[Federal Register Volume 76, Number 5 (Friday, January 7, 2011)]
[Notices]
[Pages 1208-1209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-91]


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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.
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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 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.
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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 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.
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    \6\ Each pair of ports consists of one port at the Exchange's 
primary data center and one port at the Exchange's secondary data 
center.
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    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\
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    \7\ See 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).
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    The Exchange also proposes to increase the fee for each 1G physical 
port used by Members and non-members 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 cross-connect 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

[[Page 1209]]

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.
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    \8\ 15 U.S.C. 78f(b)(4).
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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\
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    \9\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \10\ 17 CFR 240.19b-4(f)(2).
    \11\ See 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 self-regulatory 
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.
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    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

    <bullet> Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
    <bullet> Send an e-mail to <a href="/cdn-cgi/l/email-protection#1a686f767f37797577777f746e695a697f79347d756c"><span class="__cf_email__" data-cfemail="d1a3a4bdb4fcb2bebcbcb4bfa5a291a2b4b2ffb6bea7">[email protected]</span></a>. Please include 
File Number SR-BATS-2010-039 on the subject line.

Paper Comments

    <bullet> 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\
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    \12\ 17 CFR 200.30-3(a)(12).
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Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-91 Filed 1-6-11; 8:45 am]
BILLING CODE 8011-01-P


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