[Federal Register Volume 78, Number 58 (Tuesday, March 26, 2013)]
[Notices]
[Pages 18393-18402]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-06882]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-69195; File No. SR-NASDAQ-2012-137]
Self-Regulatory Organizations; the NASDAQ Stock Market LLC; Order
Granting Approval of a Proposed Rule Change, as Modified by Amendment
Nos. 1 and 3 Thereto, To Establish the Market Quality Program
March 20, 2013.
On December 7, 2012, The NASDAQ Stock Market LLC (``Exchange'' or
``NASDAQ'') filed with the Securities and Exchange Commission (``SEC''
or ``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'' or ``Exchange Act'') \1\ and Rule 19b-4
thereunder,\2\ a proposed rule change to establish the Market Quality
Program (``MQP'' or ``Program'') on a pilot basis.\3\ On December 20,
2012, the
[[Page 18394]]
Exchange submitted Amendment No. 1 to the proposed rule change, which
replaced and superseded the proposed rule change in its entirety. The
proposed rule change, as modified by Amendment No. 1 thereto, was
published for comment in the Federal Register on December 31, 2012.\4\
The Commission initially received two comment letters on the proposed
rule change.\5\ On February 7, 2013, the Exchange submitted Amendment
No. 2 to the proposed rule change. On February 8, 2013, the Exchange
withdrew Amendment No. 2 and filed Amendment No. 3 to the proposed rule
change.\6\ On February 14, 2013, the Commission extended the time
period during which it must approve the proposed rule change,
disapprove the proposed rule change, or institute proceedings to
determine whether to disapprove the proposed rule change, to March 31,
2013.\7\ The Commission subsequently received one additional comment
letter on the proposed rule change.\8\ This order grants approval of
the proposed rule change, as modified by Amendment Nos. 1 and 3.\9\
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19-4.
\3\ The Exchange states that SR-NASDAQ-2012-137 replaces SR-
NASDAQ-2012-043, which was withdrawn by the Exchange. See Securities
Exchange Act Release Nos. 66765 (Apr. 6, 2012), 77 FR 22042 (Apr.
12, 2012) (SR-NASDAQ-2012-043) and 68378 (Dec. 6, 2012), 77 FR 74042
(Dec. 12, 2012). See also Notice, infra note 4, at 77141, n.3.
\4\ Securities Exchange Act Release No. 68515 (Dec. 21, 2012),
77 FR 77141 (Dec. 31, 2012) (``Notice'').
\5\ See Letter From Rey Ramsey, President & CEO, TechNet, dated
Jan. 22, 2013 (``TechNet Letter'') and Letter From Daniel G. Weaver,
Ph.D., Professor of Finance, Rutgers Business School, dated Jan. 30,
2013 (``Weaver Letter'').
\6\ The Exchange withdrew Amendment No. 2 due to a technical
error in the amendment. In Amendment No. 3, the Exchange clarified
that: (i) The Exchange may limit on a Program-wide basis the number
of Exchange-Traded Funds (``ETFs'') per MQP Company that can
participate in the MQP, and that the Exchange would not be limiting
the number of actual shares issued by an MQP Company for a
particular ETF participating in the Program; (ii) the Exchange will
provide in the monthly public report to the Commission relating to
the MQP (a) information on the market quality of MQP Securities
after they exceed the threshold and ``graduate'' from the Program
pursuant to proposed Rule 5950(d)(1)(A), and (b) its analysis of the
information to be included in the report and its assessment of the
efficacy of the MQP; and (iii) the Exchange will provide to the
Commission data and analyses about comparable ETFs that are listed
on the Exchange but that are not in the MQP, as well as any other
MQP-related data and analyses requested by Commission staff for the
purpose of evaluating the efficacy of the MQP. Amendment No. 3
provides clarification to the proposed rule change, and because it
does not materially affect the substance of the proposed rule
change, Amendment No. 3 does not require notice and comment.
\7\ See Securities Exchange Act Release No. 68925 (Feb. 14,
2013), 78 FR 12116 (Feb. 21, 2013).
\8\ See Letter from Albert J. Menkveld, Associate Professor of
Finance, VU University Amsterdam, dated Feb. 18, 2013 (``Menkveld
Letter'').
\9\ Today the Commission also is granting exemptive relief from
Rule 102 under Regulation M concerning the MQP. See Securities
Exchange Act Release No. 69196 (March 20, 2013) (Order Granting a
Limited Exemption from Rule 102 of Regulation M Concerning the
NASDAQ Stock Market LLC Stock's Market Quality Program Pilot
Pursuant to Regulation M Rule 102(e)).
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I. Description of the Proposal
As set forth in more detail in the Notice,\10\ the Exchange is
proposing to amend its rules to add NASDAQ Rule 5950 (Market Quality
Program) to establish an MQP listing fee and related market maker
incentive program, and to adopt interpretation IM-2460-1 to exempt the
MQP from NASDAQ Rule 2460 (Payment for Market Making), on a pilot
basis. The MQP will be a voluntary program, and participation in the
program will be at the discretion of each MQP Company (as defined
below), subject to the requirements set forth in the proposed rule.
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\10\ See Notice, supra note 4.
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A. Proposed NASDAQ Rule 5950 (Market Quality Program)
The Exchange states that the proposed MQP is a voluntary program
designed to promote market quality in certain securities listed on the
Exchange (``MQP Securities'').\11\ MQP Securities will consist of ETF
securities issued by an MQP Company \12\ and listed on the Exchange
pursuant to NASDAQ Rule 5705.\13\ In addition to the standard (non-MQP)
Exchange listing fee applicable to an MQP Security set forth in the
NASDAQ Rule 5000 Series (consisting of NASDAQ Rules 5000-5999), an MQP
Company may incur a fee (``MQP Fee''), on behalf of an MQP Security, to
participate in the Program.\14\ The Exchange represents that an MQP Fee
will be used for the purpose of incentivizing one or more Market Makers
\15\ in the MQP Security (``MQP Market Maker'') to enhance the market
quality of the MQP Security.\16\ Subject to the conditions set forth in
the proposed rule, this incentive payment will be credited (``MQP
Credit'') to one or more MQP Market Makers that make a high-quality
market in the MQP Security pursuant to the MQP.\17\
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\11\ See proposed Rule 5950 Preamble.
\12\ The term ``MQP Company'' means the trust or company housing
the ETF or, if the ETF is not a series of a trust or company, then
the ETF itself. See proposed Rule 5950(e)(5).
\13\ See proposed Rule 5950(e)(1) (defining the term ``MQP
Security'' to mean an ETF security issued by an MQP Company that
meets all of the requirements to be listed on the Exchange pursuant
to Rule 5705). The term ``Exchange Traded Fund'' includes Portfolio
Depository Receipts and Index Fund Shares, which are defined in
NASDAQ Rule 5705. See proposed Rule 5950(e)(2).
\14\ See proposed Rules 5950 Preamble and 5950(b)(2). MQP Fees
for MQP Securities will be paid by the Sponsors associated with the
MQP Companies. See proposed Rule 5950(e)(5). See also proposed Rule
5950(b)(2)(C)(i) (requiring that the MQP Fee in respect of an ETF be
paid by the Sponsor(s) of the ETF). The term ``Sponsor'' means the
registered investment adviser that provides investment management
services to an MQP Company or any of the adviser's parents or
subsidiaries. See proposed Rule 5950(e)(5).
\15\ The term ``Market Maker'' has the meaning given in NASDAQ
Rule 5005(a)(24). See proposed Rule 5950(e)(3).
\16\ See proposed Rule 5950 Preamble.
\17\ See proposed Rule 5950 Preamble. The MQP Credit will be
paid to eligible MQP Market Maker(s) based on quoting and trading
activity in the MQP Security, as discussed in further detail below.
See infra notes 47-55 and accompanying text.
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1. Application and Withdrawal
An MQP Company that wants to have its MQP Security participate in
the MQP, and a Market Maker that wants to participate in the MQP, will
each be required to submit an application in the form prescribed by the
Exchange.\18\ The Exchange can, on a program-wide basis, limit the
number of MQP Securities that any one MQP Company may have in the
MQP.\19\ In determining whether to limit the number of MQP Securities
per MQP Company, the Exchange will consider all relevant information,
including whether a restriction, if any, is consistent with the goals
of the MQP and in the best interest of the Exchange, the MQP Company,
and investors.\20\ The Exchange can also, on a program-wide basis,
limit the number of MQP Market Makers permitted to register in an MQP
Security.\21\ If such a limit is established, the Exchange will
allocate available MQP Market Maker registrations in a first-come-
first-served fashion based on successful completion of an MQP Market
Maker application.\22\
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\18\ See proposed Rule 5950(a)(1).
\19\ See proposed Rule 5950(a)(1)(A). The Exchange clarified
that this provision is intended to allow the Exchange, on a Program-
wide basis, to limit the number of ETFs that any one MQP Company may
have in the MQP, and that this provision would not allow the
Exchange to limit the number of actual shares issued by any MQP
Company for a particular ETF participating in the MQP. See Amendment
No. 3, supra note 6.
\20\ See proposed Rule 5950(a)(1)(B). Factors that could be
considered by the Exchange include, but are not limited to, the
current and expected liquidity characteristics of MQP Securities;
the projected initial and continuing market quality needs of MQP
Securities; and the trading characteristics of MQP Securities (e.g.,
quoting, trading, and volume). See proposed Rule 5950(a)(1)(B)(i).
\21\ See proposed Rule 5950(c)(3).
\22\ See proposed Rule 5950(c)(3)(A).
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The Exchange will provide notification on its Web site regarding:
(i) The acceptance of an MQP Company (on behalf of an MQP Security) and
an MQP Market Maker into the MQP; (ii) the total number of MQP
Securities that any one MQP Company may have in the MQP; (iii) the
names of MQP Securities and the MQP Market Maker(s) in each MQP
Security, and the dates that an MQP Company, on behalf of an MQP
Security, commenced participation in and withdrew or was terminated
from
[[Page 18395]]
the MQP; and (iv) any limit on the number of MQP Market Makers
permitted to register in an MQP Security.\23\
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\23\ See proposed Rule 5950(a)(1)(C) and proposed Rule
5950(c)(3). The Exchange also will include on its Web site a
statement about the MQP that sets forth a general description of the
MQP as implemented on a pilot basis and a fair and balanced
summation of the potentially positive aspects of the MQP (e.g.,
enhancement of liquidity and market quality in MQP Securities) as
well as the potentially negative aspects and risks of the MQP (e.g.,
possible lack of liquidity and negative price impact on MQP
Securities that withdraw or are terminated from the MQP), and
indicates how interested parties can get additional information
about products in the MQP. See proposed Rule 5950(a)(1)(C)(iv).
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After an MQP Company, on behalf of an MQP Security, has been in the
MQP for not less than two consecutive quarters but less than one year,
it can voluntarily withdraw from the MQP on a quarterly basis.\24\ An
MQP Company seeking to withdraw from the MQP must notify the Exchange
in writing not less than one month prior to withdrawing from the MQP.
The Exchange can determine to allow an MQP Company to withdraw from the
MQP earlier.\25\ In making this determination, the Exchange may take
into account the volume and price movements in the MQP Security; the
liquidity, size quoted, and quality of the market in the MQP Security;
and any other relevant factors.\26\ After an MQP Company, on behalf of
an MQP Security, has been in the MQP for one year or more, it can
voluntarily withdraw from the MQP on a monthly basis, provided that it
has notified the Exchange in writing not less than one month prior to
withdrawing from the MQP.\27\ After an MQP Company, on behalf of an MQP
Security, has been in the MQP for one year, the MQP and all obligations
and requirements of the MQP will automatically continue on an annual
basis, unless: (a) The Exchange terminates the MQP by providing not
less than one month prior notice of intent to terminate; (b) the MQP
Company, on behalf of an MQP Security, withdraws from the MQP pursuant
to the proposed rule; (c) the MQP Company is terminated from the MQP
pursuant to proposed Rule 5950(d); \28\ or (d) the pilot Program is not
extended or made permanent pursuant to a proposed rule change approved
by the Commission under Section 19(b) \29\ of the Exchange Act.\30\
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\24\ See proposed Rule 5950(a)(2)(A).
\25\ Id.
\26\ Id.
\27\ See proposed Rule 5950(a)(2)(B).
\28\ Proposed Rule 5950(d) states, in part, that the MQP will
terminate in respect of an MQP Security under the following
circumstances: (A) An MQP Security sustains an average daily trading
volume (consolidated trades in all U.S. Markets) of one million
shares or more for three consecutive months; (B) an MQP Company, on
behalf of an MQP Security, withdraws from the MQP, is no longer
eligible to be in the MQP pursuant to the proposed rule, or its
Sponsor ceases to make MQP Fee payments to the Exchange; (C) an MQP
Security is delisted or is no longer eligible for the MQP; (D) an
MQP Security does not have at least one MQP Market Maker for more
than one quarter; or (E) an MQP Security does not, for two
consecutive quarters, have at least one MQP Market Maker that is
eligible for the MQP Credit.
\29\ 15 U.S.C. 78s(b).
\30\ See proposed Rule 5950(a)(3).
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After an MQP Market Maker has been in the MQP for not less than one
quarter, the MQP Market Maker can withdraw from the MQP on a quarterly
basis. The MQP Market Maker must notify the Exchange in writing one
month prior to withdrawing from the MQP.\31\
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\31\ See proposed Rule 5950(a)(2)(C).
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The Exchange will provide notification on its Web site when it
receives notification that an MQP Company, on behalf of an MQP
Security, or an MQP Market Maker intends to withdraw from the MQP,
including the date of actual withdrawal or termination from the
MQP.\32\
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\32\ See proposed Rule 5950(a)(2)(D).
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2. MQP Company Eligibility and Fee Liability
For an MQP Company, on behalf of an MQP Security, to be eligible to
participate in the MQP, the following conditions must be satisfied: (i)
The Exchange must have accepted the MQP Company's application in
respect of the MQP Security and must have accepted the application of
at least one MQP Market Maker in the same MQP Security; (ii) the MQP
Security must meet all requirements to be listed on the Exchange as an
ETF; (iii) the MQP Security must meet all Exchange requirements for
continued listing at all times the MQP Security is in the MQP; and (iv)
while an MQP Company lists an MQP Security, the MQP Company must, on a
product-specific Web site for each product, indicate that the product
is in the MQP and provide the link to the Exchange's MQP Web site.\33\
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\33\ See proposed Rule 5950(b)(1).
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An MQP Company participating in the MQP will incur an annual basic
MQP Fee of $50,000 per MQP Security (``Basic MQP Fee''), which must be
paid to the Exchange prospectively each quarter.\34\ An MQP Company may
also, on an annual basis, voluntarily select to incur an annual
supplemental MQP Fee per MQP Security (``Supplemental MQP Fee''), which
must be paid to the Exchange prospectively each quarter.\35\ The Basic
MQP Fee and Supplemental MQP Fee cannot exceed $100,000 per year when
combined.\36\ The amount of the Supplemental MQP Fee, if any, for each
MQP Security will be determined by the MQP Company initially and will
remain the same for one year.\37\ The Exchange will provide
notification on its Web site regarding the amount, if any, of any
Supplemental MQP Fee determined by an MQP Company per MQP Security.\38\
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\34\ See proposed Rule 5950(b)(2)(A). MQP Fees for MQP
Securities will be paid by the Sponsors associated with the MQP
Companies. See supra note 14.
\35\ See proposed Rule 5950(b)(2)(B). As noted above, MQP Fees
for MQP Securities will be paid by the Sponsors associated with the
MQP Companies. See supra notes 14 and 34.
\36\ Id.
\37\ See proposed Rule 5950(b)(2)(B)(i).
\38\ See proposed Rule 5950(b)(2)(B)(ii).
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The Basic MQP Fee and Supplemental MQP Fee, if any, will be in
addition to the standard (non-MQP) NASDAQ listing fee applicable to the
MQP Security and will not offset the standard listing fee.\39\ The
Exchange will prospectively bill each MQP Company for the quarterly MQP
Fee for each MQP Security.\40\ Basic MQP Fees and the Supplemental MQP
Fees will be credited to the NASDAQ General Fund.\41\
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\39\ See proposed Rule 5950(b)(2)(C).
\40\ See proposed Rule 5950(b)(2)(D). As discussed above, the
MQP Fee for an MQP Security will be paid by the Sponsor(s)
associated with the MQP Company. See supra note 14.
\41\ See proposed Rule 5950(b)(2)(E).
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3. MQP Market Maker Eligibility and MQP Credit Distribution
For a Market Maker to be eligible to participate in the MQP, the
Exchange must have accepted the Market Maker's application in respect
of an MQP Security and must have accepted the application of the MQP
Company in respect of the same MQP Security.\42\ In addition, to be
eligible to receive a periodic MQP Credit out of the NASDAQ General
Fund, MQP Market Makers must, when making markets in an MQP Security,
meet the applicable Market Maker obligations pursuant to NASDAQ Rule
4613 \43\ and must also
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meet or exceed the following requirements on a monthly basis with
respect to an MQP Security: (i) For at least 25% of the time when
quotes can be entered in the Regular Market Session,\44\ as averaged
over the course of a calendar month, maintain at least 500 shares of
attributable, displayed quotes or orders at the National Best Bid
(``NBB'') or better, and at least 500 shares of attributable, displayed
quotes or orders at the National Best Offer (``NBO'') or better; and
(ii) for at least 90% of the time when quotes can be entered in the
Regular Market Session, as averaged over the course of a month,
maintain at least 2,500 shares of attributable, displayed posted
liquidity on the NASDAQ Market Center \45\ that are priced no wider
than 2% away from the NBB, and at least 2,500 shares of attributable,
displayed posted liquidity on the NASDAQ Market Center that are priced
no wider than 2% away from the NBO.\46\
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\42\ See proposed Rule 5950(c)(1)(A). The Exchange also could
accept the MQP applications of multiple MQP Market Makers in the
same MQP Security, subject to any limitation on the number of MQP
Market Makers established pursuant to the proposed rule. Id.
\43\ NASDAQ Rule 4613 states that market making obligations
applicable to NASDAQ members that are registered as Market Makers
include, among other things, the following quotation requirements
and obligations: For each security in which a member is registered
as a Market Maker, the member shall be willing to buy and sell the
security for its own account on a continuous basis during regular
market hours and shall enter and maintain a two-sided trading
interest (``Two-Sided Obligation'') that is identified to NASDAQ as
the interest meeting the obligation and is displayed in NASDAQ's
quotation montage at all times. Interest eligible to be considered
as part of a Market Maker's Two-Sided Obligation shall have a
displayed quotation size of at least one normal unit of trading (or
a larger multiple thereof); provided, however, that a Market Maker
may augment its Two-Sided Obligation size to display limit orders
priced at the same price as the Two-Sided Obligation. Unless
otherwise designated, a ``normal unit of trading'' shall be 100
shares. After an execution against its Two-Sided Obligation, a
Market Maker must ensure that additional trading interest exists in
NASDAQ to satisfy its Two-Sided Obligation either by immediately
entering new interest to comply with this obligation to maintain
continuous two-sided quotations or by identifying existing interest
on the NASDAQ book that will satisfy this obligation. See Notice,
supra note 4, at 77148, n.68.
\44\ The term ``Regular Market Session'' has the meaning given
in NASDAQ Rule 4120(b)(4)(D). See proposed Rule 5950(e)(6).
\45\ The term ``NASDAQ Market Center'' has the meaning given in
NASDAQ Rule 4751(a). See proposed Rule 5950(e)(4).
\46\ See proposed Rule 5950(c)(1)(B). The Exchange provides the
following examples to illustrate these market quality requirements:
Regarding the first market quality standard (25%), in an MQP
Security where the NBBO is $25.00 x $25.10, for a minimum of 25% of
the time when quotes can be entered in the Regular Market Session as
averaged over the course of a month, an MQP Market Maker must
maintain bids at or better than $25.00 for at least 500 shares and
must maintain offers at or better than $25.10 for at least 500
shares. Thus, if there were 20 trading days in a given month and the
MQP Market Maker met this requirement 20% of the time when quotes
can be entered in the Regular Market Session for 10 trading sessions
and 40% of the time when quotes can be entered in the Regular Market
Session for 10 trading sessions then the MQP Market Maker would have
met the requirement 30% of the time in that month.
Regarding the second market quality standard (90%), in an MQP
Security where the NBBO is $25.00 x $25.10, for a minimum of 90% of
the time when quotes can be entered in the Regular Market Session as
averaged over the course of a month, an MQP Market Maker must post
bids for an aggregate of 2,500 shares between $24.50 and $25.00, and
post offers for an aggregate of 2,500 shares between $25.10 and
$25.60. Thus, if there were 20 trading days in a given month and the
MQP Market Maker met this requirement 88% of the time when quotes
can be entered in the Regular Market Session for 10 trading sessions
and 98% of the time when quotes can be entered in the Regular Market
Session for 10 trading sessions then the MQP Market Maker would have
met the requirement 93% of the time in that month.
See Notice, supra note 4, at 77148-49, n.71.
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MQP Credits for each MQP Security will be calculated monthly and
credited out of the NASDAQ General Fund quarterly on a pro rata basis
to one or more eligible MQP Market Makers.\47\ Each MQP Credit will be
allocated 50% to a ``Quote Share Payment'' that is based on ``Qualified
Quotes,'' and 50% to a ``Trade Share Payment'' that is based on
``Qualified Trades.'' \48\ A ``Qualified Quote'' represents
attributable and displayed liquidity (either quotes or orders) entered
by an MQP Market Maker in an MQP Security that is posted within 2% of
the NBBO.\49\ A ``Qualified Trade'' represents a liquidity-providing
execution in an MQP Security by an MQP Market Maker of a Qualified
Quote on the NASDAQ Market Center.\50\ Quote Share Payments will be
based in equal proportions on: (a) Average quoted size at or better
than the NBBO; and (b) average time spent quoting at or better than the
NBBO.\51\ Trade Share Payments will be based upon each MQP Market
Maker's share of total Qualified Trades in an MQP Security executed on
the NASDAQ Market Center.\52\ Quote Share Payments and Trade Share
Payments will be composed of Basic MQP Fees and Supplemental MQP Fees,
if any.\53\
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\47\ See proposed Rule 5950(c)(2). If only one MQP Market Maker
meets its obligations under the proposal with respect to an MQP
Security, the entire MQP Credit available for that MQP Security will
be distributed by the Exchange to that MQP Market Maker out of the
NASDAQ General Fund. If multiple MQP Market Makers satisfy their
obligations with respect to an MQP Security, the available MQP
Credit for the quarter will be distributed pro rata among them. See
Notice, supra note 4, at 77150. If no MQP Market Maker is eligible
to receive an MQP Credit, the MQP Fee relating to the MQP Security
will remain in the Exchange's General Fund. See id. at 77147.
\48\ See proposed Rule 5950(c)(2)(A).
\49\ See proposed Rule 5950(c)(2)(A)(i).
\50\ See proposed Rule 5950(c)(2)(A)(ii).
\51\ See proposed Rule 5950(c)(2)(B)(ii).
\52\ See proposed Rule 5950(c)(2)(B)(i).
\53\ See proposed Rule 5950(c)(2)(B)(iii). As discussed above,
MQP Credits will be credited out of the NASDAQ General Fund. See
supra note 47 and accompanying text.
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An MQP Credit will be credited quarterly to an MQP Market Maker on
a pro rata basis for each month during the preceding quarter that an
MQP Market Maker is eligible to receive a credit pursuant to the
proposed rule.\54\ The calculation to establish the eligibility of an
MQP Market Maker will be done on a monthly basis.\55\
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\54\ See proposed Rule 5950(c)(2)(C).
\55\ Id. For example, if during a quarter an MQP Market Maker
was eligible to receive a credit for two out of three months, the
MQP Market Maker would receive a quarterly pro rata MQP Credit for
those two months. Id.
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4. Termination of the MQP
The MQP will terminate in respect of an MQP Security under any of
the following circumstances: (i) The MQP Security sustains an average
daily trading volume (consolidated trades in all U.S. markets)
(``ATV'') of 1,000,000 shares or more for three consecutive months;
(ii) an MQP Company, on behalf of an MQP Security, withdraws from the
MQP, is no longer eligible to be in the MQP, or its Sponsor ceases to
make MQP Fee payments to the Exchange; (iii) the MQP Security is
delisted or is no longer eligible for the MQP; (iv) the MQP Security
does not have at least one MQP Market Maker for more than one quarter;
or (v) the MQP Security does not, for two consecutive quarters, have at
least one MQP Market Maker that is eligible for MQP Credit.\56\ Any MQP
Credits remaining upon termination of the MQP in respect of an MQP
Security will be distributed on a pro rata basis to the MQP Market
Makers that made a market in the MQP Security and were eligible to
receive MQP Credits pursuant to the proposed rule.\57\ Termination of
an MQP Company, MQP Security, or MQP Market Maker from the MQP will not
preclude the Exchange from allowing re-entry into the MQP where the
Exchange deems proper.\58\
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\56\ See proposed Rule 5950(d)(1).
\57\ See proposed Rule 5950(d)(2). As discussed above, if no
Market Maker is eligible to receive MQP Credits pursuant to the
proposed rule, the MQP Fee will remain in the Exchange's General
Fund. See supra note 47.
\58\ See proposed Rule 5950(d)(3).
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5. Pilot Basis
To provide the Exchange, the Commission, and other interested
parties an opportunity to evaluate the impact of the MQP on the quality
of markets in MQP Securities, the Exchange has proposed to implement
the MQP as a one-year pilot program that will commence when the MQP is
implemented by the Exchange's acceptance of an MQP Company, on behalf
of an MQP Security, and relevant MQP Market Maker into the MQP. The MQP
will end one year after implementation, unless extended pursuant to a
proposed rule change approved by the Commission under Section 19(b) of
the Exchange Act.\59\
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\59\ See proposed Rule 5950(f).
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[[Page 18397]]
During the pilot period, the Exchange will periodically provide
information to the Commission about market quality in respect of the
MQP. Specifically, the Exchange will submit monthly reports to the
Commission about market quality in respect of the MQP (and will make
these monthly reports public). The reports will include data and
analysis with respect to MQP Securities that are in the Program, as
well as data and analysis about the market quality of MQP Securities
that exceed the one million ATV threshold and ``graduate'' from the
Program pursuant to proposed Rule 5950(d)(1)(A).\60\ The reports will
compare, to the extent practicable, securities before and after they
are in the MQP, and will include information regarding the MQP such as:
(i) Rule 605 metrics; \61\ (ii) volume metrics; (iii) the number of MQP
Market Makers; (iv) spread size; and (v) the availability of shares at
the NBBO.\62\ These reports also will include the Exchange's analysis
of the information and assessment of the efficacy of the MQP.\63\ In
addition, the Exchange will provide similar data and analyses to the
Commission about comparable ETFs that are listed on the Exchange but
that are not in the MQP, as well as any other MQP-related data and
analyses requested by Commission staff for the purpose of evaluating
the efficacy of the MQP.\64\ The Exchange will post the monthly reports
on its Web site.\65\ The first report will be submitted within sixty
days after the MQP becomes operative.\66\
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\60\ See Amendment No. 3, supra note 6.
\61\ 17 CFR 242.605.
\62\ See Notice, supra note 4, at 77149. See also Amendment No.
3, supra note 6.
\63\ See Amendment No. 3, supra note 6.
\64\ See Notice, supra note 4, at 77149. See also Amendment No.
3, supra note 6.
\65\ See Notice, supra note 4, at 77149.
\66\ Id.
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B. Proposed Interpretation IM-2460-1 (Market Quality Program)
As part of its proposal to establish the MQP by adding Rule 5950,
the Exchange is amending NASDAQ Rule 2460 (Payments for Market Making),
which prohibits direct or indirect payment by an issuer to a Market
Maker, to adopt a new interpretive provision to the rule.\67\
Specifically, the Exchange is proposing to adopt new interpretation IM-
2460-1 (Market Quality Program) to provide that Rule 2460 will not be
applicable to a member that is accepted into the MQP pursuant to
proposed Rule 5950 (or to a person that is associated with that member)
for its conduct in connection with the MQP.\68\
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\67\ In relevant part, Rule 2460 provides that ``[n]o member or
person associated with a member shall accept any payment or other
consideration, directly or indirectly, from an issuer of a security,
or any affiliate or promoter thereof, for publishing a quotation,
acting as market maker in a security, or submitting an application
in connection therewith.''
\68\ See proposed IM-2460-1. The Exchange notes that, based on
discussions with the Financial Industry Regulatory Authority
(``FINRA''), it expects FINRA to file a proposed rule change to
exempt the MQP from FINRA Rule 5250. See Notice, supra note 4, at
77141, n.7. Similar to NASDAQ Rule 2460, FINRA Rule 5250 (formerly
NASD Rule 2460) prohibits FINRA members from directly or indirectly
accepting payment from an issuer of a security for acting as a
market maker. See Securities Exchange Act Release No. 38812 (July 3,
1997), 62 FR 37105 (July 10, 1997) (SR-NASD-97-29) (``NASD Rule 2460
Approval Order'').
---------------------------------------------------------------------------
C. Information Bulletin and Surveillance
The Exchange will issue to its members an information bulletin
about the MQP prior to operation of the Program.\69\
---------------------------------------------------------------------------
\69\ See Notice, supra note 4, at 77149.
---------------------------------------------------------------------------
The Exchange represents that its surveillance procedures are
adequate to properly monitor the trading of the MQP Securities on the
Exchange during all trading sessions and to detect and deter violations
of the Exchange's rules and applicable federal securities laws. Trading
of the MQP Securities through the Exchange will be subject to FINRA's
surveillance procedures for derivative products including ETFs.\70\ The
Exchange may obtain information through the Intermarket Surveillance
Group (``ISG'') from other exchanges that are members or affiliates of
ISG and from listed MQP Companies and public and non-public data
sources such as, for example, Bloomberg.
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\70\ FINRA surveils trading on the Exchange pursuant to a
regulatory services agreement with the Exchange. The Exchange states
that it is responsible for FINRA's performance under this regulatory
services agreement. See Notice, supra note 4, at 77149, n.79.
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II. Summary of Comment Letters
The Commission received three comment letters in support of the
proposed rule change.\71\
---------------------------------------------------------------------------
\71\ See TechNet Letter, Weaver Letter, and Menkveld Letter,
supra notes 5 and 8.
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One commenter believes that the proposed MQP would be an important,
positive first step towards addressing the lack of liquidity for many
securities in today's market.\72\ This commenter states its belief that
the MQP is designed to encourage liquidity where it generally has not
flourished, and would make securities that participate in the Program
more attractive to a broader range of investors.\73\ This commenter
also believes that the MQP has the potential to benefit promising tech
companies that today may lack liquid, quality markets.\74\
---------------------------------------------------------------------------
\72\ Id.
\73\ Id.
\74\ Id.
---------------------------------------------------------------------------
Another commenter states that it fully supports NASDAQ's proposal
and urges the Commission to adopt a stance allowing direct payment
between issuers and market makers.\75\ This commenter states that
direct payments from issuers to market makers are used in a number of
markets outside of the U.S., and argues that such programs are very
successful, resulting in lower transaction costs, lower volatility, and
higher depth for investors.\76\ This commenter points to academic
studies finding that such programs applied to common stocks generally
improve market quality and benefit social welfare.\77\ This commenter
cites an article finding that narrower spreads arising from designated
market makers with an affirmative obligation to set spreads narrower
than would exist otherwise will induce both uninformed and informed
traders to trade more, which in turn will lead to increased price
efficiency and faster price discovery.\78\ This commenter also
discusses his own study of payments from issuers of common stock to
market makers and concludes that market makers entering into these
types of agreements provide liquidity buffers against supply and demand
shocks.\79\ This commenter states that there have been no reports of
manipulation attempts by issuers or abuses by market makers relating to
paid-for market making arrangements abroad, and argues that the
implementation of paying market makers to improve market quality in
other countries probably improved investor confidence, as evidenced by
the increase in volume and order size observed by
[[Page 18398]]
researchers.\80\ The commenter further argues that the payments made to
MQP Market Makers under the Exchange's proposal will not be of
sufficient size to provide enough incentive for manipulation.\81\
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\75\ See Weaver Letter, supra note 5, at 1.
\76\ See id. at 1, 3-4 (citing Euronext, Deutsche Borse, NASDAQ
OMX's European exchanges, and the Oslo Stock Exchange as markets
where such programs have been successful).
\77\ See id. at 1-2 (citing to the following studies: D.G.
Weaver and A. Anand, ``The Value of the Specialist: Empirical
Evidence from the CBOE'' Journal of Financial Markets, Vol. 9, no.
2, 100-118 (2006); D.G. Weaver, A. Anand, and C. Tanggaard ``Paying
for Market Quality'' Journal of Financial and Quantitative Analysis,
Vol. 44, 1427-1457 (2009) (``Weaver Study''); H. Bessembinder, J.
Hao, and M. Lemmon ``Why Designate Market Makers? Affirmative
Obligations and Market Quality'' Working paper, University of Utah
(2006) (``Bessembinder Study''); and A. Charitou and M. Panayides,
``Market Making in International Capital Markets'' International
Journal of Managerial Finance, Vol. 5, 50-80 (2009).
\78\ See id. at 3 (citing to the Bessembinder Study, supra note
77).
\79\ See id. at 2 (citing to the Weaver Study, supra note 77).
\80\ See id. at 4 and 6.
\81\ See id. at 7.
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Another commenter is supportive of an MQP pilot study and believes
that the MQP could create value for an issuer by enabling an issuer to
essentially guarantee liquidity in its stock.\82\ The commenter views
the proposed MQP as a form of ``liquidity insurance'' through which
shareholders in the issuer agree ex ante to pay for a minimum liquidity
guarantee to insure against uncertain future liquidity.\83\ The
commenter states that if future liquidity for a security is less
uncertain, more investors should participate in the market for the
security, creating a beneficial equilibrium of increased liquidity and
increased investor participation.\84\ Thus, the commenter asserts, the
MQP could be a way to jump-start trading in a particular product at
launch, and if there is intrinsic interest in the product, the product
launch should have a better chance of being successful.\85\ This
commenter cites his own study of designated market maker contracts for
common stocks at Euronext for the finding that such contracts on
average improve the liquidity level, reduce liquidity risk, and reduce
the size of pricing errors in such stocks, among other things,\86\ and
states that his study complements the generally favorable evidence from
other European markets on designated market maker contracts.\87\
---------------------------------------------------------------------------
\82\ See Menkveld Letter, supra note 8, at 2.
\83\ Id.
\84\ Id.
\85\ Id.
\86\ See id. at 1-2 (citing to A.J. Menkveld & T. Wang, ``How do
designated market makers create value for small-caps?'' Manuscript,
VU University, Amsterdam (2011)).
\87\ See id. at 2 (citing to the Weaver Study, supra note 77; M.
Nimalendran & G. Petrella, ``Do `Thinly-Traded' Stocks Benefit from
Specialist Intervention?'' Journal of Banking and Finance, Vol. 27,
1823-54 (2003); and K. Venkataraman & A. Waisburd, ``The Value of
the Designated Market Maker'' Journal of Financial and Quantitative
Analysis, Vol. 42, 735-58 (2007)).
---------------------------------------------------------------------------
This commenter further notes that the risk that insider information
at an issuer could reach an MQP Market Maker is low because the terms
of the Program are fixed and specific, there is no need for
communication between an issuer and the MQP Market Maker after the
Program is in place, the Exchange monitors the performance of the MQP
Market Makers, and the securities proposed for inclusion in the MQP
(ETPs) are baskets of securities and therefore less likely to be
affected by such insider information risk.\88\ Finally, this commenter
suggests that the pilot have a staggered introduction of MQP Securities
with a randomized sequence, and a long enough pre-and post-event period
(e.g., three months) for each introduction to identify an effect, and
that the Exchange provide the Commission with detailed reporting of all
trades and quotes in all securities for a pre-event period and a post-
event period (with MQP Market Maker trades and quotes flagged).\89\
---------------------------------------------------------------------------
\88\ Id. at 3.
\89\ Id. at 4-5.
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III. Discussion and Commission Findings
The Commission has carefully considered the proposed rule change,
as modified by Amendment Nos. 1 and 3 thereto, and finds that the
proposed rule change, as modified by Amendment Nos. 1 and 3 thereto, is
consistent with the requirements of the Act and the rules and
regulations thereunder applicable to national securities exchanges. In
particular, as discussed below, the Commission finds that the proposed
rule change is consistent with Section 6(b)(4) of the Act,\90\ which
requires that the rules of a national securities exchange provide for
the equitable allocation of reasonable dues, fees, and other charges
among its members and issuers and other persons using its facilities,
and with Section 6(b)(5) of the Act,\91\ which requires, among other
things, that the rules of a national securities exchange be designed to
promote just and equitable principles of trade, 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, and that the rules not be designed to permit unfair
discrimination between customers, issuers, brokers, or dealers.
Further, as required by Section 3(f) of the Act, the Commission has
considered the proposed rule's impact on efficiency, competition, and
capital formation.\92\
---------------------------------------------------------------------------
\90\ 15 U.S.C. 78f(b)(4).
\91\ 15 U.S.C. 78f(b)(5).
\92\ See 15 U.S.C. 78c(f).
---------------------------------------------------------------------------
The MQP, as proposed to be implemented on a pilot basis, is
designed to benefit investors, issuers and market participants by
improving the market quality for ETFs that participate in the MQP. As
proposed by the Exchange, to remain in the MQP and to receive quarterly
MQP Credit payments out of the NASDAQ General Fund, each MQP Market
Maker will be required to comply with monthly quoting requirements that
are higher than the standard quoting requirements applicable to market
makers in ETFs on the Exchange.\93\ Each MQP Market Maker that complies
with these heightened quoting obligations will receive a share of the
MQP Credit based upon its size quoted, and time spent quoting, at or
better than the NBBO, and based on its liquidity-providing executions
of such quotes. In addition, the Program is separately designed to
incentivize MQP Market Makers to compete with each other to receive the
MQP Credit payments, as the payments will be distributed based on each
MQP Market Maker's average quoted size and time spent quoting at or
better than the NBBO as compared to other MQP Market Makers, and its
share of total Qualified Trades in an MQP Security executed on the
Exchange. Thus, the proposal is designed to incentivize MQP Market
Makers to quote more often, and in greater quoted size, at the NBBO,
potentially improving the market quality of the MQP Securities that
participate in the MQP. This potential improved market quality, were it
to occur, could benefit investors in the form of enhanced liquidity,
narrowed spreads, and reduced transaction costs.\94\
---------------------------------------------------------------------------
\93\ Specifically, with respect to the monthly quoting
requirement, an MQP Market Maker must quote at least 500 shares of
attributable, displayed liquidity at the NBB or NBO 25% of the time
during the Regular Market Session, and at least 2,500 shares of
attributable, displayed liquidity within 2% of the NBB or NBO 90% of
the time during the Regular Market Session.
\94\ In support of the proposal, the Exchange argues that the
MQP will, among other things, lower transaction costs and enhance
liquidity in both ETFs and their components, making both more
attractive to a broader range of investors, and that, in so doing,
the MQP will help companies access capital to invest and grow. See
Notice, supra note 4, at 77142. The Exchange asserts that being
included in a successful ETF can provide the stocks of these
companies with enhanced liquidity and exposure, enabling them to
attract investors and access capital markets to fund investment and
growth. See id. at 77142, n.12 and 77145, n.37-38 and accompanying
text (citing to the testimony of Eric Noll, Executive Vice
President, NASDAQ OMX, Before the Securities Subcommittee of the
Senate Banking Committee October 19, 2011). Two commenters agree
with the Exchange that the MQP will benefit the operating companies
underlying ETFs in the MQP, in addition to the ETFs themselves. See
Weaver Letter, supra note 5, at 4-5, and Menkveld Letter, supra note
8, at 3-4. As constructed, any potential benefit to operating
companies from the MQP could be derived from the company being
included within an index or other benchmark that underlies an ETF
that participates in the MQP.
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In addition, because the quoted bid-ask spread in a security
represents one of the main drivers of transaction costs for investors,
and because high price volatility should generally deter
[[Page 18399]]
investors from trading low-liquidity ETFs, the MQP, were the potential
benefits of the program to occur, should facilitate a more-efficient
and less-uncertain trading environment for investors.\95\ Furthermore,
were the potential benefits of the MQP to occur, improving the
liquidity of certain low-volume ETFs may help those ETFs better compete
with more established ETFs that cover the same underlying assets and
that have an advantage over new market entrants because they have
already attracted a significant amount of liquidity.\96\
---------------------------------------------------------------------------
\95\ Transaction costs are generally defined as the penalty that
an investor pays for transacting. Transaction costs have four
components: commissions; bid/ask spread; market impact; and
opportunity cost. See Grinold, Kahn. Active Portfolio Management,
Second Edition, Chapter 16. An increase in bid-ask spreads will
inevitably increase the transaction costs of an investor. In
addition, transactions in low-liquidity securities have a higher
market impact when compared to other more liquid securities. See
Albert Kyle's (1985) measure of market impact (Kyle's Lambda),
defining an inverse relationship between volume and price impact.
Therefore, the lower the volume of the ETF or stock, the higher the
market impact of any transaction in that stock. This last effect
acts as a disincentive to trading that security. Therefore, an
environment where an ETF trades more often and with a larger number
of shares will reduce transaction costs both through the narrowing
of spreads and lower market impact.
\96\ This phenomenon can be described as economies of scale in
the management of ETFs. Given that most ETFs track an index, it
costs little more to run a fund with $20 billion in assets under
management than one with $200 million in assets under management. As
a result, ETFs that have established large asset holdings can be
offered to investors with lower management fees, which in turn
reinforces the cycle of growth for the large ETFs. See Latzko, David
A., ``Economies of Scale in Mutual Fund Administration.''
Pennsylvania State University, York Campus, 1998 (available at
http://www.personal.psu.edu/~dxl31/research/articles/mutual.pdf)
(analyzing economies of scale in mutual fund administration). See
also Rompotis, Gerasimos Georgiou, ``The German Exchange Traded
Funds (December 4, 2012). The IUP Journal of Applied Finance, Vol.
18, No. 4, October 2012, pp. 62-82 (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2184748) (analyzing
economies of scale in German ETFs).
---------------------------------------------------------------------------
While the Commission believes that the Program has the potential to
improve market quality of the MQP Securities participating in the
Program, the Commission is concerned about unintended consequences of
the Program. For example, the MQP could have the potential to distort
market forces because the Program may act to artificially influence
trading in ETFs that otherwise would not be traded. Similarly, the
Commission recognizes concerns about the potential negative impact on
an MQP Security, such as reduced liquidity and wider spreads, when an
MQP Company withdraws or is terminated from the Program. While the
Commission is mindful of these concerns, the Commission believes, for
the reasons described below, that certain aspects of the Program could
help mitigate these concerns.\97\
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\97\ The concurrent exemptive relief the Commission is issuing
today from Rule 102 under Regulation M concerning the MQP also
contains additional disclosure requirements. See Securities Exchange
Act Release No. 69196 (March 20, 2013), supra note 9.
---------------------------------------------------------------------------
First, the proposal contains disclosure provisions that will help
to alert and educate potential and existing investors in the MQP
Securities about the Program. Specifically, the Exchange will disclose
on its Web site the following information: (i) The identities of the
MQP Companies, MQP Securities, and MQP Market Makers accepted into the
MQP; (ii) any limits the Exchange may impose on the number of MQP
Securities per MQP Company or MQP Market Makers per MQP Security in the
MQP; (iii) for each MQP Security, the amount of the Supplemental MQP
Fee, if any, per MQP Security that would be in addition to the fixed
Basic MQP Fee of $50,000; (iv) any notification received by the
Exchange that an MQP Company, on behalf of an MQP Security, or MQP
Market Maker intends to withdraw from the MQP; and (v) the dates that
an MQP Company, on behalf of an MQP Security, commences participation
in and is withdrawn or terminated from the MQP. The Exchange also will
include on its Web site a statement about the MQP that sets forth a
fair and balanced summation of the potentially positive and negative
aspects of the MQP. Furthermore, an MQP Company will be required to
disclose on a product-specific Web site that the MQP Security is
participating in the MQP and will be required to provide a link on that
Web site to the Exchange's MQP Web site. This disclosure will help to
inform investors and other market participants which securities are
participating in the MQP, which and how many MQP Market Makers are
assigned to each MQP Security, the amount of MQP Fees an MQP Company
will incur as a result of participating in the MQP, the amount of MQP
Credits the MQP Market Makers could potentially receive from the
Exchange under the MQP, and the potential benefits and risks of the
MQP. A wide variety of ETFs are currently listed and trading today, and
the Commission believes that such disclosure could be helpful for
investors and other market participants to discern which ETFs listed on
the Exchange are and are not subject to the MQP and to make informed
investment decisions with respect to ETFs.
Second, the Program is targeted at a subset of ETFs, namely those
ETFs that are generally less liquid and which the Exchange believes
might benefit most from the Program.\98\ Specifically, as proposed,
ETFs that are otherwise eligible for the Program will not be eligible
if they have an ATV of 1,000,000 shares or more for three consecutive
months. Likewise, the Program will terminate with respect to a
particular MQP Security if the MQP Security sustains an ATV of
1,000,000 shares or more for three consecutive months.
---------------------------------------------------------------------------
\98\ The Exchange has stated that the proposal is designed to
provide market quality support to smaller, less frequently traded
ETFs. See Notice, supra note 4, at 77145.
---------------------------------------------------------------------------
Finally, as proposed by the Exchange, the MQP will be limited to a
one-year pilot. The Commission believes that it is important to
implement the MQP as a pilot. Operating the MQP as a pilot will allow
assessment of whether the MQP is in fact achieving its goal of
improving the market quality of MQP Securities, prior to any proposal
or determination to make the Program permanent.\99\ In addition,
approval on a pilot basis will allow the assessment, prior to any
proposal or determination to make the program permanent, of whether the
MQP has any unintended impact on the MQP Securities, securities not in
the MQP, or the market or market participants generally.
---------------------------------------------------------------------------
\99\ The Exchange has indicated that if the MQP is successful,
it will seek to expand the program to small cap stocks and other
similar products that may need liquidity enhancement. See Notice,
supra note 4, at 77145. The Exchange would be required to file any
similar proposal applicable to small cap companies pursuant to
Section 19(b) of the Exchange Act and the rules and regulations
thereunder. Such a filing would be published for comment in the
Federal Register pursuant to Section 19(b) and Rule 19b-4.
---------------------------------------------------------------------------
The Exchange has represented that during the pilot it will submit
monthly reports to the Commission about market quality in respect of
the MQP and that these reports will be posted on the Exchange's public
Web site and will compare securities before and after they are in the
MQP, to the extent practicable, and provide information regarding MQP
Security volume metrics, the number of MQP Market Makers in MQP
Securities, quotation spread and size statistics, and data and analysis
about the market quality of MQP Securities that exceed the threshold
and ``graduate'' from the Program pursuant to proposed Rule
5950(d)(1)(A), among other information and analyses.\100\ The Exchange
also has represented that it will provide to the Commission similar
data and analyses about comparable products listed on the Exchange that
are not participating in the MQP, as well as any other MQP-
[[Page 18400]]
related data and analyses the Commission staff requests from the
Exchange for the purpose of evaluating the efficacy of the MQP.\101\
This information will help the Commission, the Exchange, and other
interested persons to evaluate whether the MQP has resulted in the
intended benefits it is designed to achieve, any unintended
consequences resulting from the MQP, and the extent to which the MQP
alleviates or aggravates the concerns the Commission has noted,
including previously-stated Commission concerns relating to issuer
payments to market makers.\102\
---------------------------------------------------------------------------
\100\ See supra notes 60-64 and accompanying text.
\101\ Id.
\102\ See infra notes 108-111 and accompanying text.
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For example, the Exchange and the Commission will look to assess
what impact, if any, there is on the market quality of MQP Securities
that withdraw or are otherwise terminated from the MQP.\103\ One way
for an MQP Security to be terminated from the MQP is if it exceeds the
1,000,000 ATV threshold included within the rules.\104\ The Exchange
states that past trading data indicate that ``graduation'' from the MQP
during the pilot at a 1,000,000 ATV threshold should occur more
frequently than at a 2,000,000 ATV threshold, which was the threshold
proposed in its original filing relating to the MQP (which was later
withdrawn).\105\ The Commission recognizes that the MQP may not, in the
one-year pilot period, produce sufficient data (i.e., a large number of
MQP Securities that enter and exit the MQP) to allow a full assessment
of whether termination (or withdrawal) of an MQP Security from the
Program has resulted in any unintended consequences on the market
quality of the MQP Security or otherwise.\106\ However, the Commission
believes that the proposal strikes a reasonable balance between (i)
setting the threshold for ``graduation'' from the MQP high enough to
encourage participation in the MQP and (ii) setting the threshold low
enough to have a sufficient number of MQP Securities graduate from the
Program within the pilot period so that the Exchange, the Commission,
and other interested persons can assess the impact, if any, of the MQP,
including ``graduation'' of MQP Securities from the Program.
---------------------------------------------------------------------------
\103\ See Notice, supra note 4, at 77140 (stating that the
1,000,000 ATV threshold would ``better provide NASDAQ and the
Commission with an opportunity to observe the impact, if any, on MQP
Securities that exceed the threshold and `graduate' from the
Program'').
\104\ See proposed Rule 5950(d)(1)(A).
\105\ See supra note 3. The Exchange provided statistics on the
number of ETFs that would have graduated annually at the 1 million
ATV and 2 million ATV volume thresholds from the MQP had it been in
existence over the period of 2001 to 2012. Specifically, (i) in
2001, 2 ETPs would have graduated from the MQP under the 2 million
ATV threshold, while 3 ETPs would have graduated under the 1 million
ATV threshold; (ii) in 2002, 1 ETP would have graduated under the 2
million ATV threshold, while 4 ETPs would have graduated under the 1
million ATV threshold; (iii) in 2003, 3 ETPs would have graduated
under the 2 million ATV threshold, while 5 ETPs would have graduated
under the 1 million ATV threshold; (iv) in 2004, 2 ETPs would have
graduated under the 2 million ATV threshold, while 5 ETPs would have
graduated under the 1 million ATV threshold; (v) in 2005, 7 ETPs
would have graduated under the 2 million ATV threshold, while 14
ETPs would have graduated under the 1 million ATV threshold; (vi) in
2006, 10 ETPs would have graduated under the 2 million ATV
threshold, while 20 ETPs would have graduated under the 1 million
ATV threshold; (vii) in 2007, 23 ETPs would have graduated under the
2 million ATV threshold, while 24 ETPs would have graduated under
the 1 million ATV threshold; (viii) in 2008, 38 ETPs would have
graduated under the 2 million ATV threshold, while 48 ETPs would
have graduated under the 1 million ATV threshold; (ix) in 2009, 20
ETPs would have graduated under the 2 million ATV threshold, while
27 ETPs would have graduated under the 1 million ATV threshold; (x)
in 2010, 10 ETPs would have graduated under the 2 million ATV
threshold, while 16 ETPs would have graduated under the 1 million
ATV threshold; (xi) in 2011, 12 ETPs would have graduated under the
2 million ATV threshold, while 16 ETPs would have graduated under
the 1 million ATV threshold; and (xii) in 2012, 3 ETPs would have
graduated under the 2 million ATV threshold, while 5 ETPs would have
graduated under the 1 million ATV threshold. See Notice, supra note
4, at 77145. These statistics, however, assume that all eligible
securities actually participate in the Program.
\106\ One commenter suggests that the pilot have a staggered
introduction of MQP Securities with a randomized sequence, and a
long enough pre- and post-event period (e.g., three months) for each
introduction to identify any effects of the MQP. See Menkveld
Letter, supra note 8, at 4; see also supra note 89. The Commission
believes that the way the Exchange has structured the pilot is
reasonable and consistent with the Act. As discussed above, the
Exchange has represented that it will (a) provide reports to the
Commission that include information about MQP Securities that exceed
the threshold and ``graduate'' from the Program (and make these
reports public) and (b) provide information to the Commission about
other ETPs not in the Program and any other MQP-related data and
analysis Commission staff requests. Such information should be
useful in the evaluation of the effects of the MQP.
---------------------------------------------------------------------------
Furthermore, the pilot structure of the MQP will provide
information to help determine whether any provisions of the MQP should
be modified. For example, based on data from the pilot, the Exchange
may determine that the 1,000,000 ATV termination threshold is not an
appropriate threshold on which to base eligibility for the MQP or that
the Program should be time-limited.\107\
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\107\ One commenter, addressing whether a 2,000,000 ATV
threshold would be appropriate, noted that such a termination
threshold would be ``an arbitrary number that is no better or worse
than any other large number'' and that the threshold may need to be
adjusted after the MQP has been implemented. See Weaver Letter,
supra note 5, at 8.
---------------------------------------------------------------------------
The Commission believes that the design of the MQP and the public
disclosure requirements, coupled with implementation of the proposal on
a pilot basis, should help mitigate potential concerns the Commission
has noted above relating to any unintended or negative effects of the
MQP on the ETF market and investors.
The Commission also believes that proposed interpretation IM-2460-
1, which would exempt the MQP from the Exchange's general prohibition
on payments by an issuer to a Market Maker contained in Exchange Rule
2460, is consistent with the Act. Exchange Rule 2460 is almost
identical to, and is based on, FINRA Rule 5250. FINRA Rule 5250
(formerly NASD Rule 2460) was implemented, in part, to address concerns
about issuers paying market makers, directly or indirectly, to
improperly influence the price of an issuer's stock and because of
conflict of interest concerns between issuers and market makers.\108\
FINRA Rule 5250 was designed to preserve ``the integrity of the
marketplace by ensuring that quotations accurately reflect a broker-
dealer's interest in buying or selling a security.'' \109\
Specifically, in the NASD Rule 2460 Approval Order, the Commission
found that the ``decision by a firm to make a market in a given
security and the question of price generally are dependent on a number
of factors, including, among others, supply and demand, the firm's
expectations toward the market, its current inventory position, and
exposure to risk and competition. This decision should not be
influenced by payments to the member from issuers or promoters. Public
investors expect broker-dealers' quotations to be based on the factors
described above. If payments to broker-dealers by promoters and issuers
were permitted, investors would not be able to ascertain which
quotations in the marketplace are based on actual interest and which
quotations are supported by issuers or promoters. This structure would
harm investor confidence in the overall integrity of the marketplace.''
\110\ The Commission also added that ``such payments may be viewed as a
conflict of interest since they may influence the member's decision as
to whether to quote or make a market in a security and, thereafter, the
prices that the member would quote.'' \111\
---------------------------------------------------------------------------
\108\ See NASD Rule 2460 Approval Order, supra note 68, at
37107.
\109\ See NASD Rule 2460 Approval Order, supra note 68, at
37107.
\110\ See id.
\111\ See id. at 37106.
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The Commission believes that a number of aspects of the MQP
mitigate the concerns that FINRA Rule 5250 and
[[Page 18401]]
Exchange Rule 2460 were designed to address.\112\ First, the Commission
believes that the terms of the MQP are generally objective, clear, and
transparent. The standards for the MQP are set forth in proposed NASDAQ
Rule 5950 (further described above) \113\ and describe the application
and withdrawal process, the fee and credit structure, the market
quality standards that an MQP Market Maker must meet and maintain to
secure an MQP Credit, and the MQP termination process. These
requirements apply to all MQP Securities, MQP Companies, and MQP Market
Makers.\114\
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\112\ Two commenters have stated that the design and overall
transparency of the Program adequately address concerns relating to
manipulation. See Weaver Letter, supra note 5, at 6-7, and Menkveld
Letter, supra note 8, at 3.
\113\ See supra Section I.A.
\114\ While the Exchange will have some amount of discretion
pursuant to the proposed rules to limit the number of MQP Securities
that any one MQP Company may list in the MQP, if such a limit is in
the best interest of the Exchange, the MQP Company and the goals of
the MQP, or investors, and/or to limit the number of MQP Market
Makers in an MQP Security, the Commission believes such limits would
not be unfairly discriminatory, as they would be imposed on a MQP-
wide basis. In addition, the Commission believes that it is
reasonable and consistent with the Act for the Exchange to have some
amount of flexibility to limit the number of MQP Securities or MQP
Market Makers, to protect investors and the ETF market.
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Second, the Exchange also will provide notification on its public
Web site regarding the various aspects of the MQP. As discussed above,
this notification will include: (i) The names of the MQP Companies and
the MQP Market Makers that are accepted into the MQP; (ii) the specific
names of the MQP Securities that are participating in the MQP; (iii)
the identity of the MQP Market Makers in each MQP Security; (iv) any
limits the Exchange may impose on the number of MQP Securities per MQP
Company or MQP Market Makers per MQP Security in the MQP; (v) the
amount of the Supplemental MQP Fee of each MQP Security, if one is
established by an MQP Company; (vi) any notification received by the
Exchange that an MQP Company, on behalf of an MQP Security, or MQP
Market Maker intends to withdraw from the MQP; and (v) the dates that
an MQP Company, on behalf of an MQP Security, commences participation
in and is withdrawn or terminated from the MQP; and (vii) a statement
about the MQP that sets forth a fair and balanced summary of the
potentially positive and negative aspects of the MQP. In addition, an
MQP Company will be required to disclose that the MQP Security is
participating in the MQP and to provide a link to the Exchange's MQP
Web page on the MQP Security's Web site.
And third, MQP Securities will be traded on the Exchange, which is
a regulated market, pursuant to the current trading and reporting rules
of the Exchange, and pursuant to the Exchange's established market
surveillance and trade monitoring procedures. The Exchange will
administer the application and acceptance of the MQP Companies and MQP
Market Makers into the MQP and will manage the payment of the MQP
Credit to MQP Market Makers. The Exchange has represented that the
recipient MQP Market Makers of the MQP Credits and the size of the MQP
Credits will be determined solely by the Exchange pursuant to objective
criteria, and MQP Companies will have no role in selecting the MQP
Market Maker recipients or in determining the specific amount, if any,
of their MQP Credits. Furthermore, the MQP Fees will be paid into
NASDAQ's General Fund, and the MQP Credits will be paid out of NASDAQ's
General Fund. If no MQP Market Maker is eligible to earn an MQP Credit
for a particular MQP Security during a quarter, the MQP Fee will remain
in NASDAQ's General Fund, and no MQP Fees or any portion thereof will
be rebated with respect to any MQP Security, regardless of the
performance of the MQP Security's assigned MQP Market Makers. The
Commission believes that these factors, taken together, should help to
mitigate the conflict of interest and other concerns that the
Commission has previously identified \115\ relating to issuers paying
for market making.\116\
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\115\ See NASD Rule 2460 Approval Order, supra note 68, and
supra notes 108-111. See also Securities Act Release No. 6334 (Aug.
6, 1981), 46 FR 42001 (Aug. 18, 1981), at Section IV.B (Treatment as
Statutory Underwriter). In addition, only index-based ETFs are
eligible to participate in the MQP. The Exchange notes that the
prices of ETFs are generally linked back to the underlying
securities and that the ETF trust structure acts as an insulating
wall between market maker and product. See Notice, supra note 4, at
77145, n.36.
\116\ Until FINRA files a proposed rule change to exempt
payments made pursuant to the MQP from FINRA Rule 5250 and the
proposed rule change becomes effective, receipt of payments pursuant
to the MQP by a market maker that is a FINRA member would be in
violation of FINRA Rule 5250.
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The Commission believes that it is reasonable and consistent with
the Act for the Exchange to limit the MQP to certain types of
securities to allow the Exchange, through a pilot, to assess whether
the Program will have the desired effect of improving the market
quality of these securities before implementing the Program on a wider
scale. The Commission believes that it is reasonable and consistent
with the Act for the Exchange to limit the MQP to products under the
1,000,000 ATV threshold, to support the Exchange's stated purpose to
provide market quality support to less frequently traded ETFs.
The Commission believes that the MQP Fees are an equitable
allocation of reasonable fees. First, participation in the MQP is
voluntary. An entity is free to determine whether it would be
economically desirable to pay the MQP Fee, given the amount of the fee,
the trading characteristics of the ETF (if applicable) and the
anticipated benefit. If an MQP Company chooses to participate in the
MQP with respect to an MQP Security, it will incur the Basic MQP Fee of
$50,000, and the MQP Company will have discretion to incur the
Supplemental MQP Fee in an amount up to an additional $50,000. The MQP
Fees will be paid for by the Sponsors associated with the MQP
Companies. Thus, the MQP Fees will be incurred and paid for by an
issuer and its sponsor, as applicable, that have chosen to participate
in, and that may potentially benefit from, the MQP.\117\ An entity that
chooses not to participate will not be required to pay any additional
fee beyond the standard listing fees. Further, the MQP Fees will be the
same for any MQP Company wishing to participate in the program.
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\117\ Issuers of ETFs registered under the 1940 Act are
prohibited from paying directly or indirectly for distribution of
their shares (i.e., directly or indirectly financing any activity
that is primarily intended to result in the sale of shares), unless
such payments are made pursuant to a plan that meets the
requirements of Rule 12b-1 under the 1940 Act. Although the services
at issue could be primarily intended to result in the sale of fund
shares, the Commission has stated that such a determination will
depend on the surrounding circumstances. See Payment of Asset-Based
Sales Loads by Registered Open-End Management Investment Companies,
Investment Company Act Release No. 16431 (June 13, 1988) (``1988
12b-1 Release''). As the Commission has noted previously, if a fund
makes payments that are ostensibly for a non-distribution purpose,
and the recipient of those payments finances distribution, the
question arises whether the fund's assets are being used indirectly
for distribution. The Commission has stated that there can be no
precise definition of what types of expenditures constitute indirect
use of fund assets, and this determination is based on the facts and
circumstances of each individual case. In addition, fund directors,
particularly independent directors bear substantial responsibility
for making that judgment. See Bearing of Distribution Expenses by
Mutual Funds, Investment Company Act Release No. 11414 (October 28,
1980).
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The Commission also believes that availability of the discretionary
Supplemental MQP Fee is consistent with the Act. Each MQP Company
participating in the MQP will have the choice of whether or not to
incur, as well as the exact amount (up to $50,000) of, the Supplemental
MQP Fee. Not all ETFs are alike, and trading in certain products may be
riskier or more costly
[[Page 18402]]
than trading in others. The Commission believes that it is reasonable
to allow each MQP Company to choose to participate in the Program and
to determine whether it is desirable to incentivize MQP Market Makers
through the Supplemental MQP Fee to improve the market quality of
certain MQP Securities. Further, as discussed above, the payment of the
Supplemental MQP Fee will be transparent to the marketplace, as this
information will be disclosed on the Exchange's Web site.\118\
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\118\ See supra note 38 and accompanying text.
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IV. Section 11(d)(1) of the Exchange Act
Section 11(d)(1) of the Exchange Act \119\ generally prohibits a
broker-dealer from extending or maintaining credit, or arranging for
the extension or maintenance of credit, on shares of new issue
securities, if the broker-dealer participated in the distribution of
the new issue securities within the preceding 30 days. The Commission's
view is that shares of open-end investment companies and unit
investment trusts registered under the 1940 Act, such as ETF shares,
are distributed in a continuous manner, and broker-dealers that sell
such securities are therefore participating in the ``distribution'' of
a new issue for purposes of Section 11(d)(1).\120\
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\119\ 15 U.S.C. 78k(d)(1).
\120\ See, e.g., Exchange Act Release Nos. 6726 (Feb. 8, 1962),
27 FR 1415 (Feb. 15, 1962) and 21577 (Dec. 18, 1984), 49 FR 50174
(Dec. 27, 1984).
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The Division of Trading and Markets, acting under delegated
authority, granted an exemption from Section 11(d)(1) and Rule 11d1-2
thereunder for broker-dealers that have entered into an agreement with
an ETF's distributor to place orders with the distributor to purchase
or redeem the ETF's shares (``Broker-Dealer APs).\121\ The SIA
Exemption allows a Broker-Dealer AP to extend or maintain credit, or
arrange for the extension or maintenance of credit, to or for customers
on the shares of qualifying ETFs subject to the condition that neither
the Broker-Dealer AP, nor any natural person associated with the
Broker-Dealer AP, directly or indirectly (including through any
affiliate of the Broker-Dealer AP), receives from the fund complex any
payment, compensation, or other economic incentive to promote or sell
the shares of the ETF to persons outside the fund complex, other than
non-cash compensation permitted under NASD Rule 2830(l)(5)(A), (B), or
(C). This condition is intended to eliminate special incentives that
Broker-Dealer APs and their associated persons might otherwise have to
``push'' ETF shares.
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\121\ See Letter from Catherine McGuire, Chief Counsel, Division
of Trading and Markets, Securities and Exchange Commission to
Securities Industry Association (Nov. 21, 2005) (``SIA Exemption'').
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The MQP will permit certain ETFs to voluntarily incur increased
listing fees payable to the Exchange. In turn, the Exchange will use
the fees to make incentive payments to market makers that improve the
liquidity of participating issuers' securities, and thus enhance the
market quality for the participating issuers. Incentives payments will
be accrued for, among other things, executing purchases and sales on
the Exchange. Receipt of the incentive payments by certain broker-
dealers will implicate the condition of the SIA Exemption from the new
issue lending restriction in Section 11(d)(1) of the Exchange Act
discussed above. The Commission's view is that the incentive payments
market makers will receive under the proposal are indirect payments
from the fund complex to the market maker and that those payments are
compensation to promote or sell the shares of the ETF. Therefore, a
market maker that also is a Broker-Dealer AP for an ETF (or an
associated person or an affiliate of a Broker-Dealer AP) that receives
the incentives will not be able to rely on the SIA Exemption from
Section 11(d)(1). This does not mean that Broker-Dealer APs cannot
participate in the MQP; it merely means they cannot rely on the SIA
Exemption while doing so. Thus, Broker-Dealer APs that participate in
the MQP will need to comply with Section 11(d)(1) unless there is
another applicable exemption.
V. Conclusion
It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\122\ that the proposed rule change (SR-NASDAQ-2012-137), as
modified by Amendment Nos. 1 and 3 thereto, be, and it hereby is,
approved.
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\122\ 15 U.S.C. 78s(b)(2).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\123\
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\123\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-06882 Filed 3-25-13; 8:45 am]
BILLING CODE 8011-01-P