[Federal Register Volume 86, Number 56 (Thursday, March 25, 2021)]
[Notices]
[Pages 15978-15980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06116]


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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-91371; File No. SR-NYSEArca-2021-19]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend the NYSE 
Arca Equities Proprietary Market Data Fee Schedule and the NYSE Arca 
Options Proprietary Market Data Fee Schedule

March 19, 2021.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that, on March 10, 2021, NYSE Arca, Inc. (``NYSE Arca'' or the 
``Exchange'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend the NYSE Arca Equities Proprietary 
Market Data Fee Schedule and the NYSE Arca Options Proprietary Market 
Data Fee Schedule (together, ``Market Data Fee Schedules'') to adopt a 
billing dispute practice substantially similar to the practice adopted 
by another group of exchanges for their transaction and market data 
fees. The proposed rule change is available on the Exchange's website 
at www.nyse.com, at the principal office of the Exchange, and at the 
Commission's Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend the Market Data Fee Schedules to 
adopt a billing dispute practice similar to the practice adopted by 
another group of exchanges for their transaction and market data fees. 
As discussed below, the proposed provision would be substantially 
similar to provision in the fee schedules of the Cboe U.S. Equities 
markets--Cboe BZX Exchange, Inc. (``BZX Equities''),\4\ Cboe BYX 
Exchange, Inc. (``BYX Equities''),\5\ Cboe EDGA Exchange, Inc. (``EDGA 
Equities''),\6\ Cboe EDGX Exchange, Inc. (``EDGX Equities'') \7\--and 
the Cboe U.S Options markets--Cboe Exchange, Inc. (``Cboe 
Options''),\8\ Cboe C2 Exchange, Inc. (``C2 Options''),\9\ the options 
platform of Cboe BZX Exchange, Inc. (``BZX Options''),\10\ the options 
platform of Cboe EDGX Exchange, Inc. (``EDGX Options'') (collectively, 
the ``Cboe Exchanges'').\11\ In addition, the Exchange and the 
Exchange's affiliates, New York Stock Exchange LLC (``NYSE''), NYSE 
American LLC (``NYSE American''), NYSE Chicago, Inc. (``NYSE Chicago'') 
and NYSE National, Inc. (``NYSE National'') as well as other equities 
and options markets \12\ already have in place a similar billing 
dispute provision for transaction fees.
---------------------------------------------------------------------------

    \4\ See BZX Equities Fee Schedule, available at, https://markets.cboe.com/us/equities/membership/fee_schedule/bzx/. See also 
Securities Exchange Act Release No. 90897 (January 11, 2021), 86 FR 
4161 (January 15, 2021) (SR-CboeBZX-2020-094).
    \5\ See BYX Equities Fee Schedule, available at, https://markets.cboe.com/us/equities/membership/fee_schedule/byx/. See also 
Securities Exchange Act Release No. 90899 (January 11, 2021), 86 FR 
4156 (January 15, 2021) (SR-CboeBYX-2020-034).
    \6\ See EDGA Equities Fee Schedule, available at, https://markets.cboe.com/us/equities/membership/fee_schedule/edga/. See also 
Securities Exchange Act Release No. 90900 (January 11, 2021), 86 FR 
4149 (January 15, 2021) (SR-CboeEDGA-2020-032).
    \7\ See EDGX Equities Fee Schedule, available at, https://markets.cboe.com/us/equities/membership/fee_schedule/edgx/. See also 
Securities Exchange Act Release No. 90901 (January 11, 2021), 86 FR 
4137 (January 15, 2021) (SR-CboeEDGX-2020-064).
    \8\ See Cboe Options Fee Schedule, footnote 7, available at, 
https://cdn.cboe.com/resources/membership/Cboe_FeeSchedule.pdf. See 
also Securities Exchange Act Release No. 91053 (February 3, 2021), 
86 FR 8814 (February 9, 2021) (SR-Cboe-2021-010).
    \9\ See C2 Options Fee Schedule, available at, https://markets.cboe.com/us/options/membership/fee_schedule/ctwo/. See also 
Securities Exchange Act Release No. 91049 (February 3, 2021), 86 FR 
8824 (February 9, 2021) (SR-C2-2021-002).
    \10\ See BZX Options Fee Schedule, available at, https://markets.cboe.com/us/options/membership/fee_schedule/bzx/. See also 
Securities Exchange Act Release No. 90897 (January 11, 2021), 86 FR 
4161 (January 15, 2021) (SR-CboeBZX-2020-094).
    \11\ See EDGX Options Fee Schedule, available at, https://markets.cboe.com/us/options/membership/fee_schedule/edgx/. See also 
Securities Exchange Act Release No. 90901 (January 11, 2021), 86 FR 
4137 (January 15, 2021) (SR-CboeEDGX-2020-064).
    \12\ See NASDAQ Equity Rules, Equity 7 (Pricing Schedule), 
Section 70(b) (all fee disputes must be submitted no later than 60 
days after receipt of billing invoice, in writing and accompanied by 
supporting documentation); NASDAQ Options Rules, Options 7 (Pricing 
Schedule), Section 7(a)-(b) (same); NASDAQ BX Equity Rules, Equity 7 
(Pricing Schedule), Section 111(b) (Collection of Exchange Fees and 
Other Claims and Billing Policy) (same); NASDAQ BX Options Rules, 
Options 7 (Pricing Schedule), Section 7(a)-(b) (BX Options Fee 
Disputes) (same); NASDAQ PHLX Equity Rules, Equity 7 (Pricing 
Schedule), Section 1(a) (same); NASDAQ PHLX Options Rules, Options 7 
(Pricing Schedule), Section 1(a) (same); NASDAQ ISE Options Rules, 
Options 7 (Pricing Schedule), Section 1(b) (same); NASDAQ GEMX 
Options Rules, Options 7 (Pricing Schedule), Section 1(b) (same); 
NASDAQ MRX Options Rules, Options 7 (Pricing Schedule), Section 1(b) 
(same); MIAX Options Fee Schedule, available at https://www.miaxoptions.com/sites/default/files/fee_schedule-files/MIAX_Options_Fee_Schedule_01_13_21.pdf (same); MIAX Pearl Fee 
Schedule, available at https://www.miaxoptions.com/sites/default/files/fee_schedule-files/MIAX_PEARL_Options_Fee_Schedule_03012021.pdf (same); and MIAX 
Emerald Fee Schedule, available at https://www.miaxoptions.com/sites/default/files/fee_schedule-files/MIAX_Emerald_Fee_Schedule_02_22_21.pdf (same).
---------------------------------------------------------------------------

Background
    The Exchange proposes to amend the Market Data Fee Schedules to 
adopt a

[[Page 15979]]

billing dispute procedure to prevent market data subscribers from 
contesting their bills long after they have been sent an invoice. The 
Exchange and other equities and options markets already have a billing 
dispute procedure in effect for their transaction fees that allows for 
sixty (60) days to dispute billing errors.\13\ The Cboe Exchanges also 
have a billing dispute procedure in place for both its equities markets 
and options markets and apply that procedure to both transaction fees 
and market data fees on each of the Cboe Exchanges.\14\ In contrast to 
the other exchanges, the Cboe Exchanges' billing dispute policy allows 
for ``three full calendar months'' to dispute billing errors.\15\ 
Similar to the Cboe Exchanges, the Exchange is proposing a ninety (90) 
day period for market data subscribers to dispute billing errors.
---------------------------------------------------------------------------

    \13\ See id.
    \14\ See notes 4-11, supra.
    \15\ The Cboe Exchanges' billing dispute policy provides, in 
relevant part: ``All fees and rebates assessed prior to the three 
full calendar months before the month in which the Exchange becomes 
aware of a billing error shall be considered final.''
---------------------------------------------------------------------------

    As proposed, all disputes concerning market data fees and credits 
billed by the Exchange would have to be submitted to the Exchange in 
writing and accompanied by supporting documentation. Further, all 
disputes would have to be submitted no later than ninety (90) days 
after receipt of a billing invoice. After ninety days, all market data 
fees assessed by the Exchange would be considered final. The Exchange 
believes that this requirement, which is substantially similar to that 
in place on the Cboe Exchanges,\16\ will streamline the billing dispute 
process. The Exchange would resolve an error by crediting or debiting 
market data subscribers based on the fees or credits that should have 
applied and will make billing adjustments regardless of whether the 
error was discovered by the Exchange or by a subscriber that submitted 
a dispute to the Exchange.
---------------------------------------------------------------------------

    \16\ See notes 4-11, supra.
---------------------------------------------------------------------------

    The Exchange believes it is reasonable for market data subscribers 
to become aware of any potential billing errors within ninety (90) 
calendar days of receiving an invoice. The Exchange provides all 
subscribers on-line access to view their current subscriptions and 
their invoices. In addition to being able to view the level of their 
subscription, the Exchange also sends subscribers an invoice by mail 
each month. Given the tools that the Exchange provides to allow 
subscribers to monitor their billing, requiring that subscribers 
dispute an invoice within ninety (90) calendar days will encourage them 
to review their invoices promptly so that any disputed charges can be 
addressed in a timely manner while the information and data underlying 
those charges (e.g., applicable fees and subscriber information) is 
still easily and readily available. This practice will avoid issues 
that may arise when subscribers do not dispute an invoice in a timely 
manner, and will conserve Exchange resources that would have to be 
expended to resolve untimely billing disputes.\17\ As such, the 
proposed rule change would alleviate administrative burdens related to 
billing disputes, which could divert staff resources away from the 
Exchange's regulatory and business purposes. The proposed rule change 
to provide all fees and credits are final after ninety (90) days also 
provides both the Exchange and subscribers finality and the ability to 
close their books after a known period of time. Finally, the Exchange 
notes that it routinely conducts audits of its market data customers to 
ensure that customers are complying with the terms of the subscriber 
agreement they have signed. The audit process is independent of the 
billing process. The audit function is administered by the Exchange's 
market data compliance group and the billing function is administered 
by the Exchange's market data operations group. Each group is charged 
with distinct responsibilities that do not overlap. The proposed 
billing dispute provision is not intended to circumvent the audit 
process in any manner and the adoption of the ninety (90) day period to 
dispute billing errors would not affect subscribers' ability to take a 
position with respect to billing charges identified through the audit 
process.
---------------------------------------------------------------------------

    \17\ The same rationale has been advanced by the other markets 
that have adopted a similar billing procedure. See, e.g., Securities 
Exchange Act Release No. 71286 (January 14, 2014), 79 FR 3442, 3442 
(January 21, 2014) (SR-ISE-2014-02).
---------------------------------------------------------------------------

    In order for subscribers to be fully aware of this rule regarding 
fee disputes, the Exchange proposes to include the language proposed 
for the Market Data Fee Schedules on each customer invoice.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the provisions of Section 6(b) of the Act,\18\ in general, and 
Section 6(b)(5) of the Act.\19\ Specifically, the Exchange believes the 
proposed rule change is consistent with the Section 6(b)(5) 
requirements that the rules of an exchange be designed to prevent 
fraudulent and manipulative acts and practices, to promote just and 
equitable principles of trade, to foster cooperation and coordination 
with persons engaged in regulating, clearing, settling, processing 
information with respect to, and facilitating transactions in 
securities, to remove impediments to and perfect the mechanism of a 
free and open market and a national market system, and, in general, to 
protect investors and the public interest. Additionally, the Exchange 
believes the proposed rule change is consistent with the Section 
6(b)(5) requirement that the rules of an exchange not be designed to 
permit unfair discrimination between customers, issuers, brokers, or 
dealers.
---------------------------------------------------------------------------

    \18\ 15 U.S.C. 78f(b).
    \19\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange believes the requirement to submit all billing 
disputes in writing, and with supporting documentation, within ninety 
(90) days from receipt of the invoice, is reasonable because, as noted 
above, the Exchange provides ample tools for market data subscribers to 
properly and swiftly monitor and account for various charges incurred 
in a given month. Also, the proposal is not unfairly discriminatory 
because it would apply equally to all market data subscribers. The 
proposed provision regarding fee disputes in the Market Data Fee 
Schedules promotes the protection of investors and the public interest 
by providing a clear and concise time frame for market data subscribers 
to dispute market data fees and for the Exchange to review such 
disputes in a timely manner. In addition, the proposed 90-day 
limitation promotes just and equitable principles of trade because it 
would be implemented prospectively on all market data subscribers, only 
applying to invoices issued after the proposed rule change becomes 
operative. Moreover, the proposed billing dispute language, which will 
lower the Exchange's administrative burden, is substantially similar to 
the billing dispute language adopted by the Cboe Exchanges,\20\ and 
with the one difference noted above,\21\ the proposed provision is same 
as that in place at the Exchange's affiliates for transaction fees and 
at other equities and options markets.\22\
---------------------------------------------------------------------------

    \20\ See notes 4-11, supra.
    \21\ Whereas the Exchange, its affiliates and other equities and 
options markets allow for sixty (60) days to dispute billing errors, 
the Cboe Exchanges' billing dispute policy allows for ``three full 
calendar months.'' See note 15, supra.
    \22\ See note 12, supra.
---------------------------------------------------------------------------

    For the foregoing reasons, the Exchange believes that the proposal 
is consistent with the Act.

[[Page 15980]]

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

    In accordance with Section 6(b)(8) of the Act,\23\ the Exchange 
believes that the proposed rule change would not impose any burden on 
competition that is not necessary or appropriate in furtherance of the 
purposes of the Act. The proposed rule change, which would apply 
equally to all market data subscribers, would establish a clear process 
for billing disputes, and is substantially similar to rules adopted by 
the Cboe Exchanges and rules adopted by other equities and options 
markets as well as by the Exchange's affiliates for transaction fees. 
The Exchange does not believe the proposed rule change would impair the 
ability of market data subscribers or competing venues that also sell 
market data products to maintain their competitive standing in the 
financial markets. Moreover, because the Exchange does not propose to 
alter or modify specific fees or credits applicable to market data 
subscribers, the proposal does not impose any burden on competition.
---------------------------------------------------------------------------

    \23\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

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

    No written comments were solicited or received with respect to the 
proposed rule change.

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

    The Exchange has filed the proposed rule change pursuant to Section 
19(b)(3)(A)(iii) of the Act \24\ and Rule 19b-4(f)(6) thereunder.\25\ 
Because the proposed rule change does not: (i) Significantly affect the 
protection of investors or the public interest; (ii) impose any 
significant burden on competition; and (iii) become operative prior to 
30 days from the date on which it was filed, or such shorter time as 
the Commission may designate, if consistent with the protection of 
investors and the public interest, the proposed rule change has become 
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.
---------------------------------------------------------------------------

    \24\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \25\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission shall institute proceedings under 
Section 19(b)(2)(B) \26\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \26\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

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-NYSEArca-2021-19 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-NYSEArca-2021-19. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (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 website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549 on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-NYSEArca-2021-19 and should be submitted 
on or before April 15, 2021.
---------------------------------------------------------------------------

    \27\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\27\
Eduardo A. Aleman,
Deputy Secretary.
[FR Doc. 2021-06116 Filed 3-24-21; 8:45 am]
BILLING CODE 8011-01-P