Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Options 7, Section 3

DATES:

Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”), and Rule 19b-4 thereunder, notice is hereby given that on July 1, 2024, The Nasdaq Stock Market LLC (“Nasdaq” or “Exchange”) filed with the Securities and Exchange Commission (“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.

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

The Exchange proposes to amend The Nasdaq Options Market LLC's (“NOM”) Rules at Options 7, Section 3, Nasdaq Options Market—Ports and Other Services.

The text of the proposed rule change is available on the Exchange's website at https://listingcenter.nasdaq.com/rulebook/nasdaq/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 Exchange proposes to amend Options 7, Section 3, Nasdaq Options Market—Ports and Other Services. Specifically, the Exchange proposes to amend Options 7, Section 3(i) to increase the per port, per month SQF Port and SQF Purge Port Fees for all ports over 20 ports (21 and above).

Today, NOM assesses SQF Ports and SQF Purge Ports a per port, per month fee based on a tiered fee schedule. Specifically, NOM assesses an SQF Port and an SQF Purge Port fee of $1,500 per port, per month for the first 5 ports (1-5), a $1,000 per port, per month fee for the next 15 ports (6-20), and a $750 per port, per month fee for all ports over 20 ports (21 and above).

At this time, the Exchange proposes to increase the per port, per month fee for SQF Ports and SQF Ports above 20 ports (21 and above) for Market Makers based on the size of the Market Maker on NOM. The Exchange is determining the size of the Market Maker based on the amount of transactional volume executed on NOM in a given month. The Exchange proposes to take each Market's Maker's electronic monthly transactional volume via SQF on NOM and divide that number by the sum of all Market Maker electronic monthly transactional volume via SQF on NOM (“Transactional Volume”). All SQF interest would be considered. Each Market Maker would then be classified on NOM, for the purpose of the SQF Port Fee and SQF Purge Port Fee, as a “small,” “medium,” or “large” Market Maker based on their Transactional Volume on NOM to determine the applicable fee in a given month for all SQF Ports and SQF Purge Ports over 20 ports. Market Makers that qualify as “medium” would be subject to an increased monthly fee of $625 per port for all SQF Ports and SQF Purge Ports over 20 ports. Market Makers that qualify as “large” would be subject to an increased monthly fee of $750 per port for all SQF Ports and SQF Purge Ports over 20 ports. Market Makers that qualify as “small” would continue to pay a monthly fee of $500 per port for all SQF Port and SQF Purge Port Fees for all ports over 20 ports.

The Exchange believes that these increased SQF Port and SQF Purge Port Fees for all ports over 20 ports for Market Maker that qualify as “medium” and “large,” will offer a level playing field related to pricing when acquiring a larger amount of ports.

A NOM Market Maker requires only one SQF Port to submit quotes in its assigned options series into NOM. A NOM Market Maker may submit all quotes through one SQF Port and utilize one SQF Purge Port to view its purge requests. While a NOM Market Maker may elect to obtain multiple SQF Ports and SQF Purge Ports to organize its business, only one SQF Port and SQF Purge Port is necessary for a NOM Market Maker to fulfill its regulatory quoting obligations.

2. Statutory Basis

The Exchange believes that its proposal is consistent with Section 6(b) of the Act, in general, and furthers the objectives of Sections 6(b)(4) and 6(b)(5) of the Act, 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.

The Exchange believes that increasing the fee for SQF Ports and SQF Purge Ports over 20 ports (21 and above) for Market Makers that qualify as “medium” from $500 to $625 per month, and to increase the SQF Port Fee and SQF Purge Port Fee Cap for Market Makers that qualify as “large” from $500 to $750 per month, is reasonable because these increased SQF Port and SQF Purge Port Fees for all ports over 20 ports for Market Maker that qualify as “medium” and “large” will offer a level playing field related to pricing when acquiring a larger amount of ports. A NOM Market Maker requires only one SQF Port to submit quotes in its assigned options series into NOM. A NOM Market Maker may submit all quotes through one SQF Port and utilize one SQF Purge Port to view its purge requests. While a Market Maker may elect to obtain multiple SQF Ports and SQF Purge Ports to organize its business, only one SQF Port and SQF Purge Port is necessary for a Market Maker to fulfill its regulatory quoting obligations. Members may choose a greater number of SQF Ports or SQF Purge Ports, beyond one port, depending on that Member's particular business model. Additionally, the Exchange believes that the caps are reasonable for two reasons.

First, SQF Ports are a secure method for Market Makers to submit quotes into the Exchange's match engine and for the Exchange to send messages related to those quotes to Market Makers. NOM must manage the security and message traffic, among other things, for each port. Utilizing a methodology based on the “size” of the Market Maker as determined by Transactional Volume, provides every Market Maker the ability to manage cost. Additionally, the Exchange would have the ability to manage the quantity of SQF Ports and SQF Purge Ports issued by the Exchange. The various SQF Port and SQF Purge Port Fees were determined based on the level of Transactional Volume on NOM in 2024 for Market Makers. The Exchange assessed each level of Market Maker an increased fee based on size, as reflected by Transactional Volume, to reflect the various sizes of Market Makers present on the Exchange at this time. By establishing different SQF Ports and SQF Purge Port Fees at different levels based on “size,” the Exchange is considering the message traffic and message rates generated by the various “sizes” of Market Makers and the Exchange's ability to process messages from all SQF Ports and SQF Purge Ports. The SQF Port and SQF Purge Port Fees would allow the Exchange to scale its needs with respect to processing messages in an efficient manner. The Exchange notes that Cboe Exchange, Inc. (“Cboe”) limits usage on each port and assesses fees for incremental usage.

Second, the Exchange notes that multiple ports are not necessary, however, to the extent that some Market Makers elect to obtain multiple SQF Ports and SQF Purge Ports, the Exchange is offering different prices for over 20 ports. NOM believes that this methodology of utilizing Transactional Volume on NOM for purposes of considering the “size” of the Market Maker to create certain SQF Port and SQF Purge Port Fees will level the playing field. The Exchange believes that this approach enables various types of Market Makers to effectively limit costs based on their executed Transactional Volume on the Exchange. Further, this methodology allows for efficiencies and permits Market Makers to increase their number of ports at varying fee levels. The various SQF Ports and SQF Purge Port Fees for over 20 ports levels the playing field by allowing various types of Market Makers that want to obtain a larger number of ports to do so with different cost structures to account for their relative size. Other markets tier port fees. BOX Exchange LLC (“BOX”) assesses $1,000 per month for all SAIL Ports for Market Making and $500 per month per port up to 5 ports for order entry and $150 per month for each additional port. Miami International Securities Exchange, LLC's (“MIAX”) MIAX Express Interface (“MEI”) Fee levels are based on a tiered fee structure based on the Market Maker's total monthly executed volume during the relevant month.

The Exchange believes that increasing the fee for SQF Ports and SQF Purge Ports over 20 ports (21 and above) for Market Makers that qualify as “medium” from $500 to $625 per month, and to increase the SQF Port Fee and SQF Purge Port Fee Cap for Market Makers that qualify as “large” from $500 to $750 per month, is equitable and not unfairly discriminatory because the Exchange is offering different sizes of Market Makers, based on Transactional Volume executed on the Exchange, the ability pay different fees for some SQF Ports and SQF Purge Ports above 20 ports. The proposal recognizes that some Market Makers may be deemed “small” and may not be able to achieve the same cap as other Market Makers. To this end, the Exchange proposes not to increase SQF Port and SQF Purge Port Fees for over 20 ports for Market Makers that qualify as “small.” To the extent that a Market Maker qualifies in a given month as a “medium” Market Maker the Exchange proposes to increase SQF Port and SQF Purge Port Fees from $500 to $625 per month. This fee presumes to place a Market Maker that qualifies as “medium” on equal footing with a Market Maker that qualifies as a “small” Market Maker in terms of the fee, by setting different fees for each group. The proposal presumes that based on Transactional Volume, these Market Makers that qualify as “medium” have a greater ability to obtain a greater amount of SQF Ports and SQF Purge Ports as compared to Market Makers that qualify as “small.” Finally, to the extent that a Market Maker qualifies in a given month as a “large” Market Maker the Exchange proposes to increase SQF Port and SQF Purge Port Fees from $500 to $750 per month. This fee presumes to place a Market Maker that qualifies as “large” on equal footing with a Market Maker that qualifies as a “small” Market Maker, and a Market Maker that qualifies as “medium” in terms of the fee, by setting different fees for each group. The proposal presumes that based on Transactional Volume these Market Makers that qualify as “large” have the ability to obtain the largest amount of SQF Ports and SQF Purge Ports. The Exchange would uniformly apply the appropriate SQF Port and SQF Purge Port Fee to each Market Maker group based on the same volume calculation. Also, Market Makers would uniformly be assessed fees for SQF Ports and SQF Purge Ports based on the proposed methodology.

NOM Market Makers are the only market participants that are assessed SQF Port and SQF Purge Port fees because they are the only market participants that are permitted to quote on the Exchange. SQF Ports and SQF Purge Ports are only utilized in the Market Maker's assigned options series. Unlike other market participants, NOM Market Makers are subject to market making and quoting obligations. These liquidity providers are critical market participants in that they are the only market participants that provide liquidity to NOM on a continuous basis. Providing NOM Market Makers a means to manage their cost by applying different fees for SQF Ports and SQF Purge Ports beyond 20 ports enables these market participants to provide the necessary liquidity to NOM at lower costs relative to their size. Therefore, because NOM Market Makers fulfill a unique role on the Exchange, are the only market participant required to submit quotes as part of their obligations to operate on the Exchange, and, in light of that role, they are eligible for certain incentives. The proposed SQF Port and SQF Purge Fee cap is designed to continue to incent NOM Market Makers to quote on NOM, thereby promoting liquidity, quote competition, and trading opportunities.

In 2022, NYSE Arca, Inc. (“NYSE Arca”) proposed to restructure fees relating to OTPs for Market Makers. In that rule change, NYSE Arca argued that,

Market Makers serve a unique and important function on the Exchange (and other options exchanges) given the quote-driven nature of options markets. Because options exchanges rely on actively quoting Market Makers to facilitate a robust marketplace that attracts order flow, options exchanges must attract and retain Market Makers, including by setting competitive Market Maker permit fees. Stated otherwise, changes to Market Maker permit fees can have a direct effect on the ability of an exchange to compete for order flow. The Exchange also believes that the number of options exchanges on which Market Makers can effect option transactions also ensures competition in the marketplace and constrains the ability of exchanges to charge supracompetitive fees for access to its market by Market Makers.

Further, NYSE ARCA noted that,

The Exchange further believes that its ability to set Market Maker permit fees is constrained by competitive forces based on the fact that Market Makers can, and have, chosen to terminate their status as a Market Maker if they deem Market Maker permit fees to be unreasonable or excessive. Specifically, the Exchange notes that a BOX participant modified its access to BOX in connection with the implementation of a proposed change to BOX's Market Maker permit fees. The Exchange has also observed that another options exchange group experienced decreases in market share following its proposed modifications of its access fees (including Market Maker trading permit fees), suggesting that market participants (including Market Makers) are sensitive to changes in exchanges' access fees and may respond by shifting their order flow elsewhere if they deem the fees to be unreasonable or excessive.

There is no requirement, regulatory or otherwise, that any Market Maker connect to and access any (or all of) the available options exchanges. The Exchange also is not aware of any reason why a Market Maker could not cease being a permit holder in response to unreasonable price increases. The Exchange does not assess any termination fee for a Market Maker to drop its OTP, nor is the Exchange aware of any other costs that would be incurred by a Market Maker to do so.

The Exchange likewise believes that its lower SQF Ports and SQF Purge Port monthly fees beyond 20 ports is constrained by competitive forces and that its proposed modifications to the SQF Port and SQF Purge Fees is reasonably designed in consideration of the competitive environment in which the Exchange operates, by balancing the value of the enhanced benefits available to Market Makers due to the current level of activity on the Exchange with a fee structure that will continue to incent Market Makers to support increased liquidity, quote competition, and trading opportunities on the Exchange, for the benefit of all market participants.

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.

Intermarket Competition

The proposal does not impose an undue burden on intermarket competition. The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.

Intramarket Competition

The Exchange believes that increasing the fee for SQF Ports and SQF Purge Ports over 20 ports (21 and above) for Market Makers that qualify as “medium” from $500 to $625 per month, and to increase the SQF Port Fee and SQF Purge Port Fee Cap for Market Makers that qualify as “large” from $500 to $750 per month, does not impose an undue burden on competition because the Exchange is offering different sizes of Market Makers, based on Transactional Volume executed on the Exchange, the ability pay different fees for some SQF Ports and SQF Purge Ports above 20 ports. The proposal recognizes that some Market Makers may be deemed “small” and may not be able to achieve the same cap as other Market Makers. To this end, the Exchange proposes not to increase SQF Port and SQF Purge Port Fees for over 20 ports for Market Makers that qualify as “small.” To the extent that a Market Maker qualifies in a given month as a “medium” Market Maker the Exchange proposes to increase SQF Port and SQF Purge Port Fees from $500 to $625 per month. This fee presumes to place a Market Maker that qualifies as “medium” on equal footing with a Market Maker that qualifies as a “small” Market Maker in terms of the fee, by setting different fees for each group. The proposal presumes that based on Transactional Volume, these Market Makers that qualify as “medium” have a greater ability to obtain a greater amount of SQF Ports and SQF Purge Ports as compared to Market Makers that qualify as “small.” Finally, to the extent that a Market Maker qualifies in a given month as a “large” Market Maker the Exchange proposes to increase SQF Port and SQF Purge Port Fees from $500 to $750 per month. This fee presumes to place a Market Maker that qualifies as “large” on equal footing with a Market Maker that qualifies as a “small” Market Maker, and a Market Maker that qualifies as “medium” in terms of the fee, by setting different fees for each group. The proposal presumes that based on Transactional Volume these Market Makers that qualify as “large” have the ability to obtain the largest amount of SQF Ports and SQF Purge Ports. The Exchange would uniformly apply the appropriate SQF Port and SQF Purge Port Fee to each Market Maker group based on the same volume calculation. Also, Market Makers would uniformly be assessed fees for SQF Ports and SQF Purge Ports based on the proposed methodology.

NOM Market Makers are the only market participants that are assessed SQF Port and SQF Purge Port fees because they are the only market participants that are permitted to quote on the Exchange. SQF Ports and SQF Purge Ports are only utilized in the Market Maker's assigned options series. Unlike other market participants, NOM Market Makers are subject to market making and quoting obligations. These liquidity providers are critical market participants in that they are the only market participants that provide liquidity to NOM on a continuous basis. Providing NOM Market Makers a means to manage their cost by applying different fees for SQF Ports and SQF Purge Ports beyond 20 ports enables these market participants to provide the necessary liquidity to NOM at lower costs relative to their size. Therefore, because NOM Market Makers fulfill a unique role on the Exchange, are the only market participant required to submit quotes as part of their obligations to operate on the Exchange, and, in light of that role, they are eligible for certain incentives. The proposed SQF Port and SQF Purge Fee cap is designed to continue to incent NOM Market Makers to quote on NOM, thereby promoting liquidity, quote competition, and trading opportunities.

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.

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 torule-comments@sec.gov. Please include file number SR-NASDAQ-2024-036 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-2024-036. 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-NASDAQ-2024-036 and should be submitted on or before August 6, 2024.