May 1, 2018.
Notice is hereby given that the Securities and Exchange Commission (“Commission”), pursuant to Section 11A of the Securities Exchange Act of 1934 (“Act”),
and Rule 608 thereunder,
is summarily abrogating the Forty-Second Amendment to the Joint Self-Regulatory Organization Plan Governing the Collection, Consolidation and Dissemination of Quotation and Transaction Information for Nasdaq-Listed Securities Traded on Exchanges on an Unlisted Trading Privileges Basis (“Nasdaq/UTP Plan” or “Plan”).
On March 5, 2018 
the participants of the Plans (“Participants”) 
filed with the Commission a proposal to amend the Nasdaq/UTP Plan (“Amendment”), pursuant to Section 11A of the Act,
and Rule 608 thereunder.
The Amendment, which was effective upon filing pursuant to Rule 608(b)(3)(i) of Regulation NMS,
modified the Plan's fee schedule to adopt changes to the Nonprofessional Subscriber Enterprise Cap and Per Query Fees.
II. Description of the Amendment
A. Amendments to Enterprise Cap
The Amendment modified the Plan's fee schedule to increase the Nonprofessional Subscriber Enterprise Cap (“Enterprise Cap”) from $686,400 to $1,260,000. The Participants stated that as a result of industry consolidation, the non-professional subscriber base for entities subject to the Enterprise Cap may suddenly increase, and whereas before two entities may have benefited slightly from the Enterprise Cap, a combined entity could achieve a substantial decrease in fees by using the Enterprise Cap. Consequently, the Participants stated, the increase of the Enterprise Cap was designed to maintain the status quo and should not have, in conjunction with the Per-Query Fee change described below, resulted in an increase of revenue to the Plan or fees for any particular entity.
In addition, the Amendment modified the Plan to remove a provision relating to annual increases of the Enterprise Cap after a two-thirds vote of the Participants. In 2014 
the Participants amended the mechanism by which the Enterprise Cap would increase, from an automatic increase based on volume, to a requirement for an affirmative vote of the Participants. The Participants have not used this mechanism to increase the Enterprise Cap. The Participants believe that any future changes to the Enterprise Cap should be filed with the Commission and subject to public comment. Consequently, the Participants proposed to delete this provision.
B. Amendments to the Per-Query Fee
The Participants stated that because of the increase in the Enterprise Cap, there could have been broker-dealers that used the Enterprise Cap that, without a corresponding offset, could have faced an increase in fees. To offset the potential fee increase, the Amendment modified the text of the Plan's fee schedule to reduce the Plan's Per-Query Fee for broker-dealers with 500,000 or more non-professional subscribers from $.0075 to $.0025.
The Participants stated that by implementing a tiered structure for Per-Query Fees, the proposal was designed to provide an offset to those firms most likely affected by the Enterprise Cap increase (i.e., those with a large non-professional subscriber base). Additionally, the Participants stated that the proposal would align the tiered structures for Network C with those of Networks A and B.
Pursuant to Rule 608(b)(3)(i) under Regulation NMS,
the Participants designated the Amendment as establishing or changing a fee or other charge collected on their behalf in connection with access to, or use of, the facilities contemplated by the Plan. As a result, the Amendment was effective upon filing with the Commission. The Amendment was published for comment in the Federal Register on March 29, 2018.
III. Summary of Comments
The Commission received two comment letters in response to the Notice of Filing 
and a response thereto from the Participants.
In its comment letter, SIFMA stated that the information provided by the Participants in the Amendment with respect to, among other things, cost, revenue, and customer data, is insufficient to permit the Commission to determine whether the Amendment is consistent with the Act.
SIFMA stated that only the Participants, and not SIFMA or other market participants, possess the information necessary to Start Printed Page 20130evaluate the Amendment.
SIFMA also stated that, costs, and not revenue neutrality as the Participants suggest, is the relevant factor in assessing whether the Amendment is consistent with the Act.
Healthy Markets 
urged the Commission to summarily abrogate the Amendment on grounds that it is not appropriately justified, is discriminatory, and is contrary to the original purpose of the Enterprise Cap. Healthy Markets also stated that the Enterprise Cap should be eliminated as part of the broader process of modernizing the UTP fee schedules.
Specifically, Healthy Markets stated that the Participants failed to support their representations regarding industry consolidation and noted that the Amendment lacks any detailed justification or analysis.
In addition, Healthy Markets stated that the Participants' representation that the Amendment may be revenue neutral does not demonstrate that the Amendment is consistent with the Act whose goal is to protect the public interest by, amongst other things, promoting competition, the reasonable allocation of fees, and non-discrimination.
Healthy Markets also states that the Amendment is discriminatory, and that it adds complexity to an already complex process.
Lastly, Healthy Market stated that the Enterprise Cap should be eliminated as part of the broader process of modernizing the UTP fee schedules to simply allow for the non-discriminatory, consistent access and pricing of public market data.
In response, the Participants stated that the comments received are misguided or incorrect, and require no further response from the Participants.
In addition, the Participants stated that market participants have access to the information necessary to assess the impact of the Amendment on revenue,
asserting that data subscribers can readily apply the new fee schedule to their historical usage to project future usage and thereby determine whether the Participants' representations concerning the effect on revenue hold true.
The Participants also noted that only industry associations commented on the Amendment, and that individual market data subscribers could have commented on the Amendment had the Participants' analysis been incorrect.
Pursuant to Section 11A of the Act 
and Rule 608(b)(3)(iii) of Regulation NMS thereunder,
at any time within 60 days of the filing of any such amendment, the Commission may summarily abrogate the amendment and require that the amendment be re-filed in accordance with paragraph (a)(1) of Rule 608 
and reviewed in accordance with paragraph (b)(2) of Rule 608,
if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanisms of, a national market system or otherwise in furtherance of the purposes of the Act. The Commission is concerned that the information and justifications provided by the Participants are not sufficient for the Commission to determine whether the Amendment is consistent with the Act. Accordingly, the Commission believes that the procedures set forth in Rule 608(b)(2) 
will provide a more appropriate mechanism for determining whether the Amendment is consistent with the Act.
The Commission believes that the Amendment raises questions as to whether the changes will result in fees that are fair and reasonable, not unreasonably discriminatory,
and that will not impose an undue or inappropriate burden on competition under Section 11A of the Act.
The Commission does not believe that the Participants have provided sufficient information regarding, or adequate justification for, the changes described in the Amendment. While the Participants represent that they used certain data to calibrate the fee changes to achieve a revenue neutral outcome 
none of that data is provided in the Amendment, nor do the Participants provide any such information in their response.
The Commission is also concerned that the Participants provided little information concerning the basis for, the anticipated revenue effects of, and the effects on market participants from, the Amendment. The Participants have not provided sufficient information for the changes to be closely scrutinized for fairness and reasonableness and the Amendment lacks support for the basis of, as well as the application and likely effect of, the fees to determine that the Amendment is not unreasonably discriminatory.
In addition, the Participants did not provide information to support their assertion that the increase of the Enterprise Cap is designed to maintain the status quo and should not, in conjunction with the Per-Query fee changes, result in an increase of revenue to the Plan or of fees to any particular entity.
The Participants lowered the Per-Query fee for firms with at least 500,000 non-professional accounts. However the filing does not indicate why the Participants chose to limit the lower fee to firms that have 500,000 non-professional subscribers. The Participants state that the Amendment does not impose any burden on competition that is not necessary or appropriate because it is revenue neutral and maintains the status quo. Because the Participants did not provide the Commission with sufficient data to support their assertion that the fee change should not result in an increase of revenue to the Plan or to fees for any particular entity, however, the Commission is unable to evaluate the Participants' assertions that the Amendment does not impose any burden on competition that is not necessary or appropriate.
For the reasons stated above, the Commission believes it necessary or appropriate to summarily abrogate the Amendment and terminate its status as immediately effective. The Commission believes that the procedures set forth in Rule 608(b)(2) of Regulation NMS 
will provide a more appropriate mechanism for determining whether the Amendment is consistent with the Act. Therefore, the Commission believes that it is necessary or appropriate in the public interest, for the protection of investors, or the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanisms of, a national market system or otherwise in furtherance of the purposes of the Act, to summarily abrogate the Amendment.
Start Printed Page 20131
It is therefore ordered, pursuant to Section 11A of the Act,
and Rule 608 thereunder,
that the Forty-Second Amendment to the Nasdaq/UTP Plan (File No. S7-24-89) be, and hereby is, summarily abrogated. If the Participants choose to re-file the Amendment, they must do so pursuant to Section 11A of the Act and the Amendment must be re-filed in accordance with paragraph (a)(1) of Rule 608 of Regulation NMS 
for review in accordance with paragraph (b)(2) of Rule 608 of Regulation NMS.
By the Commission.
Brent J. Fields,
[FR Doc. 2018-09580 Filed 5-4-18; 8:45 am]
BILLING CODE 8011-01-P