Self-Regulatory Organizations; BATS Y-Exchange, Inc.; Order Granting Approval to Proposed Rule Change Amending the Attestation Requirement of Rule 11.24 Allowing a Retail Member Organization To Attest That “Substantially All” Orders Submitted to The Retail Price Improvement Program Will Qualify As “Retail Orders”, 33136-33138 [2013-13036]
Download as PDF
33136
Federal Register / Vol. 78, No. 106 / Monday, June 3, 2013 / Notices
Commission to waive the 30-day
operative delay, noting that doing so
would provide clarity as to what
functionality is offered by the Exchange
and would enable the Exchange’s rules
to immediately reflect the functionality
available on the Exchange. The
Exchange also notes that, since the
PNPLO Quotation functionality is not
actually available, its removal would
not have a negative effect on investors.
The Commission believes that waiving
the 30-day operative delay is consistent
with the protection of investors and the
public interest. Therefore, the
Commission hereby waives the 30-day
operative delay and designates the
proposal operative upon filing.14
At any time within 60 days of the
filing of such 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. If the
Commission takes such action, the
Commission shall institute proceedings
under Section 19(b)(2)(B) of the Act 15 to
determine whether the proposed rule
change should be approved or
disapproved.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
sroberts on DSK5SPTVN1PROD with NOTICES
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rulecomments@sec.gov. Please include File
Number SR–NYSEArca–2013–51 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–NYSEArca–2013–51. This
file number should be included on the
subject line if email is used. To help the
Commission process and review your
comments more efficiently, please use
14 For purposes only of waiving the 30-day
operative delay, the Commission has considered the
proposed rule’s impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
15 15 U.S.C. 78s(b)(2)(B).
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16:40 May 31, 2013
Jkt 229001
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 Section, 100 F Street NE.,
Washington, DC 20549–1090. Copies of
the filing will also be available for
inspection and copying at the NYSE’s
principal office and on its Internet Web
site at www.nyse.com. 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–
NYSEArca–2013–51 and should be
submitted on or before June 24, 2013.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.16
Kevin M. O’Neill,
Deputy Secretary.
[FR Doc. 2013–13035 Filed 5–31–13; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–69643; File Nos. SR–BYX–
2013–008]
Self-Regulatory Organizations; BATS
Y-Exchange, Inc.; Order Granting
Approval to Proposed Rule Change
Amending the Attestation Requirement
of Rule 11.24 Allowing a Retail Member
Organization To Attest That
‘‘Substantially All’’ Orders Submitted
to The Retail Price Improvement
Program Will Qualify As ‘‘Retail
Orders’’
May 28, 2013.
I. Introduction
On February 12, 2013, BATS YExchange, Inc. (the ‘‘Exchange’’ or
‘‘BYX’’) filed with the Securities and
Exchange Commission (‘‘Commission’’)
pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
16 17
PO 00000
CFR 200.30–3(a)(12).
Frm 00092
Fmt 4703
Sfmt 4703
(‘‘Act’’) 1 and Rule 19b-4 thereunder,2 a
proposed rule change to allow Retail
Member Organizations (‘‘RMOs’’) to
attest that ‘‘substantially all,’’ rather
than all, orders submitted to the Retail
Price Improvement Program
(‘‘Program’’) qualify as ‘‘Retail Orders.’’
The proposed rule change was
published for comment in the Federal
Register on March 1, 2013.3 The
Commission received one comment on
the proposal.4 On April 12, 2013, the
Commission extended the time for
Commission action on the proposed rule
change to May 30, 2013.5 The Exchange
submitted a response to the comment
letter on May 17, 2013.6 This order
approves the proposed rule change.
II. Description of the Proposal
The Exchange began operating its
Program after it was approved by the
Commission on a pilot basis in
November, 2012.7 Under the current
rules, a member organization that
wishes to participate in the Program as
a RMO must submit: (A) An application
form; (B) supporting documentation;
and (C) an attestation that ‘‘any order’’
submitted as a Retail Order 8 will
qualify as such under BYX Rule 11.24.
The proposal seeks to lessen the
attestation requirements of RMOs that
submit ‘‘Retail Orders’’ eligible to
receive potential price improvement
through participation in the Program.
Specifically, the Exchange proposes to
amend Rule 11.24 to provide that an
RMO may attest that ‘‘substantially
all’’—rather than all—of the orders it
submits to the Program are Retail Orders
as defined in Rule 11.24(a)(2).
The Exchange represented that it
believes the categorical nature of the
current ‘‘any order’’ attestation
requirement is preventing certain
member organizations with retail
1 15
U.S.C. 78s(b)(1).
CFR 240.19b-4.
3 See Securities Exchange Act Release No. 68975
(Feb. 25, 2013), 78 FR 13915.
4 See Letter to the Commission from Theodore R.
Lazo, Managing Director and Associate General
Counsel, Securities Industry and Financial Markets
Association (SIFMA), dated March 11, 2013.
5 See Securities Exchange Act Release No. 69369,
78 FR 23320 (April 18, 2013).
6 See Letter to the Commission from Eric J.
Swanson, Senior Vice-President and General
Counsel, BATS Y-Exchange, dated May 24, 2013
(‘‘Response Letter’’).
7 See Securities Exchange Act Release No. 68303
(November 27, 2012), 77 FR 71650 (December 3,
2012) (‘‘Program Approval Order’’).
8 A Retail Order is defined in Rule 11.24(a)(2) as
‘‘an agency order that originates from a natural
person and is submitted to the Exchange by a Retail
Member Organization, provided that no change is
made to the terms of the order with respect to price
or side of market and the order does not originate
from a trading algorithm or any other computerized
methodology.’’
2 17
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Federal Register / Vol. 78, No. 106 / Monday, June 3, 2013 / Notices
sroberts on DSK5SPTVN1PROD with NOTICES
customer business from participating in
the Program. According to the
Exchange, some of these member
organizations that wish to participate in
the Program represent both ‘‘Retail
Orders,’’ as defined in Rule 11.24(a)(2),
as well as other agency order flow that
may not meet the strict definition of
‘‘Retail Order.’’ The Exchange
understands that, due to technical
limitations in order management
systems and routing networks, such
member organizations may not be able
to fully segregate Retail Orders from
other agency, non-Retail Order flow. As
a result, the Exchange believes that
some member organizations have
chosen not to participate in the Program
because they cannot satisfy the current
categorical attestation requirement,
although they could satisfy the
proposed ‘‘substantially all’’
requirement.
The Exchange clarified in its proposal
that the ‘‘substantially all’’ standard is
meant to allow only de minimis
amounts of orders to participate in the
Program that do not meet the definition
of a Retail Order in Rule 11.24 and that
cannot be segregated from bona fide
Retail Orders due to systems limitations.
Under the proposal, the Exchange
would require that RMOs retain in their
books and records adequate
substantiation that substantially all
orders sent to the Exchange as Retail
Orders met the strict definition and that
those orders not meeting the strict
definition are agency orders that cannot
be segregated from Retail Orders due to
system limitations, and are de minimis
in terms of the overall number of Retail
Orders sent to the Exchange.9
III. Comment Letter and the Exchange’s
Response
The Commission received one
comment letter on the proposal. The
comment letter expressed concern over
the proposed ‘‘substantially all’’
attestation requirement primarily for
four reasons.
First, the comment letter questioned
whether the proposal would undermine
the rationale on which the Commission
approved the Retail Price Improvement
Program. According to the commenter,
when the Commission granted approval
of the Program, along with exemptive
relief in connection with the operation
of the Program, it did so with the
understanding that the Program would
service ‘‘only’’ retail order flow. To the
9 The Exchange noted in its Response Letter that
the Chicago Board Options Exchange, Incorporated
(‘‘CBOE’’), on behalf of the Exchange, will review
a member organization’s compliance with these
requirements. See Response Letter, supra note 6 at
3.
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16:40 May 31, 2013
Jkt 229001
extent the proposal would potentially
allow non-Retail Orders to receive price
improvement in the Program, the
commenter suggested that the
Commission should reexamine its
rationale for granting the exemptive
relief relating to the Program.
In response, the Exchange noted that
the proposed amendment is designed to
permit isolated and de minimis
quantities of agency orders that do not
qualify as Retail Orders to participate in
the Program because such orders cannot
be segregated from Retail Orders due to
systems limitations. The Exchange also
noted that several significant retail
brokers have chosen not to participate
in the Program currently because of the
categorical ‘‘any order’’ standard, and
that the proposed ‘‘substantially all’’
standard would allow the significant
amount of retail order flow represented
by these brokers the opportunity to
receive the benefits of the Program.
Additionally, the Exchange noted that
the Program is designed to replicate the
existing practices of broker-dealers that
internalize much of the market’s retail
order flow off-exchange, and that the
Program, as modified by the
‘‘substantially all’’ proposal, would offer
a competitive and more transparent
alternative to internalization.
Second, the commenter expressed its
belief that the Exchange did not
sufficiently explain why retail brokers
are not able to separate all Retail and
non-Retail Orders, and thereby satisfy
the current attestation requirement. The
commenter expressed its belief that the
Commission should require additional
explanation as to how retail brokers
could satisfy the proposed
‘‘substantially all’’ standard if they
could not satisfy the current standard,
including an analysis of the costs and
benefits to retail brokers of
implementing technology changes to
identify orders as Retail or non-Retail.
Furthermore, the commenter suggested
that the Exchange’s proposal is at odds
with the situation found in options
markets where exchanges and brokers
distinguish between public and
professional customers—a distinction
the commenter analogized to the Retail
v. non-Retail distinction.
The Exchange responded that several
retail brokers have explained that their
order flow is routed in aggregate for
retail execution purposes and that a de
minimis amount of such flow may have
been generated electronically, thus not
meeting the strict Retail Order
definition. According to the Exchange,
these retail brokers have chosen not to
direct any of their significant shares of
retail order flow to the Program because
the cost of complying with the current
PO 00000
Frm 00093
Fmt 4703
Sfmt 4703
33137
‘‘any order’’ standard, such as
implementing any necessary systems
changes, is too high. The Exchange
represented that the retail brokers have
indicated their willingness to comply
with the proposed ‘‘substantially all’’
standard, as well as their ability to
implement the proposed standard on
their systems with confidence. The
Exchange further responded that the
distinction between public and
professional customers in the options
market is not like distinction between
Retail and non-Retail Orders; the former
distinction turns on volume and is thus
an easier bright-line threshold to
implement, while the distinction
between Retail and non-Retail Orders
turns on whether the order originated
from a natural person, which imposes a
higher threshold for order flow
segmentation purposes.
Third, the commenter contended that
the proposed ‘‘substantially all’’
standard is overly vague. According to
the commenter, the Exchange’s
proposed guidance on what constitutes
‘‘substantially all’’ is so vague that it
could allow a material amount of nonretail order flow to qualify for the
Program. The commenter suggested that,
should the Commission approve the
proposal, it should first establish a
bright-line rule to define what
constitutes ‘‘substantially all’’ retail
order flow.10
The Exchange responded that the
proposal represents only a modest
modification of the attestation
requirement. In this respect, the
Exchange noted that the proposal would
permit only isolated and de minimis
quantities of agency orders to
participate in the Program that do not
satisfy the strict definition of a Retail
Order but that cannot be segregated
from Retail Orders due to systems
limitations. Furthermore, the Exchange
noted that an RMO’s compliance with
this requirement would be monitored
and subject to books and record-keeping
requirements.
Fourth, the commenter stated that the
proposal may cause an exponential
increase in monitoring and
recordkeeping burdens associated with
the Program. The commenter expressed
its belief that it could be especially
difficult for the Exchange not just to
identify non-retail order flow, but also
to monitor whether such flow exceeded
a de minimis amount. The commenter
also questioned whether the potential
difficulty of the Exchange monitoring its
10 The commenter cited one example where a ‘‘de
minimis’’ transaction is defined in 17 CFR
242.101(b)(7), in connection with a distribution of
securities, as ‘‘less than 2%.’’
E:\FR\FM\03JNN1.SGM
03JNN1
33138
Federal Register / Vol. 78, No. 106 / Monday, June 3, 2013 / Notices
Program might increase the likelihood
that members may be subject to unfair
discrimination in the Program’s
approval and disqualification process.
In response, the Exchange noted that
it will issue Trader Notices to provide
clear guidance on how the
‘‘substantially all’’ standard will be
implemented and monitored. The
Exchange also noted that the Program is
designed to attract as much retail order
flow as possible, and that, should RMOs
begin submitting substantial amounts of
non-retail order flow, liquidity
providers would become less willing to
participate in the Program. Finally, the
Exchange disagreed with the
commenter’s statement that a standard
that provides a de minimis number of
exceptions would be any harder to
enforce that a standard that permitted
no exceptions.
sroberts on DSK5SPTVN1PROD with NOTICES
IV. Discussion and Commission
Findings
After careful review of the proposal,
the comment letter received, and the
Exchange’s response, the Commission
finds 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.11 In
particular, the Commission finds that
the proposed rule change is consistent
with Section 6(b)(5) of the Act,12 which
requires, among other things, that the
rules of a national securities exchange
be designed to prevent fraudulent and
manipulative acts and practices, to
promote just and equitable principles of
trade, to foster cooperation and
coordination with persons engaged in
regulating, clearing, settling, processing
information with respect to, and
facilitating transactions in securities, 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 not be designed to
permit unfair discrimination between
customers, issuers, brokers or dealers.
The Commission finds that the
proposed ‘‘substantially all’’ standard is
a limited and sufficiently-defined
modification to the Program’s current
RMO attestation requirements that does
not constitute a significant departure
from the Program as initially approved
by the Commission.13 The proposal
11 In
approving the proposal, the Commission has
considered the proposed rule’s impact on
efficiency, competition, and capital formation. See
15 U.S.C. 78c(f).
12 15 U.S.C. 78f(b)(5).
13 The Commission notes that it approved the
Program on a pilot basis subject to ongoing
Commission review.
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16:40 May 31, 2013
Jkt 229001
makes clear that to comply with the
standard, RMOs may submit only
isolated and de minimis amounts of
agency orders that cannot be segregated
from Retail Orders due to systems
limitations.14 Furthermore, as the
Exchange noted, RMOs will need to
adequately document their compliance
with the ‘‘substantially all’’ standard in
their books and records. Specifically, an
RMO would need to retain adequate
documentation that substantially all
orders sent to the Exchange as Retail
Orders met that definition, and that
those orders not meeting that definition
are agency orders that cannot be
segregated from Retail Orders due to
system limitations, and are de minimis
in terms of the overall number of Retail
Orders sent to the Exchange. The
Commission also notes that the CBOE
will, on behalf of the Exchange, monitor
an RMO’s compliance with this
requirement.
Additionally, the Commission finds
that the Exchange has provided
adequate justification for the proposal.
The Exchange represented that, as
several significant retail brokers
explained to them, the current ‘‘any
order’’ standard is effectively
prohibitive, given the brokers’ order
flow aggregation and management
systems. The Exchange further
represented that these retail brokers
indicated their systems would allow
them to comply with the ‘‘substantially
all’’ standard, as proposed. By allowing
these retail brokers to participate in the
Program, the proposal could bring the
potential benefits of the Program,
including price improvement and
increased transparency,15 to the retail
order flow that these brokers
represent.16
14 While the Commission recognizes the potential
benefit of the commenter’s suggestion concerning a
bright-line definition of de minimis, see supra note
10, the Commission believes that, in light of the
facts surrounding the instant proposal, the
proposal, and the guidance that the Exchange will
provide to its members on this point, are
sufficiently clear. The Commission also notes that
the example the commenter cites is found in
Regulation M, which governs different
circumstances than those at issue here.
15 For a more detailed discussion of the Program’s
potential benefits, see Program Approval Order,
supra note 7.
16 The commenter also expressed concern that
this proposal may increase the burden upon the
Exchange in monitoring compliance with the
Program. The Commission finds that any potential
concerns raised by this assertion, which is disputed
by the Exchange, are outweighed by the potential
benefits of the proposal; namely, that the proposal
may allow more retail orders the opportunity to
participate in the Program and receive the attendant
benefits of the Program. With respect to the
commenter’s concern that members may be subject
to unfair discrimination in the approval and
disqualification process for participation in the
Program, the Commission notes that it previously
PO 00000
Frm 00094
Fmt 4703
Sfmt 4703
V. Conclusion
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act,17 that the
proposed rule change (SR–BYX–2013–
008) be, and hereby is, approved.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.18
Kevin M. O’Neill,
Deputy Secretary.
[FR Doc. 2013–13036 Filed 5–31–13; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–69642; File No. SR–OCC–
2013–05]
Self-Regulatory Organizations; The
Options Clearing Corporation; Notice
of Filing of Proposed Rule Change To
Provide That OCC, Rather Than an
Adjustment Panel of the Securities
Committee, Will Determine
Adjustments to the Terms of Options
Contracts to Account for Certain
Events, Such as Certain Dividend
Distributions or Other Corporate
Actions, That Affect the Underlying
Security or Other Underlying Interest
May 28, 2013.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Exchange Act’’),1 and Rule 19b–4
thereunder,2 notice is hereby given that
on May 15, 2013, The Options Clearing
Corporation (‘‘OCC’’) filed with the
Securities and Exchange Commission
(‘‘Commission’’) the proposed rule
change as described in Items I and II
below, which Items have been prepared
by OCC. The Commission is publishing
this notice to solicit comments on the
proposed rule change from interested
persons.
I. Clearing Agency’s Statement of the
Terms of Substance of the Proposed
Rule Change
OCC proposes to provide that OCC,
rather than an adjustment panel of the
Securities Committee, will determine
adjustments to the terms of options
contracts to account for certain events,
such as certain dividend distributions or
other corporate actions, that affect the
underlying security or other underlying
interest.
found that the Program’s provisions concerning the
certification, approval, and potential
disqualification of RMOs not inconsistent with the
Act. See Program Approval Order, supra note 7, at
note 41.
17 15 U.S.C. 78s(b)(2).
18 17 CFR 200.30–3(a)(12).
1 15 U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
E:\FR\FM\03JNN1.SGM
03JNN1
Agencies
[Federal Register Volume 78, Number 106 (Monday, June 3, 2013)]
[Notices]
[Pages 33136-33138]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13036]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-69643; File Nos. SR-BYX-2013-008]
Self-Regulatory Organizations; BATS Y-Exchange, Inc.; Order
Granting Approval to Proposed Rule Change Amending the Attestation
Requirement of Rule 11.24 Allowing a Retail Member Organization To
Attest That ``Substantially All'' Orders Submitted to The Retail Price
Improvement Program Will Qualify As ``Retail Orders''
May 28, 2013.
I. Introduction
On February 12, 2013, BATS Y-Exchange, Inc. (the ``Exchange'' or
``BYX'') filed with the Securities and Exchange Commission
(``Commission'') pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to allow Retail Member Organizations (``RMOs'') to
attest that ``substantially all,'' rather than all, orders submitted to
the Retail Price Improvement Program (``Program'') qualify as ``Retail
Orders.'' The proposed rule change was published for comment in the
Federal Register on March 1, 2013.\3\ The Commission received one
comment on the proposal.\4\ On April 12, 2013, the Commission extended
the time for Commission action on the proposed rule change to May 30,
2013.\5\ The Exchange submitted a response to the comment letter on May
17, 2013.\6\ This order approves the proposed rule change.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ See Securities Exchange Act Release No. 68975 (Feb. 25,
2013), 78 FR 13915.
\4\ See Letter to the Commission from Theodore R. Lazo, Managing
Director and Associate General Counsel, Securities Industry and
Financial Markets Association (SIFMA), dated March 11, 2013.
\5\ See Securities Exchange Act Release No. 69369, 78 FR 23320
(April 18, 2013).
\6\ See Letter to the Commission from Eric J. Swanson, Senior
Vice-President and General Counsel, BATS Y-Exchange, dated May 24,
2013 (``Response Letter'').
---------------------------------------------------------------------------
II. Description of the Proposal
The Exchange began operating its Program after it was approved by
the Commission on a pilot basis in November, 2012.\7\ Under the current
rules, a member organization that wishes to participate in the Program
as a RMO must submit: (A) An application form; (B) supporting
documentation; and (C) an attestation that ``any order'' submitted as a
Retail Order \8\ will qualify as such under BYX Rule 11.24.
---------------------------------------------------------------------------
\7\ See Securities Exchange Act Release No. 68303 (November 27,
2012), 77 FR 71650 (December 3, 2012) (``Program Approval Order'').
\8\ A Retail Order is defined in Rule 11.24(a)(2) as ``an agency
order that originates from a natural person and is submitted to the
Exchange by a Retail Member Organization, provided that no change is
made to the terms of the order with respect to price or side of
market and the order does not originate from a trading algorithm or
any other computerized methodology.''
---------------------------------------------------------------------------
The proposal seeks to lessen the attestation requirements of RMOs
that submit ``Retail Orders'' eligible to receive potential price
improvement through participation in the Program. Specifically, the
Exchange proposes to amend Rule 11.24 to provide that an RMO may attest
that ``substantially all''--rather than all--of the orders it submits
to the Program are Retail Orders as defined in Rule 11.24(a)(2).
The Exchange represented that it believes the categorical nature of
the current ``any order'' attestation requirement is preventing certain
member organizations with retail
[[Page 33137]]
customer business from participating in the Program. According to the
Exchange, some of these member organizations that wish to participate
in the Program represent both ``Retail Orders,'' as defined in Rule
11.24(a)(2), as well as other agency order flow that may not meet the
strict definition of ``Retail Order.'' The Exchange understands that,
due to technical limitations in order management systems and routing
networks, such member organizations may not be able to fully segregate
Retail Orders from other agency, non-Retail Order flow. As a result,
the Exchange believes that some member organizations have chosen not to
participate in the Program because they cannot satisfy the current
categorical attestation requirement, although they could satisfy the
proposed ``substantially all'' requirement.
The Exchange clarified in its proposal that the ``substantially
all'' standard is meant to allow only de minimis amounts of orders to
participate in the Program that do not meet the definition of a Retail
Order in Rule 11.24 and that cannot be segregated from bona fide Retail
Orders due to systems limitations. Under the proposal, the Exchange
would require that RMOs retain in their books and records adequate
substantiation that substantially all orders sent to the Exchange as
Retail Orders met the strict definition and that those orders not
meeting the strict definition are agency orders that cannot be
segregated from Retail Orders due to system limitations, and are de
minimis in terms of the overall number of Retail Orders sent to the
Exchange.\9\
---------------------------------------------------------------------------
\9\ The Exchange noted in its Response Letter that the Chicago
Board Options Exchange, Incorporated (``CBOE''), on behalf of the
Exchange, will review a member organization's compliance with these
requirements. See Response Letter, supra note 6 at 3.
---------------------------------------------------------------------------
III. Comment Letter and the Exchange's Response
The Commission received one comment letter on the proposal. The
comment letter expressed concern over the proposed ``substantially
all'' attestation requirement primarily for four reasons.
First, the comment letter questioned whether the proposal would
undermine the rationale on which the Commission approved the Retail
Price Improvement Program. According to the commenter, when the
Commission granted approval of the Program, along with exemptive relief
in connection with the operation of the Program, it did so with the
understanding that the Program would service ``only'' retail order
flow. To the extent the proposal would potentially allow non-Retail
Orders to receive price improvement in the Program, the commenter
suggested that the Commission should reexamine its rationale for
granting the exemptive relief relating to the Program.
In response, the Exchange noted that the proposed amendment is
designed to permit isolated and de minimis quantities of agency orders
that do not qualify as Retail Orders to participate in the Program
because such orders cannot be segregated from Retail Orders due to
systems limitations. The Exchange also noted that several significant
retail brokers have chosen not to participate in the Program currently
because of the categorical ``any order'' standard, and that the
proposed ``substantially all'' standard would allow the significant
amount of retail order flow represented by these brokers the
opportunity to receive the benefits of the Program. Additionally, the
Exchange noted that the Program is designed to replicate the existing
practices of broker-dealers that internalize much of the market's
retail order flow off-exchange, and that the Program, as modified by
the ``substantially all'' proposal, would offer a competitive and more
transparent alternative to internalization.
Second, the commenter expressed its belief that the Exchange did
not sufficiently explain why retail brokers are not able to separate
all Retail and non-Retail Orders, and thereby satisfy the current
attestation requirement. The commenter expressed its belief that the
Commission should require additional explanation as to how retail
brokers could satisfy the proposed ``substantially all'' standard if
they could not satisfy the current standard, including an analysis of
the costs and benefits to retail brokers of implementing technology
changes to identify orders as Retail or non-Retail. Furthermore, the
commenter suggested that the Exchange's proposal is at odds with the
situation found in options markets where exchanges and brokers
distinguish between public and professional customers--a distinction
the commenter analogized to the Retail v. non-Retail distinction.
The Exchange responded that several retail brokers have explained
that their order flow is routed in aggregate for retail execution
purposes and that a de minimis amount of such flow may have been
generated electronically, thus not meeting the strict Retail Order
definition. According to the Exchange, these retail brokers have chosen
not to direct any of their significant shares of retail order flow to
the Program because the cost of complying with the current ``any
order'' standard, such as implementing any necessary systems changes,
is too high. The Exchange represented that the retail brokers have
indicated their willingness to comply with the proposed ``substantially
all'' standard, as well as their ability to implement the proposed
standard on their systems with confidence. The Exchange further
responded that the distinction between public and professional
customers in the options market is not like distinction between Retail
and non-Retail Orders; the former distinction turns on volume and is
thus an easier bright-line threshold to implement, while the
distinction between Retail and non-Retail Orders turns on whether the
order originated from a natural person, which imposes a higher
threshold for order flow segmentation purposes.
Third, the commenter contended that the proposed ``substantially
all'' standard is overly vague. According to the commenter, the
Exchange's proposed guidance on what constitutes ``substantially all''
is so vague that it could allow a material amount of non-retail order
flow to qualify for the Program. The commenter suggested that, should
the Commission approve the proposal, it should first establish a
bright-line rule to define what constitutes ``substantially all''
retail order flow.\10\
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\10\ The commenter cited one example where a ``de minimis''
transaction is defined in 17 CFR 242.101(b)(7), in connection with a
distribution of securities, as ``less than 2%.''
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The Exchange responded that the proposal represents only a modest
modification of the attestation requirement. In this respect, the
Exchange noted that the proposal would permit only isolated and de
minimis quantities of agency orders to participate in the Program that
do not satisfy the strict definition of a Retail Order but that cannot
be segregated from Retail Orders due to systems limitations.
Furthermore, the Exchange noted that an RMO's compliance with this
requirement would be monitored and subject to books and record-keeping
requirements.
Fourth, the commenter stated that the proposal may cause an
exponential increase in monitoring and recordkeeping burdens associated
with the Program. The commenter expressed its belief that it could be
especially difficult for the Exchange not just to identify non-retail
order flow, but also to monitor whether such flow exceeded a de minimis
amount. The commenter also questioned whether the potential difficulty
of the Exchange monitoring its
[[Page 33138]]
Program might increase the likelihood that members may be subject to
unfair discrimination in the Program's approval and disqualification
process.
In response, the Exchange noted that it will issue Trader Notices
to provide clear guidance on how the ``substantially all'' standard
will be implemented and monitored. The Exchange also noted that the
Program is designed to attract as much retail order flow as possible,
and that, should RMOs begin submitting substantial amounts of non-
retail order flow, liquidity providers would become less willing to
participate in the Program. Finally, the Exchange disagreed with the
commenter's statement that a standard that provides a de minimis number
of exceptions would be any harder to enforce that a standard that
permitted no exceptions.
IV. Discussion and Commission Findings
After careful review of the proposal, the comment letter received,
and the Exchange's response, the Commission finds 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.\11\ In particular, the Commission finds that the
proposed rule change is consistent with Section 6(b)(5) of the Act,\12\
which requires, among other things, that the rules of a national
securities exchange be designed to prevent fraudulent and manipulative
acts and practices, to promote just and equitable principles of trade,
to foster cooperation and coordination with persons engaged in
regulating, clearing, settling, processing information with respect to,
and facilitating transactions in securities, 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 not be designed to permit unfair discrimination between
customers, issuers, brokers or dealers.
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\11\ In approving the proposal, the Commission has considered
the proposed rule's impact on efficiency, competition, and capital
formation. See 15 U.S.C. 78c(f).
\12\ 15 U.S.C. 78f(b)(5).
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The Commission finds that the proposed ``substantially all''
standard is a limited and sufficiently-defined modification to the
Program's current RMO attestation requirements that does not constitute
a significant departure from the Program as initially approved by the
Commission.\13\ The proposal makes clear that to comply with the
standard, RMOs may submit only isolated and de minimis amounts of
agency orders that cannot be segregated from Retail Orders due to
systems limitations.\14\ Furthermore, as the Exchange noted, RMOs will
need to adequately document their compliance with the ``substantially
all'' standard in their books and records. Specifically, an RMO would
need to retain adequate documentation that substantially all orders
sent to the Exchange as Retail Orders met that definition, and that
those orders not meeting that definition are agency orders that cannot
be segregated from Retail Orders due to system limitations, and are de
minimis in terms of the overall number of Retail Orders sent to the
Exchange. The Commission also notes that the CBOE will, on behalf of
the Exchange, monitor an RMO's compliance with this requirement.
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\13\ The Commission notes that it approved the Program on a
pilot basis subject to ongoing Commission review.
\14\ While the Commission recognizes the potential benefit of
the commenter's suggestion concerning a bright-line definition of de
minimis, see supra note 10, the Commission believes that, in light
of the facts surrounding the instant proposal, the proposal, and the
guidance that the Exchange will provide to its members on this
point, are sufficiently clear. The Commission also notes that the
example the commenter cites is found in Regulation M, which governs
different circumstances than those at issue here.
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Additionally, the Commission finds that the Exchange has provided
adequate justification for the proposal. The Exchange represented that,
as several significant retail brokers explained to them, the current
``any order'' standard is effectively prohibitive, given the brokers'
order flow aggregation and management systems. The Exchange further
represented that these retail brokers indicated their systems would
allow them to comply with the ``substantially all'' standard, as
proposed. By allowing these retail brokers to participate in the
Program, the proposal could bring the potential benefits of the
Program, including price improvement and increased transparency,\15\ to
the retail order flow that these brokers represent.\16\
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\15\ For a more detailed discussion of the Program's potential
benefits, see Program Approval Order, supra note 7.
\16\ The commenter also expressed concern that this proposal may
increase the burden upon the Exchange in monitoring compliance with
the Program. The Commission finds that any potential concerns raised
by this assertion, which is disputed by the Exchange, are outweighed
by the potential benefits of the proposal; namely, that the proposal
may allow more retail orders the opportunity to participate in the
Program and receive the attendant benefits of the Program. With
respect to the commenter's concern that members may be subject to
unfair discrimination in the approval and disqualification process
for participation in the Program, the Commission notes that it
previously found that the Program's provisions concerning the
certification, approval, and potential disqualification of RMOs not
inconsistent with the Act. See Program Approval Order, supra note 7,
at note 41.
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V. Conclusion
It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\17\ that the proposed rule change (SR-BYX-2013-008) be, and hereby
is, approved.
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\17\ 15 U.S.C. 78s(b)(2).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\18\
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\18\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-13036 Filed 5-31-13; 8:45 am]
BILLING CODE 8011-01-P