Statement on Division of Trading and Markets Staff Fee Guidance

On May 21, 2019, the Division of Trading and Markets published staff guidance (“TM Staff Guidance”) to assist the national securities exchanges and FINRA (the “SROs”) in preparing fee filings for market data and other fees.[1]  Since the publication of the TM Staff Guidance, some questions have been raised about the nature of the TM Staff Guidance.  On September 13, 2018, I issued a statement explaining the important distinction between staff views, like the TM Staff Guidance, and Commission rules and regulations.[2]  I reiterate that distinction here.

• As the TM Staff Guidance states, it is a staff document that reflects the views of the staff of the Division of Trading and Markets.  It is not a rule, regulation, or statement of the Commission, and the Commission has neither approved nor disapproved the TM Staff Guidance.  The TM Staff Guidance was published by the Division of Trading and Markets, not by or on behalf of the Commission.
• The SRO rule filings related to fees addressed by the TM Staff Guidance are governed by Exchange Act Section 19(b), Exchange Act Rule 19b-4, and court decisions interpreting those provisions.[3]  Like all staff guidance, the TM Staff Guidance has no legal force or effect:  as it states, it does not alter or amend applicable law, and it creates no new or additional obligations for SROs or the Commission.
• The TM Staff Guidance discusses how the staff analyzes whether a proposed fee filing satisfies the applicable statutory and regulatory requirements, and it provides the staff’s views about various steps that the SROs may take in an effort to satisfy those requirements.  The SROs are required to comply with those statutory and regulatory requirements, and the TM Staff Guidance does not preclude SROs from taking other approaches to satisfy the legal requirements for fee filings for market data and other fees.