Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Related to Fees for Use of BATS Exchange, Inc., 41546-41549 [2011-17693]

Download as PDF 41546 Federal Register / Vol. 76, No. 135 / Thursday, July 14, 2011 / Notices number should be included on the subject line if e-mail 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 Web site (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 Web site 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. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–EDGX– 2011–19 and should be submitted on or before August 4, 2011. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.9 Cathy H. Ahn, Deputy Secretary. [FR Doc. 2011–17694 Filed 7–13–11; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–64847; File No. SR–BATS– 2011–019] Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Related to Fees for Use of BATS Exchange, Inc. wreier-aviles on DSKGBLS3C1PROD with NOTICES July 8, 2011. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 notice is hereby given that on July 1, 2011, BATS Exchange, Inc. (the ‘‘Exchange’’ or ‘‘BATS’’) 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 Exchange has designated the proposed rule change as one establishing or changing a member due, fee, or other charge imposed by the Exchange under Section 19(b)(3)(A)(ii) of the Act 3 and Rule 19b-4(f)(2) thereunder,4 which renders the proposed rule change effective upon filing with the Commission. 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 amend the fee schedule applicable to Members 5 and non-members of the Exchange pursuant to BATS Rules 15.1(a) and (c). Changes to the fee schedule pursuant to this proposal will be effective upon filing. The text of the proposed rule change is available at the Exchange’s Web site at https://www.batstrading.com, 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 parts of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose In addition to minor structural changes, the Exchange proposes to modify the fee schedule to: (i) Increase the standard fee to access the Exchange; (ii) introduce a tiered pricing structure applicable to the rebate for adding displayed liquidity to the Exchange’s order book, including the adoption of definitions relating to such pricing 3 15 U.S.C. 78s(b)(3)(A)(ii). CFR 240.19b–4(f)(2). 5 A Member is any registered broker or dealer that has been admitted to membership in the Exchange. 9 17 CFR 200.30–3(a)(12). 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. VerDate Mar<15>2010 14:55 Jul 13, 2011 4 17 Jkt 223001 PO 00000 Frm 00099 Fmt 4703 Sfmt 4703 structure; (iii) adopt a program, the ‘‘NBBO Setter Program,’’ which will provide an additional rebate specifically for orders that set the national best bid or offer (the ‘‘NBBO’’), subject to average daily volume requirements; (iv) reduce the rebate for adding non-displayed liquidity to the Exchange’s order book; (v) discontinue payment of a liquidity rebate for non-displayed orders that add liquidity to the Exchange and receive price improvement when executed; (vi) increase the standard routing fee for the CYCLE, RECYCLE, Parallel D and Parallel 2D routing strategies; 6 and (vii) make other modifications to certain other non-standard routing options and strategies. (i) Increase to Standard Access Fee The Exchange currently charges $0.0028 per share for all orders executed on the Exchange that remove liquidity from the Exchange. The Exchange proposes to increase the standard fee to remove liquidity from the Exchange to $0.0029 per share. Consistent with the current fee to remove liquidity, the charge per share for executions that remove liquidity from the Exchange will not apply to executions that remove liquidity in securities priced under $1.00 per share. The fee for such executions will remain at 0.10% of the total dollar value of the execution. Similarly, as is currently the case for the rebate for adding liquidity to the Exchange, there will be no liquidity rebate for adding liquidity in securities priced under $1.00 per share. (ii) Tiered Rebate Structure The Exchange currently rebates $0.0027 per share for orders that add displayed liquidity to the Exchange’s order book and are executed by the Exchange. The Exchange proposes to decrease the standard rebate for adding displayed liquidity to $0.0025 per share and to simultaneously adopt two volume-based tiers through which Members can realize higher rebates for adding displayed liquidity, as further described below. First, the Exchange proposes to provide a rebate of $0.0029 per share for orders that add displayed liquidity to the Exchange’s order book for any Member that has an average daily volume (‘‘ADV’’), as defined below, equal to or greater than 1.0% of total consolidated volume (‘‘TCV’’), also as defined below. Accordingly, the proposal will result in an increased rebate of $0.0002 for Members with an ADV of 1.0% of TCV or more. 6 As E:\FR\FM\14JYN1.SGM defined in BATS Rule 11.13. 14JYN1 wreier-aviles on DSKGBLS3C1PROD with NOTICES Federal Register / Vol. 76, No. 135 / Thursday, July 14, 2011 / Notices Second, the Exchange proposes to provide a rebate of $0.0027 per share for orders that add displayed liquidity to the Exchange’s order book where the Member has an ADV equal to or greater than 0.5% but less than 1.0% of average TCV. Thus, Members qualifying for the second tier will receive the same rebate for adding displayed liquidity as they do today. In addition, the Exchange proposes to adopt definitions for both ADV and TCV. For purposes of the fee schedule, the proposed definition of ADV is average daily volume calculated as the number of shares added or removed, combined, per day on a monthly basis. The Exchange proposes to make clear in the definition of ADV that routed shares are not included in the Exchange’s calculation of ADV, but rather, only volume executed on the Exchange counts towards a Member’s ADV. The Exchange also proposes to allow affiliated entities to aggregate their order flow for purposes of the Exchange’s determination of ADV with respect to pricing tiers if such entities provide prior notice to the Exchange. Specifically, to the extent two or more affiliated companies maintain separate memberships with the Exchange and can demonstrate their affiliation by showing they control, are controlled by, or are under common control with each other, the Exchange will permit such Members to count overall volume of the affiliates in calculating ADV. The Exchange will verify such affiliate using a Member’s Form BD, which lists control affiliates. Rather than basing its pricing structure on a static number of shares executed by a Member each day, the Exchange proposes to adopt its tiered pricing structure such that it is based on total consolidated volume, or TCV, and is thus variable based on overall volumes in the securities industry. As proposed, TCV is defined as total consolidated volume calculated as the volume reported by all exchanges and trade reporting facilities to a consolidated transaction reporting plan for the month for which the fees apply. To illustrate the Exchange’s application of TCV, if the overall volume of securities traded as reported by all exchanges and trade reporting facilities is 100 billion shares in a given month, this amount will be used as the TCV against which the Exchange’s tiered pricing will be measured for all trading activity during the month. The amount of overall TCV in the month will be divided by the number of trading days to determine average TCV; for instance, 100 billion shares divided by 20 trading days is an average TCV of 5 billion VerDate Mar<15>2010 14:55 Jul 13, 2011 Jkt 223001 shares per day. Using these volumes as an example, to reach the Exchange’s proposed tier of 1.0% of average TCV, and thus qualify for the higher rebate of $0.0029 per share, a Member would need to have an ADV of at least 50 million shares traded on the Exchange per day. If, in the next month, volumes doubled, and the TCV for the month was 200 billion shares, then a Member would need to have an ADV of at least 100 million shares traded on the Exchange per day to have an ADV equal to 1.0% of average TCV. The Exchange believes that basing its tiered pricing on TCV rather than a specific number of shares is a preferable measure of overall activity given the fluctuation of volumes in the securities industry. In conjunction with the adoption of these definitions, the Exchange proposes to move, but not to otherwise modify, the footnote on the Exchange’s current fee schedule defining ‘‘nondisplayed order types’’ as well as footnotes in the portion of the Exchange’s fee schedule applicable to BATS Options (as defined below) and physical connection charges. (iii) NBBO Setter Program Consistent with programs offered by the Exchange for its equity options platform (‘‘BATS Options’’) 7 and by the Exchange’s affiliated exchange, BATS YExchange, Inc. (‘‘BYX’’),8 the Exchange proposes to adopt a program to attract aggressively priced displayed liquidity by providing an additional rebate for orders that set the NBBO to Members that reach either of the volume-based rebate tiers described above. Specifically, the Exchange proposes to provide any Member with an ADV equal to or greater than 0.5% of TCV with an additional rebate of $0.0002 per share for displayed liquidity that sets the NBBO and is later executed on the Exchange. An order that is entered at the most aggressive price both on the Exchange’s order book and according to then current consolidated data from the applicable securities industry processor (‘‘SIP’’) will be determined to have set the national best bid or offer for purposes of the NBBO Setter Program without regard to whether a more 7 See Securities Exchange Act Release No. 63632 (January 3, 2011), 76 FR 1205 (January 7, 2011) (SR– BATS–2010–038) (adopting an NBBO Setter Rebate for BATS Options); see also Securities Exchange Act Release No. 64211 (April 6, 2011), 76 FR 20414 (April 12, 2011) (SR–BATS–2011–012) (modifying the NBBO Setter Program for BATS Options to include a volume requirement based on TCV). 8 See Securities Exchange Act Release No. 64429 (May 6, 2011), 76 FR 27694 (May 12, 2011) (SR– BYX–2011–008) (adopting an NBBO Setter Rebate for BYX). PO 00000 Frm 00100 Fmt 4703 Sfmt 4703 41547 aggressive order is entered prior to the original order being executed. (iv) Reduction of Rebate for NonDisplayed Orders As defined on the Exchange’s current fee schedule, ‘‘non-displayed liquidity’’ includes liquidity resulting from all forms of Pegged Orders,9 Mid-Point Peg Orders,10 and Non-Displayed Orders,11 but does not include liquidity resulting from Reserve Orders12 or Discretionary Orders.13 The Exchange currently provides a rebate of $0.0020 per share for non-displayed orders executed on the Exchange. Consistent with other aspects of this proposal that are intended to incent aggressively priced, displayed liquidity, the Exchange proposes to reduce the rebate that it provides for non-displayed orders to $0.0017 per share. (v) Discontinued Rebate for NonDisplayed Price Improved Orders As noted above, the Exchange currently provides a liquidity rebate of $0.0020 per share for all non-displayed orders that add liquidity to the Exchange’s order book and are executed by the Exchange. The Exchange recently received approval of a rule to allow nondisplayed orders that are not executable at their most aggressive price to be executed at one-half minimum price variation less aggressive than that price.14 Accordingly, such nondisplayed orders will receive price improvement upon execution. Because such orders will receive price improvement, the Exchange proposes to execute the orders without providing either a liquidity rebate or charging a fee. The Exchange believes that price improvement received for executions of non-displayed orders (rather than price improvement and a liquidity rebate) is appropriate because the price improvement received will offset the change in the fee structure for such orders. (vi) Increase to Fee for Standard Best Execution Routing Strategies The Exchange proposes to modify the fee charged by the Exchange for its CYCLE, RECYCLE, Parallel D and Parallel 2D routing strategies from $0.0028 per share to $0.0029 per share. To be consistent with this change, the Exchange proposes to charge 0.29%, rather than 0.28%, of the total dollar 9 As defined in BATS Rule 11.9(c)(8). defined in BATS Rule 11.9(c)(9). 11 As defined in BATS Rule 11.9(c)(11). 12 As defined in BATS Rule 11.9(c)(1). 13 As defined in BATS Rule 11.9(c)(10). 14 See Securities Exchange Act Release No. 64754 (June 27, 2011) (SR–BATS–2011–015). 10 As E:\FR\FM\14JYN1.SGM 14JYN1 41548 Federal Register / Vol. 76, No. 135 / Thursday, July 14, 2011 / Notices value of the execution for any security priced under $1.00 per share that is routed away from the Exchange through these strategies. wreier-aviles on DSKGBLS3C1PROD with NOTICES (vii) Other Modifications to NonStandard Routing Rates Various market centers, including the Exchange’s affiliate, BYX, are implementing certain pricing changes effective July 1, 2011. The Exchange proposes various changes to its routing strategies in connection with such changes so that fees charged and rebates provided reflect a direct pass-through of the fee charged or rebate received when routing directly to such market centers. For instance, the Exchange’s affiliate, BYX, is reducing the rebate paid for shares removed from BYX from $0.0003 per share to $0.0002 per share. Accordingly, the Exchange proposes to modify its Destination Specific Order; 15 to BYX, as well as its TRIM 16 and SLIM 17 routing strategies with respect to any executions at BYX, to pay a rebate of $0.0002 per share. The Exchange also proposes to modify its TRIM routing strategy to reflect the exact rate paid or assessed for executions at NASDAQ BX and EDGA Exchange, respectively. The Exchange currently identifies both of these venues as ‘‘low priced venues’’ and the Exchange does not charge or rebate its Members for orders routed to and executed by such venues. As proposed, the Exchange will pass on rebates that are paid by these venues in full. Specifically, the Exchange proposes to rebate $0.0014 per share for TRIM routed orders executed at NASDAQ BX, as this is the same rate paid by NASDAQ BX and is thus a direct passthrough. Similarly, the Exchange proposes to rebate $0.00015 per share for TRIM routed orders executed at EDGA Exchange, as this is, again, a direct pass-through of the rebate provided by EDGA Exchange. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6 of the Act.18 Specifically, the Exchange believes that the proposed rule change is consistent with Section 6(b)(4) of the Act,19 in that it provides for the equitable allocation 15 As defined in BATS Rule 11.9(c)(12). defined in BATS Rule 11.13(a)(3)(G). 17 As defined in BATS Rule 11.13(a)(3)(H). 18 15 U.S.C. 78f. 19 15 U.S.C. 78f(b)(4). 16 As VerDate Mar<15>2010 14:55 Jul 13, 2011 Jkt 223001 of reasonable dues, fees and other charges among members and other persons using any facility or system which the Exchange operates or controls. The Exchange notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive. The changes to Exchange execution fees and rebates proposed by this filing are intended to attract order flow to the Exchange by continuing to offer competitive pricing while also creating incentives to providing aggressively priced displayed liquidity. While Members that remove liquidity from the Exchange and/or route orders through the Exchange’s standard routing strategies will be paying higher fees due to the proposal, the increased revenue received by the Exchange will be used to fund programs that the Exchange believes will attract additional liquidity and thus improve the depth of liquidity available on the Exchange. Accordingly, the Exchange believes that the higher access and routing fees will benefit Members’ results in trading on the Exchange to the extent the tiered rebate structure adopted by the Exchange for adding liquidity and the adoption of the NBBO Setter Program incentivize liquidity providers to provide more aggressively priced liquidity. The Exchange believes that basing its tiered rebate structure on overall TCV, rather than a static number irrespective of overall volume in the securities industry, is a fair and equitable approach to pricing. Volume-based tiers such as the liquidity rebate tiers proposed in this filing have been widely adopted in the equities markets, and are equitable and not unreasonably discriminatory because they are open to all members on an equal basis and provide rebates that are reasonably related to the value to an exchange’s market quality associated with higher levels of market activity, such as higher levels of liquidity provision and introduction of higher volumes of orders into the price and volume discovery process. Accordingly, the Exchange believes that the proposal is not unreasonably discriminatory because it is consistent with the overall goals of enhancing market quality. The proposed modification to the Exchange’s rebate structure will have variable affects on Members of the Exchange, dependent on the volume of transaction activity they conduct on the Exchange. The Exchange notes that Members with current volumes meeting the ADV tier of 0.5% to 1.0% of TCV will not be impacted by any decrease in PO 00000 Frm 00101 Fmt 4703 Sfmt 4703 rebates. Further, Members with current volumes equal to or exceeding 1.0% of TCV will receive larger rebates than they currently receive. Despite the decrease in rebate for all other Members, the Exchange believes that its proposed fee structure is fair and equitable as the Exchange’s standard rebate still remains higher than standard rebates paid by other markets with similar fee structures, such as NYSE Arca and Nasdaq. The proposed language permitting aggregation of volume amongst corporate affiliates for purposes of the ADV calculation is intended to avoid disparate treatment of firms that have divided their various business activities between separate corporate entities as compared to firms that operate those business activities within a single corporate entity. By way of example, many firms that are Members of the Exchange operate several different business lines within the same corporate entity. In contrast, other firms may be part of a corporate structure that separates those business lines into different corporate affiliates, either for business, compliance or historical reasons. Those corporate affiliates, in turn, are required to maintain separate memberships with the Exchange in order to access the Exchange. Absent the proposed policy, such corporate affiliates would not receive the same treatment as firms operating similar business lines within a single entity that is a Member of the Exchange. Accordingly, the Exchange believes that its proposed policy is fair and equitable, and not unreasonably discriminatory. In addition to ensuring fair and equal treatment of its Members, the Exchange does not want to create incentives for its Members to restructure their business operations or compliance functions simply due to the Exchange’s pricing structure. Additionally, the Exchange believes that the proposed NBBO Setter Rebate, similar to rebates now offered on BATS Options for six months and on the Exchange’s affiliate, BYX, for two months, will incentivize the entry of more aggressive orders that will create tighter spreads, benefitting both Members and public investors. The Exchange further believes that conditioning a Member’s ability to receive the NBBO Setter Rebate on reaching one of the Exchange’s volume tiers is consistent with the Act for the reasons described above with respect to volume-based tiers generally. The Exchange believes that the elimination of a rebate for executions of non-displayed orders that receive price improvement is appropriate because the E:\FR\FM\14JYN1.SGM 14JYN1 Federal Register / Vol. 76, No. 135 / Thursday, July 14, 2011 / Notices price improvement received will offset the change in the fee structure for such orders. The Exchange believes that if it provided both a rebate and price improvement for such executions the Exchange would be overly incentivizing hidden liquidity, which is contrary to the goals of this proposal. Further, the Exchange believes that reducing the standard rebate for non-displayed liquidity is beneficial to market participants including public investors, as this change, too, allows the Exchange to provide additional incentives for displayed liquidity. Finally, the Exchange believes that the proposed changes to the Exchange’s non-standard routing fees and strategies are competitive, fair and reasonable, and non-discriminatory in that they are designed to mirror the cost and/or rebate applicable to the execution if such routed orders were executed directly by the Member at each away market. B. Self-Regulatory Organization’s Statement on Burden on Competition The Exchange does not believe that the proposed rule change imposes any burden on competition. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were solicited or received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action wreier-aviles on DSKGBLS3C1PROD with NOTICES Pursuant to Section 19(b)(3)(A)(ii) of the Act 20 and Rule 19b–4(f)(2) thereunder,21 the Exchange has designated this proposal as establishing or changing a due, fee, or other charge applicable to the Exchange’s Members and non-members, which renders the proposed rule change effective upon filing. 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 necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. 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: SECURITIES AND EXCHANGE COMMISSION Electronic Comments • Use the Commission’s Internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an e-mail to rulecomments@sec.gov. Please include File Number SR–BATS–2011–019 on the subject line. [Release No. 64845; File No. SR–Phlx–2011– 90] Self-Regulatory Organizations; Notice of Filing of Proposed Rule Change by NASDAQ OMX PHLX LLC Relating to Board of Director Qualifications July 8, 2011. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 • Send paper comments in triplicate (‘‘Act’’),1 and Rule 19b–4 thereunder,2 to Elizabeth M. Murphy, Secretary, notice is hereby given that on June 30, Securities and Exchange Commission, 2011, NASDAQ OMX PHLX LLC 100 F Street, NE., Washington, DC (‘‘Phlx’’ or ‘‘Exchange’’) filed with the 20549–1090. Securities and Exchange Commission All submissions should refer to File (‘‘Commission’’) the proposed rule Number SR–BATS–2011–019. This file change as described in Items I, II, and number should be included on the III below, which Items have been subject line if e-mail is used. To help the prepared by the Exchange. The Commission process and review your Commission is publishing this notice to comments more efficiently, please use solicit comments on the proposed rule only one method. The Commission will change from interested persons. post all comments on the Commission’s I. Self-Regulatory Organization’s Internet Web site (https://www.sec.gov/ rules/sro/shtml). Copies of the Statement of the Terms of Substance of submission, all subsequent the Proposed Rule Change amendments, all written statements The Exchange, pursuant to Section with respect to the proposed rule 19(b)(1) of the Act 3 and Rule 19b–4 change that are filed with the thereunder,4 proposes to amend Commission, and all written Exchange By-Law Article III, Section 3– communications relating to the 2 regarding Board of Director proposed rule change between the Commission and any person, other than qualifications. those that may be withheld from the The text of the proposed rule change public in accordance with the is available on the Exchange’s Web site provisions of 5 U.S.C. 552, will be at https://www.nasdaqtrader.com/ available for Web site viewing and micro.aspx?id=PHLXRulefilings, at the printing in the Commission’s Public principal office of the Exchange, and at Reference Room, 100 F Street, NE., the Commission’s Public Reference Washington, DC 20549, on official Room. business days between the hours of 10 a.m. and 3 p.m. Copies of such filing II. Self-Regulatory Organization’s will also be available for inspection and Statement of the Purpose of, and copying at the principal office of the Statutory Basis for, the Proposed Rule Exchange. All comments received will Change be posted without change; the In its filing with the Commission, the Commission does not edit personal Exchange included statements identifying information from submissions. You should submit only concerning the purpose of and basis for information that you wish to make the proposed rule change and discussed available publicly. All submissions any comments it received on the should refer to File No. SR–BATS– proposed rule change. The text of these 2011–019 and should be submitted on statements may be examined at the or before August 4, 2011. places specified in Item IV below. The Exchange has prepared summaries, set For the Commission, by the Division of Trading and Markets, pursuant to delegated forth in sections A, B, and C below, of authority.22 the most significant aspects of such Cathy H. Ahn, statements. Paper Comments Deputy Secretary. 21 17 [FR Doc. 2011–17693 Filed 7–13–11; 8:45 am] 1 15 BILLING CODE 8011–01–P 20 15 2 17 U.S.C. 78s(b)(3)(A)(ii). CFR 240.19b–4(f)(2). VerDate Mar<15>2010 14:55 Jul 13, 2011 22 17 Jkt 223001 41549 PO 00000 CFR 200.30–3(a)(12). Frm 00102 Fmt 4703 Sfmt 4703 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 15 U.S.C. 78s(b)(1). 4 17 CFR 240.19b–4. E:\FR\FM\14JYN1.SGM 14JYN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 76, Number 135 (Thursday, July 14, 2011)]
[Notices]
[Pages 41546-41549]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17693]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-64847; File No. SR-BATS-2011-019]

Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change Related to
Fees for Use of BATS Exchange, Inc.

July 8, 2011.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on July 1, 2011, BATS Exchange, Inc. (the ``Exchange'' or ``BATS'')
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 Exchange has designated
the proposed rule change as one establishing or changing a member due,
fee, or other charge imposed by the Exchange under Section
19(b)(3)(A)(ii) of the Act \3\ and Rule 19b-4(f)(2) thereunder,\4\
which renders the proposed rule change effective upon filing with the
Commission. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 15 U.S.C. 78s(b)(3)(A)(ii).
\4\ 17 CFR 240.19b-4(f)(2).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

The Exchange proposes amend the fee schedule applicable to Members
\5\ and non-members of the Exchange pursuant to BATS Rules 15.1(a) and
(c). Changes to the fee schedule pursuant to this proposal will be
effective upon filing.
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\5\ A Member is any registered broker or dealer that has been
admitted to membership in the Exchange.
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The text of the proposed rule change is available at the Exchange's
Web site at https://www.batstrading.com, 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 parts of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
In addition to minor structural changes, the Exchange proposes to
modify the fee schedule to: (i) Increase the standard fee to access the
Exchange; (ii) introduce a tiered pricing structure applicable to the
rebate for adding displayed liquidity to the Exchange's order book,
including the adoption of definitions relating to such pricing
structure; (iii) adopt a program, the ``NBBO Setter Program,'' which
will provide an additional rebate specifically for orders that set the
national best bid or offer (the ``NBBO''), subject to average daily
volume requirements; (iv) reduce the rebate for adding non-displayed
liquidity to the Exchange's order book; (v) discontinue payment of a
liquidity rebate for non-displayed orders that add liquidity to the
Exchange and receive price improvement when executed; (vi) increase the
standard routing fee for the CYCLE, RECYCLE, Parallel D and Parallel 2D
routing strategies; \6\ and (vii) make other modifications to certain
other non-standard routing options and strategies.
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\6\ As defined in BATS Rule 11.13.
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(i) Increase to Standard Access Fee
The Exchange currently charges $0.0028 per share for all orders
executed on the Exchange that remove liquidity from the Exchange. The
Exchange proposes to increase the standard fee to remove liquidity from
the Exchange to $0.0029 per share. Consistent with the current fee to
remove liquidity, the charge per share for executions that remove
liquidity from the Exchange will not apply to executions that remove
liquidity in securities priced under $1.00 per share. The fee for such
executions will remain at 0.10% of the total dollar value of the
execution. Similarly, as is currently the case for the rebate for
adding liquidity to the Exchange, there will be no liquidity rebate for
adding liquidity in securities priced under $1.00 per share.
(ii) Tiered Rebate Structure
The Exchange currently rebates $0.0027 per share for orders that
add displayed liquidity to the Exchange's order book and are executed
by the Exchange. The Exchange proposes to decrease the standard rebate
for adding displayed liquidity to $0.0025 per share and to
simultaneously adopt two volume-based tiers through which Members can
realize higher rebates for adding displayed liquidity, as further
described below.
First, the Exchange proposes to provide a rebate of $0.0029 per
share for orders that add displayed liquidity to the Exchange's order
book for any Member that has an average daily volume (``ADV''), as
defined below, equal to or greater than 1.0% of total consolidated
volume (``TCV''), also as defined below. Accordingly, the proposal will
result in an increased rebate of $0.0002 for Members with an ADV of
1.0% of TCV or more.

[[Page 41547]]

Second, the Exchange proposes to provide a rebate of $0.0027 per
share for orders that add displayed liquidity to the Exchange's order
book where the Member has an ADV equal to or greater than 0.5% but less
than 1.0% of average TCV. Thus, Members qualifying for the second tier
will receive the same rebate for adding displayed liquidity as they do
today.
In addition, the Exchange proposes to adopt definitions for both
ADV and TCV. For purposes of the fee schedule, the proposed definition
of ADV is average daily volume calculated as the number of shares added
or removed, combined, per day on a monthly basis. The Exchange proposes
to make clear in the definition of ADV that routed shares are not
included in the Exchange's calculation of ADV, but rather, only volume
executed on the Exchange counts towards a Member's ADV. The Exchange
also proposes to allow affiliated entities to aggregate their order
flow for purposes of the Exchange's determination of ADV with respect
to pricing tiers if such entities provide prior notice to the Exchange.
Specifically, to the extent two or more affiliated companies maintain
separate memberships with the Exchange and can demonstrate their
affiliation by showing they control, are controlled by, or are under
common control with each other, the Exchange will permit such Members
to count overall volume of the affiliates in calculating ADV. The
Exchange will verify such affiliate using a Member's Form BD, which
lists control affiliates.
Rather than basing its pricing structure on a static number of
shares executed by a Member each day, the Exchange proposes to adopt
its tiered pricing structure such that it is based on total
consolidated volume, or TCV, and is thus variable based on overall
volumes in the securities industry. As proposed, TCV is defined as
total consolidated volume calculated as the volume reported by all
exchanges and trade reporting facilities to a consolidated transaction
reporting plan for the month for which the fees apply. To illustrate
the Exchange's application of TCV, if the overall volume of securities
traded as reported by all exchanges and trade reporting facilities is
100 billion shares in a given month, this amount will be used as the
TCV against which the Exchange's tiered pricing will be measured for
all trading activity during the month. The amount of overall TCV in the
month will be divided by the number of trading days to determine
average TCV; for instance, 100 billion shares divided by 20 trading
days is an average TCV of 5 billion shares per day. Using these volumes
as an example, to reach the Exchange's proposed tier of 1.0% of average
TCV, and thus qualify for the higher rebate of $0.0029 per share, a
Member would need to have an ADV of at least 50 million shares traded
on the Exchange per day. If, in the next month, volumes doubled, and
the TCV for the month was 200 billion shares, then a Member would need
to have an ADV of at least 100 million shares traded on the Exchange
per day to have an ADV equal to 1.0% of average TCV. The Exchange
believes that basing its tiered pricing on TCV rather than a specific
number of shares is a preferable measure of overall activity given the
fluctuation of volumes in the securities industry.
In conjunction with the adoption of these definitions, the Exchange
proposes to move, but not to otherwise modify, the footnote on the
Exchange's current fee schedule defining ``non-displayed order types''
as well as footnotes in the portion of the Exchange's fee schedule
applicable to BATS Options (as defined below) and physical connection
charges.
(iii) NBBO Setter Program
Consistent with programs offered by the Exchange for its equity
options platform (``BATS Options'') \7\ and by the Exchange's
affiliated exchange, BATS Y-Exchange, Inc. (``BYX''),\8\ the Exchange
proposes to adopt a program to attract aggressively priced displayed
liquidity by providing an additional rebate for orders that set the
NBBO to Members that reach either of the volume-based rebate tiers
described above. Specifically, the Exchange proposes to provide any
Member with an ADV equal to or greater than 0.5% of TCV with an
additional rebate of $0.0002 per share for displayed liquidity that
sets the NBBO and is later executed on the Exchange.
---------------------------------------------------------------------------

\7\ See Securities Exchange Act Release No. 63632 (January 3,
2011), 76 FR 1205 (January 7, 2011) (SR-BATS-2010-038) (adopting an
NBBO Setter Rebate for BATS Options); see also Securities Exchange
Act Release No. 64211 (April 6, 2011), 76 FR 20414 (April 12, 2011)
(SR-BATS-2011-012) (modifying the NBBO Setter Program for BATS
Options to include a volume requirement based on TCV).
\8\ See Securities Exchange Act Release No. 64429 (May 6, 2011),
76 FR 27694 (May 12, 2011) (SR-BYX-2011-008) (adopting an NBBO
Setter Rebate for BYX).
---------------------------------------------------------------------------

An order that is entered at the most aggressive price both on the
Exchange's order book and according to then current consolidated data
from the applicable securities industry processor (``SIP'') will be
determined to have set the national best bid or offer for purposes of
the NBBO Setter Program without regard to whether a more aggressive
order is entered prior to the original order being executed.
(iv) Reduction of Rebate for Non-Displayed Orders
As defined on the Exchange's current fee schedule, ``non-displayed
liquidity'' includes liquidity resulting from all forms of Pegged
Orders,\9\ Mid-Point Peg Orders,\10\ and Non-Displayed Orders,\11\ but
does not include liquidity resulting from Reserve Orders\12\ or
Discretionary Orders.\13\ The Exchange currently provides a rebate of
$0.0020 per share for non-displayed orders executed on the Exchange.
Consistent with other aspects of this proposal that are intended to
incent aggressively priced, displayed liquidity, the Exchange proposes
to reduce the rebate that it provides for non-displayed orders to
$0.0017 per share.
---------------------------------------------------------------------------

\9\ As defined in BATS Rule 11.9(c)(8).
\10\ As defined in BATS Rule 11.9(c)(9).
\11\ As defined in BATS Rule 11.9(c)(11).
\12\ As defined in BATS Rule 11.9(c)(1).
\13\ As defined in BATS Rule 11.9(c)(10).
---------------------------------------------------------------------------

(v) Discontinued Rebate for Non-Displayed Price Improved Orders
As noted above, the Exchange currently provides a liquidity rebate
of $0.0020 per share for all non-displayed orders that add liquidity to
the Exchange's order book and are executed by the Exchange. The
Exchange recently received approval of a rule to allow non-displayed
orders that are not executable at their most aggressive price to be
executed at one-half minimum price variation less aggressive than that
price.\14\ Accordingly, such non-displayed orders will receive price
improvement upon execution. Because such orders will receive price
improvement, the Exchange proposes to execute the orders without
providing either a liquidity rebate or charging a fee. The Exchange
believes that price improvement received for executions of non-
displayed orders (rather than price improvement and a liquidity rebate)
is appropriate because the price improvement received will offset the
change in the fee structure for such orders.
---------------------------------------------------------------------------

\14\ See Securities Exchange Act Release No. 64754 (June 27,
2011) (SR-BATS-2011-015).
---------------------------------------------------------------------------

(vi) Increase to Fee for Standard Best Execution Routing Strategies
The Exchange proposes to modify the fee charged by the Exchange for
its CYCLE, RECYCLE, Parallel D and Parallel 2D routing strategies from
$0.0028 per share to $0.0029 per share. To be consistent with this
change, the Exchange proposes to charge 0.29%, rather than 0.28%, of
the total dollar

[[Page 41548]]

value of the execution for any security priced under $1.00 per share
that is routed away from the Exchange through these strategies.
(vii) Other Modifications to Non-Standard Routing Rates
Various market centers, including the Exchange's affiliate, BYX,
are implementing certain pricing changes effective July 1, 2011. The
Exchange proposes various changes to its routing strategies in
connection with such changes so that fees charged and rebates provided
reflect a direct pass-through of the fee charged or rebate received
when routing directly to such market centers. For instance, the
Exchange's affiliate, BYX, is reducing the rebate paid for shares
removed from BYX from $0.0003 per share to $0.0002 per share.
Accordingly, the Exchange proposes to modify its Destination Specific
Order; \15\ to BYX, as well as its TRIM \16\ and SLIM \17\ routing
strategies with respect to any executions at BYX, to pay a rebate of
$0.0002 per share. The Exchange also proposes to modify its TRIM
routing strategy to reflect the exact rate paid or assessed for
executions at NASDAQ BX and EDGA Exchange, respectively. The Exchange
currently identifies both of these venues as ``low priced venues'' and
the Exchange does not charge or rebate its Members for orders routed to
and executed by such venues. As proposed, the Exchange will pass on
rebates that are paid by these venues in full. Specifically, the
Exchange proposes to rebate $0.0014 per share for TRIM routed orders
executed at NASDAQ BX, as this is the same rate paid by NASDAQ BX and
is thus a direct pass-through. Similarly, the Exchange proposes to
rebate $0.00015 per share for TRIM routed orders executed at EDGA
Exchange, as this is, again, a direct pass-through of the rebate
provided by EDGA Exchange.
---------------------------------------------------------------------------

\15\ As defined in BATS Rule 11.9(c)(12).
\16\ As defined in BATS Rule 11.13(a)(3)(G).
\17\ As defined in BATS Rule 11.13(a)(3)(H).
---------------------------------------------------------------------------

2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with the requirements of the Act and the rules and regulations
thereunder that are applicable to a national securities exchange, and,
in particular, with the requirements of Section 6 of the Act.\18\
Specifically, the Exchange believes that the proposed rule change is
consistent with Section 6(b)(4) of the Act,\19\ in that it provides for
the equitable allocation of reasonable dues, fees and other charges
among members and other persons using any facility or system which the
Exchange operates or controls. The Exchange notes that it operates in a
highly competitive market in which market participants can readily
direct order flow to competing venues if they deem fee levels at a
particular venue to be excessive.
---------------------------------------------------------------------------

\18\ 15 U.S.C. 78f.
\19\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

The changes to Exchange execution fees and rebates proposed by this
filing are intended to attract order flow to the Exchange by continuing
to offer competitive pricing while also creating incentives to
providing aggressively priced displayed liquidity. While Members that
remove liquidity from the Exchange and/or route orders through the
Exchange's standard routing strategies will be paying higher fees due
to the proposal, the increased revenue received by the Exchange will be
used to fund programs that the Exchange believes will attract
additional liquidity and thus improve the depth of liquidity available
on the Exchange. Accordingly, the Exchange believes that the higher
access and routing fees will benefit Members' results in trading on the
Exchange to the extent the tiered rebate structure adopted by the
Exchange for adding liquidity and the adoption of the NBBO Setter
Program incentivize liquidity providers to provide more aggressively
priced liquidity.
The Exchange believes that basing its tiered rebate structure on
overall TCV, rather than a static number irrespective of overall volume
in the securities industry, is a fair and equitable approach to
pricing. Volume-based tiers such as the liquidity rebate tiers proposed
in this filing have been widely adopted in the equities markets, and
are equitable and not unreasonably discriminatory because they are open
to all members on an equal basis and provide rebates that are
reasonably related to the value to an exchange's market quality
associated with higher levels of market activity, such as higher levels
of liquidity provision and introduction of higher volumes of orders
into the price and volume discovery process. Accordingly, the Exchange
believes that the proposal is not unreasonably discriminatory because
it is consistent with the overall goals of enhancing market quality.
The proposed modification to the Exchange's rebate structure will
have variable affects on Members of the Exchange, dependent on the
volume of transaction activity they conduct on the Exchange. The
Exchange notes that Members with current volumes meeting the ADV tier
of 0.5% to 1.0% of TCV will not be impacted by any decrease in rebates.
Further, Members with current volumes equal to or exceeding 1.0% of TCV
will receive larger rebates than they currently receive. Despite the
decrease in rebate for all other Members, the Exchange believes that
its proposed fee structure is fair and equitable as the Exchange's
standard rebate still remains higher than standard rebates paid by
other markets with similar fee structures, such as NYSE Arca and
Nasdaq.
The proposed language permitting aggregation of volume amongst
corporate affiliates for purposes of the ADV calculation is intended to
avoid disparate treatment of firms that have divided their various
business activities between separate corporate entities as compared to
firms that operate those business activities within a single corporate
entity. By way of example, many firms that are Members of the Exchange
operate several different business lines within the same corporate
entity. In contrast, other firms may be part of a corporate structure
that separates those business lines into different corporate
affiliates, either for business, compliance or historical reasons.
Those corporate affiliates, in turn, are required to maintain separate
memberships with the Exchange in order to access the Exchange. Absent
the proposed policy, such corporate affiliates would not receive the
same treatment as firms operating similar business lines within a
single entity that is a Member of the Exchange. Accordingly, the
Exchange believes that its proposed policy is fair and equitable, and
not unreasonably discriminatory. In addition to ensuring fair and equal
treatment of its Members, the Exchange does not want to create
incentives for its Members to restructure their business operations or
compliance functions simply due to the Exchange's pricing structure.
Additionally, the Exchange believes that the proposed NBBO Setter
Rebate, similar to rebates now offered on BATS Options for six months
and on the Exchange's affiliate, BYX, for two months, will incentivize
the entry of more aggressive orders that will create tighter spreads,
benefitting both Members and public investors. The Exchange further
believes that conditioning a Member's ability to receive the NBBO
Setter Rebate on reaching one of the Exchange's volume tiers is
consistent with the Act for the reasons described above with respect to
volume-based tiers generally.
The Exchange believes that the elimination of a rebate for
executions of non-displayed orders that receive price improvement is
appropriate because the

[[Page 41549]]

price improvement received will offset the change in the fee structure
for such orders. The Exchange believes that if it provided both a
rebate and price improvement for such executions the Exchange would be
overly incentivizing hidden liquidity, which is contrary to the goals
of this proposal. Further, the Exchange believes that reducing the
standard rebate for non-displayed liquidity is beneficial to market
participants including public investors, as this change, too, allows
the Exchange to provide additional incentives for displayed liquidity.
Finally, the Exchange believes that the proposed changes to the
Exchange's non-standard routing fees and strategies are competitive,
fair and reasonable, and non-discriminatory in that they are designed
to mirror the cost and/or rebate applicable to the execution if such
routed orders were executed directly by the Member at each away market.

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

The Exchange does not believe that the proposed rule change imposes
any burden on competition.

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

No written comments were solicited or received.

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

Pursuant to Section 19(b)(3)(A)(ii) of the Act \20\ and Rule 19b-
4(f)(2) thereunder,\21\ the Exchange has designated this proposal as
establishing or changing a due, fee, or other charge applicable to the
Exchange's Members and non-members, which renders the proposed rule
change effective upon filing.
---------------------------------------------------------------------------

\20\ 15 U.S.C. 78s(b)(3)(A)(ii).
\21\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

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 necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.

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 e-mail to rule-comments@sec.gov. Please include
File Number SR-BATS-2011-019 on the subject line.

Paper Comments

Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-BATS-2011-019. This file
number should be included on the subject line if e-mail 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 Web site (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 Web site 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 such filing will also be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File No. SR-BATS-2011-019 and should be
submitted on or before August 4, 2011.

For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\22\
---------------------------------------------------------------------------

\22\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-17693 Filed 7-13-11; 8:45 am]
BILLING CODE 8011-01-P

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