II, and III, below, which Items                                                                       introduced several enhancements to the
                                                                                                             delistings, corporate name changes and
                                                  have been prepared by the Exchange.                                                                               MFQS portion of the Daily List product:
                                                                                                             fund identifier changes for mutual
                                                  The Commission is publishing this                                                                                 A new ‘‘test Symbol Flag’’ field to
                                                                                                             funds, money market funds and unit
                                                  notice to solicit comments on the                                                                                 clearly delineate MFQS test instruments
                                                                                                             investment trusts that report via MFQS.
                                                  proposed rule change from interested                                                                              from production instruments; a new
                                                                                                                • Dividends: Provides advance
                                                  persons.                                                   notification of cash dividends, stock                  ‘‘Symbol Reuse Flag’’ to alert market
                                                  I. Self-Regulatory Organization’s                          dividends, and stock splits for Nasdaq                 data vendors that a previously used
                                                  Statement of the Terms of the Substance                    securities.                                            MFQS symbol is being issued to a new
                                                  of the Proposed Rule Change                                   • Next Day Ex-Date: Summarizes the                  MFQS instrument; and a new
                                                                                                             securities with dividend adjustments to                ‘‘Instrument Registration’’ field to
                                                     The Exchange proposes to amend                                                                                 clearly identify the U.S. regulatory agent
                                                                                                             be applied to the previous closing price
                                                  Rule 7022(d) to increase the monthly fee                                                                          responsible for oversight of a given
                                                                                                             on the next business day.
                                                  for Nasdaq’s Daily List and                                   In addition, Nasdaq recently                        MFQS instrument. Accordingly, to the
                                                  Fundamental Data report from $1,500 to                     enhanced the Daily List by adding (i) a                extent that the proposed price increase
                                                  $1,750.                                                    tick pilot indicator that provides                     exceeds the rate of overall inflation
                                                     The text of the proposed rule change                                                                           during the preceding four years, Nasdaq
                                                                                                             information about the status of each
                                                  is available on the Exchange’s Web site                                                                           believes that it is warranted in light of
                                                                                                             security under the Tick Size Pilot
                                                  at http://nasdaq.cchwallstreet.com, at                                                                            the increased value of the product to
                                                                                                             Program 3 and (ii) a flag to identify
                                                  the principal office of the Exchange, and                                                                         market participants. Moreover, as
                                                                                                             securities that are exchange-traded
                                                  at the Commission’s Public Reference                                                                              discussed below, Nasdaq believes that
                                                                                                             funds (‘‘ETFs’’) and exchange-traded
                                                  Room.                                                      managed funds (‘‘ETMFs’’).                             the price of the product is constrained
                                                  II. Self-Regulatory Organization’s                            Daily List files are available via                  by market forces, such that any increase
                                                  Statement of the Purpose of, and                           secured Web site or secured file transfer              in the price of the product that was not
                                                  Statutory Basis for, the Proposed Rule                     protocol server and are posted and                     reasonable in light of the product’s
                                                  Change                                                     updated intraday. The Daily List also                  value would be met with a competitive
                                                                                                             includes access to historical Daily List               response.
                                                     In its filing with the Commission, the
                                                                                                             data dating back to either 1998 or 1999
                                                  Exchange included statements                                                                                      2. Statutory Basis
                                                                                                             (depending on the information).
                                                  concerning the purpose of and basis for                       The Fundamental Data report                           The Exchange believes that its
                                                  the proposed rule change and discussed                     provides a summary file of the prior                   proposal is consistent with Section 6(b)
                                                  any comments it received on the
                                                                                                                                                                    of the Act,5 in general, and furthers the
                                                  proposed rule change. The text of these                      3 Order Approving the National Market System

                                                  statements may be examined at the                                                                                 objectives of Sections 6(b)(4) and 6(b)(5)
                                                                                                             Plan to Implement a Tick Size Pilot Program by
                                                                                                                                                                    of the Act,6 in particular, in that it
mstockstill on DSK3G9T082PROD with NOTICES




                                                  places specified in Item IV below. The                     BATS Exchange, Inc., BATS Y-Exchange, Inc.,
                                                  Exchange has prepared summaries, set                       Chicago Stock Exchange, Inc., EDGA Exchange,           provides for the equitable allocation of
                                                                                                             Inc., EDGX Exchange, Inc., Financial Industry          reasonable dues, fees and other charges
                                                  forth in sections A, B, and C below, of                    Regulatory Authority, Inc., NASDAQ OMX BX, Inc.,
                                                  the most significant aspects of such                       NASDAQ OMX PHLX LLC, The Nasdaq Stock                     4 Securities Exchange Act Release No. 68636
                                                  statements.                                                Market LLC, New York Stock Exchange LLC, NYSE
                                                                                                             MKT LLC, and NYSE Arca, Inc., as Modified by the       (January 11, 2013), 78 FR 3940 (January 17, 2013)
                                                                                                             Commission, For a Two-Year Period, Securities          (SR–NASDAQ–2013–009).
                                                    1 15   U.S.C. 78s(b)(1).                                                                                           5 15 U.S.C. 78f(b).
                                                                                                             Exchange Act Release No. 74892 (May 6, 2015), 80
                                                    2 17   CFR 240.19b–4.                                    FR 27514 (May 13, 2015) (File No. 4–657).                 6 15 U.S.C. 78f(b)(4) and (5).




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                                                  1382                          Federal Register / Vol. 82, No. 3 / Thursday, January 5, 2017 / Notices

                                                  among members and issuers and other                     the fee to more accurately reflect its                 exchange data distributors to create
                                                  persons using any facility, and is not                  value, as well as the investments made                 products that replicate the Daily List
                                                  designed to permit unfair                               to enhance it through the addition of                  and Fundamental Data product. Third,
                                                  discrimination between customers,                       additional data to the product.                        competition among Distributors
                                                  issuers, brokers, or dealers.                                                                                  constrains the cost of the data.
                                                                                                          B. Self-Regulatory Organization’s
                                                     The Commission and the courts have
                                                                                                          Statement on Burden on Competition                     Competition for Order Flow
                                                  repeatedly expressed their preference
                                                  for competition over regulatory                            The Exchange does not believe that                     Fees related to this product are
                                                  intervention in determining prices,                     the proposed rule change will impose                   constrained by competition among
                                                  products, and services in the securities                any burden on competition not                          exchanges and other entities seeking to
                                                  markets. In Regulation NMS, while                       necessary or appropriate in furtherance                attract order flow. Order flow is the ‘‘life
                                                  adopting a series of steps to improve the               of the purposes of the Act. In terms of                blood’’ of exchanges. Broker-dealers
                                                  current market model, the Commission                    inter-market competition, the Exchange                 currently have numerous alternative
                                                  highlighted the importance of market                    notes that it operates in a highly                     venues for their order flow, including
                                                  forces in determining prices and SRO                    competitive market in which market                     self-regulatory organization (‘‘SRO’’)
                                                  revenues, and also recognized that                      participants can readily favor competing               markets, internalizing broker-dealers
                                                  current regulation of the market system                 venues if they deem overall fee levels                 (‘‘BDs’’), and various forms of
                                                  ‘‘has been remarkably successful in                     associated with interacting with a                     alternative trading systems (‘‘ATSs’’),
                                                  promoting market competition in its                     particular venue to be excessive. In such              including dark pools and electronic
                                                  broader forms that are most important to                an environment, the Exchange must                      communication networks (‘‘ECNs’’).
                                                  investors and listed companies.’’ 7                     continually adjust its fees to remain                  Each SRO market competes to produce
                                                     Likewise, in NetCoalition v. Securities              competitive. Because competitors are                   quotation information and transaction
                                                  and Exchange Commission 8                               free to modify their own fees in                       reports, and two FINRA-regulated Trade
                                                  (‘‘NetCoalition’’), the D.C. Circuit                    response, and because market                           Reporting Facilities (‘‘TRFs’’) compete
                                                  upheld the Commission’s use of a                        participants may readily adjust their                  to attract internalized transaction
                                                  market-based approach in evaluating the                 order routing and data consumption                     reports. The existence of fierce
                                                  fairness of market data fees against a                  practices, the Exchange believes that the              competition for order flow implies a
                                                  challenge claiming that Congress                        degree to which fee changes in this                    high degree of price sensitivity on the
                                                  mandated a cost-based approach.9 As                     market may impose any burden on                        part of BDs, which may readily reduce
                                                  the court emphasized, the Commission                    competition is extremely limited.                      costs by directing orders toward the
                                                                                                             In this instance, the proposed change               lowest-cost trading venues.
                                                  ‘‘intended in Regulation NMS that
                                                                                                          to the fee for the Daily List and                         The level of competition and
                                                  ‘market forces, rather than regulatory
                                                                                                          Fundamental Data product does not                      contestability in the market for order
                                                  requirements’ play a role in determining
                                                                                                          impose a burden on competition                         flow is demonstrated by the numerous
                                                  the market data . . . to be made
                                                                                                          because the product is completely                      examples of entrants that swiftly grew
                                                  available to investors and at what
                                                                                                          voluntary and is not necessary in order                into some of the largest electronic
                                                  cost.’’ 10
                                                                                                          to interact with the Exchange. Thus, if                trading platforms and proprietary data
                                                     Further, ‘‘[n]o one disputes that
                                                                                                          the fee proposed herein is                             producers: Archipelago, Bloomberg
                                                  competition for order flow is ‘fierce.’
                                                                                                          disproportionate to the value provided                 Tradebook, Island, RediBook, Attain,
                                                  . . . As the SEC explained, ‘[i]n the U.S.
                                                                                                          by this product, it is likely that the                 TracECN, BATS Trading and BATS/
                                                  national market system, buyers and
                                                                                                          Exchange will lose sales. Moreover, to                 Direct Edge. A proliferation of dark
                                                  sellers of securities, and the broker-
                                                                                                          the extent that market participants use                pools and other ATSs operate profitably
                                                  dealers that act as their order-routing
                                                                                                          the product in order to enhance their                  with fragmentary shares of consolidated
                                                  agents, have a wide range of choices of
                                                                                                          participation with the Exchange, an                    market volume. For a variety of reasons,
                                                  where to route orders for execution’;                   excessive fee may encourage them to                    competition from new entrants,
                                                  [and] ‘no exchange can afford to take its               route orders to other venues.                          especially for order execution, has
                                                  market share percentages for granted’                   Accordingly, the Exchange does not                     increased dramatically over the last
                                                  because ‘no exchange possesses a                        believe that the proposed changes will                 decade.
                                                  monopoly, regulatory or otherwise, in                   impair the ability of members or                          Each SRO, TRF, ATS, and BD that
                                                  the execution of order flow from broker                 competing order execution venues to                    competes for order flow is permitted to
                                                  dealers’. . . .’’ 11                                    maintain their competitive standing in                 produce proprietary data products.
                                                     Nasdaq believes that periodically it                 the financial markets.                                 Many currently do or have announced
                                                  must adjust prices to reflect more                         Specifically, market forces constrain               plans to do so, including NYSE, NYSE
                                                  accurately the value of its products and                fees for the Daily List and Fundamental                Amex, NYSE Arca, BATS, and IEX. This
                                                  the investments made to enhance them.                   Data product in three respects. First,                 is because Regulation NMS deregulated
                                                  Given that the fee for the Daily List and               fees related to data products that                     the market for proprietary data. While
                                                  Fundament Data product has not been                     support interaction with an exchange                   BDs had previously published their
                                                  adjusted for four years, Nasdaq believes                are constrained by competition among                   proprietary data individually,
                                                  that it is an appropriate time to adjust                exchanges and other entities attracting                Regulation NMS encourages market data
                                                     7 Securities Exchange Act Release No. 51808
                                                                                                          order flow. Nasdaq believes that firms                 vendors and BDs to produce proprietary
                                                  (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005)
                                                                                                          make decisions regarding order routing                 products cooperatively in a manner
                                                                                                          and consumption of proprietary data                    never before possible. Order routers and
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                                                  (‘‘Regulation NMS Adopting Release’’).
                                                     8 NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir.       based on the total cost of interacting                 market data vendors can facilitate
                                                  2010).                                                  with the Exchange, and order flow                      production of proprietary data products
                                                     9 See NetCoalition, at 534–535.
                                                                                                          could be harmed by the                                 for single or multiple BDs. The potential
                                                     10 Id. at 537.
                                                     11 Id. at 539 (quoting Securities Exchange Act
                                                                                                          supracompetitive pricing of any                        sources of proprietary products are
                                                  Release No. 59039 (December 2, 2008), 73 FR
                                                                                                          proprietary data product. Second, prices               virtually limitless.
                                                  74770, 74782–83 (December 9, 2008) (SR–                 for the data are constrained by the                       The markets for order flow and
                                                  NYSEArca–2006–21)).                                     potential for other exchanges and non-                 proprietary data are inextricably linked:


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                                                                                Federal Register / Vol. 82, No. 3 / Thursday, January 5, 2017 / Notices                                                     1383

                                                  A trading platform cannot generate                      from substitute products, and in the                     post all comments on the Commission’s
                                                  market information unless it receives                   competition among distributors for                       Internet Web site (http://www.sec.gov/
                                                  trade orders. As a result, the                          customers. For these reasons, the                        rules/sro.shtml). Copies of the
                                                  competition for order flow constrains                   Exchange has provided a substantial                      submission, all subsequent
                                                  the prices that platforms can charge for                basis demonstrating that the fee is                      amendments, all written statements
                                                  proprietary data products. Firms make                   equitable, fair, reasonable, and not                     with respect to the proposed rule
                                                  decisions on how much and what types                    unreasonably discriminatory, and                         change that are filed with the
                                                  of data to consume based on the total                   therefore consistent with and in                         Commission, and all written
                                                  cost of interacting with Nasdaq and                     furtherance of the purposes of the                       communications relating to the
                                                  other exchanges. Data fees are but one                  Exchange Act.                                            proposed rule change between the
                                                  factor in a total platform analysis. If the                                                                      Commission and any person, other than
                                                  cost of the product exceeds its expected                C. Self-Regulatory Organization’s                        those that may be withheld from the
                                                  value, the broker-dealer will choose not                Statement on Comments on the                             public in accordance with the
                                                  to buy it. A supracompetitive increase                  Proposed Rule Change Received From                       provisions of 5 U.S.C. 552, will be
                                                  in the fees charged for either                          Members, Participants, or Others                         available for Web site viewing and
                                                  transactions or proprietary data has the                  No written comments were either                        printing in the Commission’s Public
                                                  potential to impair revenues from both                  solicited or received.                                   Reference Room, 100 F Street NE.,
                                                  products. In this manner, the                                                                                    Washington, DC 20549 on official
                                                                                                          III. Date of Effectiveness of the
                                                  competition for order flow constrains                                                                            business days between the hours of
                                                                                                          Proposed Rule Change and Timing for
                                                  prices for proprietary data products.                                                                            10:00 a.m. and 3:00 p.m. Copies of such
                                                                                                          Commission Action
                                                                                                                                                                   filing also will be available for
                                                  Substitute Products                                        The foregoing proposed rule change                    inspection and copying at the principal
                                                    The price of the data contained in the                has become effective pursuant to                         office of the Exchange. All comments
                                                  Daily List and Fundamental Data                         Section 19(b)(3)(A)(ii) of the Act.12                    received will be posted without change;
                                                  product is constrained by the ability of                   At any time within 60 days of the                     the Commission does not edit personal
                                                  a data vendor to obtain the information                 filing of the proposed rule change, the                  identifying information from
                                                  necessary to create and sell competing                  Commission summarily may                                 submissions. You should submit only
                                                  products. Nasdaq does not have unique                   temporarily suspend such rule change if                  information that you wish to make
                                                  access to the information that is                       it appears to the Commission that such                   available publicly. All submissions
                                                  provided through the product, and                       action is: (i) Necessary or appropriate in               should refer to File Number SR–
                                                  market participants do not have an                      the public interest; (ii) for the protection             NASDAQ–2016–175, and should be
                                                  unqualified need for the information                    of investors; or (iii) otherwise in                      submitted on or before January 26, 2017.
                                                  provided. Therefore, the price that                     furtherance of the purposes of the Act.                    For the Commission, by the Division of
                                                  Nasdaq can charge for the product is                    If the Commission takes such action, the                 Trading and Markets, pursuant to delegated
                                                  constrained by the ability of market                    Commission shall institute proceedings                   authority.13
                                                  participants to reduce their demand for                 to determine whether the proposed rule                   Eduardo A. Aleman,
                                                  the product and the ability of                          should be approved or disapproved.                       Assistant Secretary.
                                                  competitors to enter the market and
                                                  profitably undercut any                                 IV. Solicitation of Comments                             [FR Doc. 2016–31936 Filed 1–4–17; 8:45 am]
                                                                                                                                                                   BILLING CODE 8011–01–P
                                                  supracompetitive price increase.                          Interested persons are invited to
                                                                                                          submit written data, views, and
                                                  Competition Among Distributors
                                                                                                          arguments concerning the foregoing,                      SECURITIES AND EXCHANGE
                                                     Distributors provide another form of                 including whether the proposed rule
                                                  price discipline for proprietary data                                                                            COMMISSION
                                                                                                          change is consistent with the Act.
                                                  products. Distributors are in                           Comments may be submitted by any of                      [Release No. 34–79712; File No. SR–CBOE–
                                                  competition for users, and can simply                   the following methods:                                   2016–091]
                                                  refuse to purchase any proprietary data
                                                  product that fails to provide sufficient                Electronic Comments                                      Self-Regulatory Organizations;
                                                  value for the price. If the price of this                 • Use the Commission’s Internet                        Chicago Board Options Exchange,
                                                  product were set above competitive                      comment form (http://www.sec.gov/                        Incorporated; Notice of Filing of a
                                                  levels, Distributors could determine                    rules/sro.shtml); or                                     Proposed Rule Change Related to a
                                                  whether the product was sufficiently                      • Send an email to rule-comments@                      Change to the Trading Symbol for
                                                  attractive to their own customers to                    sec.gov. Please include File Number SR–                  P.M.-Settled Options on the Standard &
                                                  warrant incurring the costs associated                  NASDAQ–2016–175 on the subject line.                     Poor’s 500 Index
                                                  with purchasing it for distribution.                                                                             December 29, 2016.
                                                                                                          Paper Comments
                                                  Since distributors are in competition                                                                               Pursuant to Section 19(b)(1) of the
                                                  with one another to attract customers,                     • Send paper comments in triplicate                   Securities Exchange Act of 1934 (the
                                                  they must continually evaluate their                    to Secretary, Securities and Exchange                    ‘‘Act’’),1 and Rule 19b–4 thereunder,2
                                                  cost base and the value of their product                Commission, 100 F Street NE.,                            notice is hereby given that on December
                                                  offering to customers to determine                      Washington, DC 20549–1090.                               16, 2016, Chicago Board Options
                                                  whether they allow them to maximize                     All submissions should refer to File                     Exchange, Incorporated (the ‘‘Exchange’’
                                                  profitability. This competition for                     Number SR–NASDAQ–2016–175. This
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                                                                                                                                                                   or ‘‘CBOE’’) filed with the Securities
                                                  customers provides another check on                     file number should be included on the                    and Exchange Commission (the
                                                  the price for proprietary data products                 subject line if email is used. To help the               ‘‘Commission’’) the proposed rule
                                                  such as the Daily List and Fundamental                  Commission process and review your                       change as described in Items I, II, and
                                                  Data.                                                   comments more efficiently, please use
                                                     In summary, market forces constrain                  only one method. The Commission will                       13 17 CFR 200.30–3(a)(12).
                                                  the price of the product through                                                                                   1 15 U.S.C. 78s(b)(1).
                                                  competition for order flow, competition                   12 15   U.S.C. 78s(b)(3)(A)(ii).                         2 17 CFR 240.19b–4.




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Document Created: 2018-02-01 14:50:53
Document Modified: 2018-02-01 14:50:53
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
DatesSummarizes the securities with dividend adjustments to be applied to the previous closing price on the next business day.
FR Citation82 FR 1381 

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