1208 Federal Register / Vol. 76, No. 5 / Friday, January 7, 2011 / Notices 

22 17 CFR 200.30–3(a)(12). 

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). 

5A Member is any registered broker or dealer that 

has been admitted to membership in the Exchange. 

6Each pair of ports consists of one port at the 

Exchange’s primary data center and one port at the 

Exchange’s secondary data center. 

7See Securities Exchange Act Release Nos. 62663 

(August 9, 2010), 75 FR 49543 (August 13, 2010) 

(SR–NASDAQ–2010–077) (order approving fees for 

both 1G and 10G non-co-located port connections); 

Securities Exchange Act Release No. 62681 (August 

10, 2010), 75 FR 50020 (August 16, 2010) (SR– 

EDGA–2010–06) (order approving fees for both 1G 

and 10G port connections). 

8 15 U.S.C. 78f(b)(4). 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.22

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. 2011–93 Filed 1–6–11; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–63630; File No. SR–BATS– 

2010–039] 

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. 

January 3, 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 December 

22, 2010, 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 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 to modify its 

fee schedule applicable to Members 5

and non-members of the Exchange 

pursuant to BATS Rules 15.1(a) and (c). 

Pursuant to the proposed rule change, 

the Exchange will commence charging 

fees to Members and non-members for 

10G direct circuit connections, change 

pricing for certain other physical ports, 

and begin passing through in full certain 

hardware expenses incurred by the 

Exchange that are directly related to 

completing a cross-connect. While 

changes to the fee schedule pursuant to 

this proposal will be effective upon 

filing, the changes will become 

operative on January 3, 2011. 

The text of the proposed rule change 

is available at the Exchange’s Web site 

at http://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 

The purpose of the proposed rule 

change is to establish fees for direct 10G 

circuit connections, to raise the monthly 

fees for ‘‘physical’’ ports into the 

Exchange at the data centers where the 

Exchange’s servers are located, and to 

pass through in full any hardware costs 

or connectivity fees incurred by the 

Exchange that are directly related to 

completing a cross-connect where the 

cost or fee exceeds $1,000. The 

Exchange already provides Members 

and non-Members four pairs 6 of 1G 

physical ports free of charge and charges 

$2,000 per month for each additional 

single physical port. 

The Exchange proposes to provide the 

option to connect directly with the 

Exchange via 10G physical ports to any 

Member or non-member that has been 

approved to connect to the Exchange. 

Due to the infrastructure costs 

associated with providing the additional 

bandwidth for 10G physical ports, the 

Exchange proposes to charge $2,500 per 

month for each single physical 10G port 

provided by the Exchange to any 

Member or non-member in any data 

center. The Exchange’s proposal is 

intended to permit those Members and 

non-members that require additional 

bandwidth and wish to establish 10G 

physical ports to do so if such 

constituent is willing to pay for such 

ports. The Exchange notes that other 

market centers provide similar services 

to their Members and non-members.7

The Exchange also proposes to 

increase the fee for each 1G physical 

port used by Members and nonmembers in excess of the four ports 

provided free of charge from $2,000 per 

port each month to $2,500 per port each 

month. The proposal is intended to 

account for increasing infrastructure 

costs associated with providing physical 

ports while at the same time permitting 

those Members and non-members that 

wish to establish additional physical 

ports do so if such constituents are 

willing to pay for such ports. Based on 

the proposal, the change applies to all 

Exchange constituents with 1G physical 

connections, including Members that 

obtain ports for direct access to the 

Exchange, non-member service bureaus 

that act as a conduit for orders entered 

by Exchange Members that are their 

customers, Sponsored Participants, and 

market data recipients. There are zero 

non-members and very few Members 

that currently require more than four 

physical ports for their operations 

related to the Exchange and thus, the 

proposal should not affect many of the 

Exchange’s constituents. 

Lastly, the Exchange proposes to pass 

through in full any hardware costs or 

connectivity fees incurred that are 

directly related to completing a crossconnect where the expense to the 

Exchange billed by a third party exceeds 

$1,000. The Exchange proposes to pass 

through the expense as an alternative to 

the flat installation fees charged by the 

Exchange’s primary competitors. The 

Exchange does not anticipate that 

passing through these expenses will 

affect many of the Exchange’s 

constituents, because the majority of 

cross-connect completions cost less than 

$1,000. For this reason, the Exchange 

proposes to pass-through the charges 

associated with cross-connect 

completions that cost more than $1,000 

rather than to subsidize these expensive 

completions by charging an installation 

fee for all completions regardless of 

their cost. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

Section 6(b)(4) of the Act,8 in that it 


jdjones on DSK8KYBLC1PROD with NOTICES
Federal Register / Vol. 76, No. 5 / Friday, January 7, 2011 / Notices 1209 

9 15 U.S.C. 78s(b)(3)(A)(ii). 

10 17 CFR 240.19b–4(f)(2). 

11See Section 916 of the Dodd-Frank Wall Street 

Reform and Consumer Protection Act of 2010, 

which amended paragraph (A) of Section 19(b)(3) 

of the Act by inserting the phrase ‘‘on any person, 

whether or not the person is a member of the selfregulatory organization’’ after ‘‘due, fee or other 

charge imposed by the self-regulatory organization.’’ 

As a result, all SRO rule proposals establishing or 

changing dues, fees, or other charges are 

immediately effective upon filing regardless of 

whether such dues, fees, or other charges are 

imposed on members of the SRO, non-members, or 

both. 12 17 CFR 200.30–3(a)(12). 

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. The Exchange believes 

that its fees and credits are competitive 

with those charged by other venues. 

Finally, the Exchange believes that the 

proposed rates are equitable in that they 

apply uniformly to all Members and 

non-members. 

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 9 and Rule 19b–4(f)(2) 

thereunder,10 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.11

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 (http://www.sec.gov/ 

rules/sro.shtml); or 

• Send an e-mail to rulecomments@sec.gov. Please include File 

Number SR–BATS–2010–039 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–2010–039. 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 (http://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– 

2010–039 and should be submitted on 

or before January 28, 2011. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.12

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. 2011–91 Filed 1–6–11; 8:45 am] 

BILLING CODE 8011–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

[Docket No. FRA–2011–0003] 

Establishment of an Emergency Relief 

Docket for Calendar Year 2011 

AGENCY: Federal Railroad 

Administration (FRA), DOT. 

ACTION: Notice of establishment of 

public docket. 

SUMMARY: This Notice announces the 

establishment of FRA’s emergency relief 

docket (ERD) for calendar year 2011. 

The designated ERD for calendar year 

2011 is docket number FRA–2011–0003. 

ADDRESSES: See Supplementary 

Information section for further 

information regarding submitting 

petitions and/or comments to Docket 

No. FRA–2011–0003. 

SUPPLEMENTARY INFORMATION: On May 

19, 2009, FRA published a direct final 

rule addressing the establishment of 

ERDs and the procedures for handling 

petitions for emergency waivers of 

safety rules, regulations, or standards 

during an emergency situation or event. 

74 FR 23329. That direct final rule 

became effective on July 20, 2009 and 

made minor modifications to § 211.45 to 

the FRA’s Rules of Practice published at 

49 CFR Part 211. Paragraph (b) of 

§ 211.45 provides that each calendar 

year FRA will establish an ERD in the 

publicly accessible DOT docket system 

(available on the internet at http:// 

www.regulations.gov). Paragraph (b) of 

§ 211.45 further provides that FRA will 

publish a notice in the Federal Register 

identifying by docket number the ERD 

for that year. As noted in the rule, FRA’s 

purpose for establishing the ERD and 

emergency waiver procedures is to 

provide an expedited process for FRA to 

address the needs of the public and the 

railroad industry during emergency 

situations or events. This Notice 

announces that the designated ERD for 

calendar year 2011 is docket number 

FRA–2011–0003. 

As detailed § 211.45, if the FRA 

Administrator determines that an 

emergency event as defined in 49 CFR 

211.45(a) has occurred, or that an 


jdjones on DSK8KYBLC1PROD with NOTICES