[Federal Register Volume 89, Number 139 (Friday, July 19, 2024)]
[Notices]
[Pages 58816-58819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15911]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-100531; File No. SR-BX-2024-022]


Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend Its 
Pricing Schedule at Equity 7, Section 118(a)

July 15, 2024.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on July 1, 2024, Nasdaq BX, Inc. (``BX'' or ``Exchange'') filed with 
the Securities and Exchange Commission (``SEC'' or ``Commission'') the 
proposed rule change as described in Items I, II and III, below, which 
Items have been prepared by the Exchange. The Commission is publishing 
this notice to solicit comments on the proposed rule change from 
interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend the Exchange's pricing schedule at 
Equity 7, Section 118(a), as described further below.
    The text of the proposed rule change is available on the Exchange's 
website at https://listingcenter.nasdaq.com/rulebook/bx/rules, 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 provide an additional 
calculation for purposes of determining

[[Page 58817]]

whether a member qualifies for discounts to fees set forth in Equity 7, 
Section 118(f) that pertain to providing liquidity.
    The Exchange operates on the ``taker-maker'' model, whereby it 
generally pays credits to members that take liquidity and charges fees 
to members that provide liquidity. In Equity 7, Section 118(f), the 
Exchange sets forth its Qualified Market Maker (``QMM'') Program, which 
provides supplemental incentives to members that meet certain quality 
standards in acting as market makers for securities on the Exchange. 
Pursuant to Equity 7, Section 118(f)(2)(i), to the extent that the 
Exchange designates a member to be a QMM because it quotes at the NBBO 
at least 10% of the time during Market Hours in an average of at least 
325 securities per day during a month and provides add volume of at 
least 0.07% of total Consolidated Volume during a month, then the 
Exchange will provide the QMM with a discount of $0.0001 per share 
executed with respect to the fees that the QMM otherwise incurs, 
pursuant to Section 118(a), for entering displayed orders in securities 
priced at $1 or more that provide liquidity to the Exchange.
    Members may qualify for the discount under the QMM Program based, 
in part, upon the volume of their activities on the Exchange as a 
percentage of total ``Consolidated Volume.'' Pursuant to Equity 7, 
Section 118(a), the term ``Consolidated Volume'' means the total 
consolidated volume reported to all consolidated transaction reporting 
plans by all exchanges and trade reporting facilities during a month in 
equity securities, excluding executed orders with a size of less than 
one round lot. For purposes of calculating Consolidated Volume and the 
extent of a member's trading activity, the following are excluded from 
both total Consolidated Volume and the member's trading activity: (1) 
the date of the annual reconstitution of the Russell Investments 
Indexes; (2) the dates on which stock options, stock index options, and 
stock index futures expire (i.e., the third Friday of March, June, 
September, and December); (3) the dates of the rebalance of the MSCI 
Equities Indexes (i.e., on a quarterly basis); (4) the dates of the 
rebalance of the S&P 400, S&P 500, and S&P 600 Indexes (i.e., on a 
quarterly basis); and (5) the date of the annual reconstitution of the 
Nasdaq-100 and Nasdaq Biotechnology Indexes.
    Section 118(a) also provides that, for purposes of calculating a 
member's qualifications for fees that pertain to providing liquidity 
set forth in this Section 118(a), the Exchange will calculate a 
member's volume and total Consolidated Volume twice. First, the 
Exchange will calculate a member's volume and total Consolidated Volume 
inclusive of volume that consists of executions in securities priced 
less than $1. Second, the Exchange will calculate a member's volume and 
total Consolidated Volume exclusive of volume that consists of 
executions in securities priced less than $1, while also increasing the 
distinct qualifying volume percentage thresholds, as set forth in this 
Section 118(a), by 10%. The Exchange will then assess which of these 
two calculations would qualify the member for the most advantageous 
fees for the month and then it will apply those to the member. With 
this proposal, the Exchange proposes to extend such calculations of 
volume and Consolidated Volume for purposes of determining whether a 
member qualifies for discounts to fees set forth in Equity 7, Section 
118(f) that pertain to providing liquidity. To effectuate this change, 
the Exchange proposes to modify Equity 7, Section 118(a) by adding 
Section 118(f) in the description of the applicability of such 
calculations. The revised sentence would state, ``For purposes of 
calculating a member's qualifications for fees that pertain to 
providing liquidity set forth in Section 118(a) and Section 118(f), the 
Exchange will calculate a member's volume and total Consolidated Volume 
twice.'' In addition, to effectuate the change, the Exchange proposes 
to remove the reference to Section 118(a) in the following language: 
``while also increasing the distinct qualifying volume percentage 
thresholds, as set forth in this Section 118(a), by 10%.'' The Exchange 
proposes to remove such reference to Section 118(a) because the 
language is no longer only applicable to Section 118(a). The Exchange 
believes that it is unnecessary to point to the relevant sections for 
the distinct qualifying volume percentage thresholds as it is implied 
that the applicable percentage thresholds are in the same sections 
where the applicable fees or fee discounts are found (i.e., either in 
Section 118(a) or Section 118(f), as applicable). Lastly, the Exchange 
proposes to specify that the two calculations would be assessed to 
determine the most advantageous fees or discounts to fees.
    Generally, the ratio of consolidated volumes in securities priced 
at or above $1 (``dollar plus volume'') relative to consolidated 
volumes inclusive of securities priced below a dollar is usually stable 
from month to month, such that ``Consolidated Volume'' has been a 
reasonable baseline for determining tiered incentives for members that 
execute dollar plus volume on the Exchange. However, there have been a 
few months where volumes in securities priced below a dollar (``sub-
dollar volume'') have been elevated, thereby impacting the ratio 
mentioned above.
    Anomalous rises in sub-dollar volume stand to have a material 
adverse impact on members' qualifications for pricing tiers/incentives 
because such qualifications depend members upon achieving threshold 
percentages of volumes as a percentage of Consolidated Volume, and an 
extraordinary rise in sub-dollar volume stands to elevate Consolidated 
Volume. As a result, members may find it more difficult, if not 
practically impossible, to qualify for or to continue to qualify for 
their existing pricing incentives during months where there are such 
rises in sub-dollar volumes, even if their dollar plus volumes have not 
diminished relative to prior months.
    The Exchange believes that it would be unfair for its members that 
execute significant dollar plus volumes on the Exchange to fail to 
achieve or to lose their existing pricing incentives for such volumes 
due to anomalous behavior that is extraneous to them. Therefore, the 
Exchange wishes to amend its Rules to help avoid extraordinary spikes 
in sub-dollar volumes from adversely affecting a member's qualification 
of pricing incentives for their dollar plus stock executions.
    Although the Exchange wishes to avoid extraordinary spikes in sub-
dollar volumes from adversely affecting a member's qualification of 
pricing incentives for their dollar plus stock executions, the Exchange 
proposes to include certain limits on the proposal to efficiently 
allocate the Exchange's limited resources for pricing tiers/incentives. 
Specifically, as noted above, the Exchange proposes to apply the 
calculation excluding sub-dollar volumes to those incentives in Section 
118(f) that pertain to providing liquidity. In addition, as noted 
above, the Exchange proposes to increase the distinct qualifying volume 
percentage thresholds set forth in Section 118(f) by 10% for purposes 
of the proposed calculation excluding sub-dollar volumes.\3\ The 
Exchange wishes to

[[Page 58818]]

impose such limitations in order to limit the cost impact on the 
Exchange, while still providing some relief to members in months with 
extraordinary spikes in sub-dollar volumes. The Exchange has limited 
resources to devote to incentive programs, and it is appropriate for 
the Exchange to reallocate these incentives periodically in a manner 
that best achieves the Exchange's overall mix of objectives.
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    \3\ For example, to the extent that the Exchange designates a 
member to be a QMM because it quotes at the NBBO at least 10% of the 
time during Market Hours in an average of at least 325 securities 
per day during a month and provides add volume of at least 0.07% of 
total Consolidated Volume during a month, then the Exchange will 
provide the QMM with a discount of $0.0001 per share executed with 
respect to the fees that the QMM otherwise incurs, pursuant to 
Section 118(a), for entering displayed orders in securities priced 
at $1 or more that provide liquidity to the Exchange. See Equity 7, 
Section 118(f)(2)(i). Under the proposal, in addition to calculating 
the member's volume and total Consolidated Volume exclusive of 
volume that consists of executions in securities priced less than 
$1, the distinct qualifying volume percentage threshold would be 
increased by 10%. Therefore, for purposes of this example, in order 
to qualify for the fee discounts using volumes excluding sub-dollar 
activity, the member would need to provide add volume of at least 
0.077% of total Consolidated Volume during a month (i.e., 0.07% + 
(10%)(0.07%)).
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\4\ in general, and furthers the objectives of Sections 
6(b)(4) and 6(b)(5) of the Act,\5\ in particular, in that it provides 
for the equitable allocation of reasonable dues, fees and other charges 
among members and issuers and other persons using any facility, and is 
not designed to permit unfair discrimination between customers, 
issuers, brokers, or dealers.
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    \4\ 15 U.S.C. 78f(b).
    \5\ 15 U.S.C. 78f(b)(4) and (5).
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    The Exchange's proposed changes to its pricing schedule are 
reasonable in several respects. As a threshold matter, the Exchange is 
subject to significant competitive forces in the market for equity 
securities transaction services that constrain its pricing 
determinations in that market. The fact that this market is competitive 
has long been recognized by the courts. In NetCoalition v. Securities 
and Exchange Commission, the D.C. Circuit stated as follows: ``[n]o one 
disputes that competition for order flow is `fierce.' . . . As the SEC 
explained, `[i]n the U.S. national market system, buyers and sellers of 
securities, and the broker-dealers that act as their order-routing 
agents, have a wide range of choices of where to route orders for 
execution'; [and] `no exchange can afford to take its market share 
percentages for granted' because `no exchange possesses a monopoly, 
regulatory or otherwise, in the execution of order flow from broker 
dealers'. . . .'' \6\
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    \6\ NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. Cir. 2010) 
(quoting Securities Exchange Act Release No. 59039 (December 2, 
2008), 73 FR 74770, 74782-83 (December 9, 2008) (SR-NYSEArca-2006-
21)).
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    The Commission and the courts have repeatedly expressed their 
preference for competition over regulatory intervention in determining 
prices, products, and services in the securities markets. In Regulation 
NMS, while adopting a series of steps to improve the current market 
model, the Commission highlighted the importance of market forces in 
determining prices and SRO revenues and, also, recognized that current 
regulation of the market system ``has been remarkably successful in 
promoting market competition in its broader forms that are most 
important to investors and listed companies.'' \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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    Numerous indicia demonstrate the competitive nature of this market. 
For example, clear substitutes to the Exchange exist in the market for 
equity security transaction services. The Exchange is only one of 
several equity venues to which market participants may direct their 
order flow. Competing equity exchanges offer similar tiered pricing 
structures and market quality programs to that of the Exchange, 
including schedules of rebates and fees that apply based upon members 
achieving certain volume thresholds.
    Within this environment, market participants can freely and often 
do shift their order flow among the Exchange and competing venues in 
response to changes in their respective pricing schedules.
    The Exchange believes that the proposal is reasonable and equitable 
because, in its absence, members may experience material adverse 
impacts on their ability to qualify for certain incentives during a 
month with an anomalous rise in sub-dollar volumes. The Exchange does 
not wish to penalize members that execute significant volumes on the 
Exchange due to anomalous and extraneous trading activities of a small 
number of firms in sub-dollar securities. The proposed rule would seek 
to provide a means for members that provide liquidity to avoid such a 
penalty by determining whether calculating member volume and total 
Consolidated Volume to include or exclude sub-dollar volume \8\ would 
result in Exchange members qualifying for the most advantageous 
charges, and then applying the calculations that would result in the 
incentives for providing liquidity that are most advantageous to each 
member. The Exchange believes it is reasonable to limit the proposal by 
applying the proposed calculation to incentives that pertain to 
providing liquidity set forth in Equity 7, Section 118(f) and 
increasing the distinct qualifying volume percentage thresholds by 10% 
when using the proposed calculation excluding sub-dollar volumes 
because the Exchange has limited resources to devote to incentive 
programs, and it is appropriate for the Exchange to reallocate these 
incentives periodically in a manner that best achieves the Exchange's 
overall mix of objectives. The Exchange believes that the proposed rule 
change is an equitable allocation and is not unfairly discriminatory 
because the Exchange does not intend for the proposal to advantage any 
particular member and the Exchange will apply the proposed calculation 
to all similarly situated members.
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    \8\ As noted above, in considering whether a member meets 
qualifying incentive criteria using the proposed calculation 
excluding sub-dollar volumes, the distinct qualifying volume 
percentage thresholds would be increased by 10%.
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    Those participants that are dissatisfied with the changes to the 
Exchange's pricing schedule are free to shift their order flow to 
competing venues that provide more favorable fees or generous 
incentives.

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

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act.
Intramarket Competition
    The Exchange does not believe that its proposal will place any 
category of Exchange participant at a competitive disadvantage.
    The Exchange intends for its proposal to help avoid pricing 
disadvantages due to anomalous spikes in sub-dollar volumes and is not 
intended to provide a competitive advantage to any particular member. 
The Exchange also intends for its proposal to reallocate its limited 
resources more efficiently and to align them with the Exchange's 
overall mix of objectives. The Exchange notes that its members are free 
to trade on other venues to the extent they believe that the proposal 
is not attractive. As one can observe by looking at any market share 
chart, price competition between exchanges is fierce, with liquidity 
and market share moving freely between exchanges in reaction to fee and 
credit changes.
Intermarket Competition
    In terms of inter-market competition, the Exchange notes that it 
operates in a

[[Page 58819]]

highly competitive market in which market participants can readily 
favor competing venues if they deem fee levels at a particular venue to 
be excessive, or rebate opportunities available at other venues to be 
more favorable. In such an environment, the Exchange must continually 
adjust its credits and fees to remain competitive with other exchanges 
and with alternative trading systems that have been exempted from 
compliance with the statutory standards applicable to exchanges. 
Because competitors are free to modify their own credits and fees in 
response, and because market participants may readily adjust their 
order routing practices, the Exchange believes that the degree to which 
credit or fee changes in this market may impose any burden on 
competition is extremely limited. The proposal is reflective of this 
competition.
    Even the largest U.S. equities exchange by volume has less than 20% 
market share, which in most markets could hardly be categorized as 
having enough market power to burden competition. Moreover, as noted 
above, price competition between exchanges is fierce, with liquidity 
and market share moving freely between exchanges in reaction to fee and 
credit changes. This is in addition to free flow of order flow to and 
among off-exchange venues, which comprises upwards of 40% of industry 
volume.
    In sum, if the changes proposed herein are unattractive to market 
participants, it is likely that the Exchange will lose market share as 
a result. Accordingly, the Exchange does not believe that the proposed 
changes will impair the ability of members or competing order execution 
venues to maintain their competitive standing in the financial markets.

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

    No written comments were either solicited or received.

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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act.\9\
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    \9\ 15 U.S.C. 78s(b)(3)(A)(ii).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is: (i) 
necessary or appropriate in the public interest; (ii) for the 
protection of investors; or (iii) otherwise in furtherance of the 
purposes of the Act. If the Commission takes such action, the 
Commission shall institute proceedings to determine whether the 
proposed rule should be approved or disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
file number SR-BX-2024-022 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-BX-2024-022. 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 (https://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 
a.m. and 3 p.m. Copies of the filing also will be available for 
inspection and copying at the principal office of the Exchange. Do not 
include personal identifiable information in submissions; you should 
submit only information that you wish to make available publicly. We 
may redact in part or withhold entirely from publication submitted 
material that is obscene or subject to copyright protection. All 
submissions should refer to file number SR-BX-2024-022 and should be 
submitted on or before August 9, 2024.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\10\
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    \10\ 17 CFR 200.30-3(a)(12).
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J. Matther DeLesDernier,
Deputy Secretary.
[FR Doc. 2024-15911 Filed 7-18-24; 8:45 am]
BILLING CODE 8011-01-P