81_FR_14206 81 FR 14155 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Regarding Fees and Rebates To Adopt the Select Symbols Options Tier Schedule

81 FR 14155 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Regarding Fees and Rebates To Adopt the Select Symbols Options Tier Schedule

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 81, Issue 51 (March 16, 2016)

Page Range14155-14160
FR Document2016-05854

Federal Register, Volume 81 Issue 51 (Wednesday, March 16, 2016)
[Federal Register Volume 81, Number 51 (Wednesday, March 16, 2016)]
[Notices]
[Pages 14155-14160]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-05854]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-77339; File No. SR-BX-2016-016]


Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change Regarding Fees and 
Rebates To Adopt the Select Symbols Options Tier Schedule

March 10, 2016.
    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 March 1, 2016, NASDAQ BX, Inc. (``BX'' or ``Exchange'') \3\ filed 
with the Securities and Exchange Commission (``SEC'' or ``Commission'') 
the proposed rule change as described in Items I, II, and III, below, 
which Items have been prepared by the Exchange. 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\ The Exchange notes that it has legally changed its name to 
NASDAQ BX, Inc. with the state of Delaware and filed Form 1 
reflecting the change, and is in the process of changing its rules 
to reflect the new name.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend its Options Pricing at Chapter XV 
Section 2, entitled ``BX Options Market--Fees and Rebates,'' which 
governs pricing for BX members using the BX Options Market (``BX 
Options''). The Exchange proposes to modify certain fees and rebates 
(per executed contract) to adopt the Select Symbol Options Tier 
Schedule for certain Penny Pilot \4\ Options (each a ``Select Symbol'' 
and together the ``Select Symbols'').
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    \4\ The Penny Pilot was established in June 2012 and extended in 
2015. See Securities Exchange Act Release Nos. 67256 (June 26, 
2012), 77 FR 39277 (July 2, 2012) (SR-BX-2012-030) (order approving 
BX option rules and establishing Penny Pilot); and 75326 (June 29, 
2015), 80 FR 38481 (July 6, 2015) (SR-BX-2015-037) (notice of filing 
and immediate effectiveness extending the Penny Pilot through June 
30, 2016).
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    The text of the proposed rule change is available on the Exchange's 
Web site at http://nasdaqomxbx.cchwallstreet.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 aspects of such 
statements.

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

1. Purpose
    The Exchange proposes to amend its Chapter XV, Section 2, to modify 
certain fees and rebates \5\ to adopt the Select Symbol Options Tier 
Schedule for certain Penny Pilot Options. The proposed Select Symbol 
Options Tier Schedule would apply to Customers,\6\ BX Options Market 
Makers,\7\ Non-Customers,\8\ and Firms.\9\
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    \5\ Fees and rebates are per executed contract. BX Chapter XV, 
Section 2(1).
    \6\ The term ``Customer'' or (``C'') applies to any transaction 
that is identified by a Participant for clearing in the Customer 
range at The Options Clearing Corporation (``OCC'') which is not for 
the account of broker or dealer or for the account of a 
``Professional'' (as that term is defined in Chapter I, Section 
1(a)(48)). BX Chapter XV.
    \7\ BX Options Market Makers may also be referred to as ``Market 
Makers''. The term ``BX Options Market Maker'' or (``M'') means a 
Participant that has registered as a Market Maker on BX Options 
pursuant to Chapter VII, Section 2, and must also remain in good 
standing pursuant to Chapter VII, Section 4. In order to receive 
Market Maker pricing in all securities, the Participant must be 
registered as a BX Options Market Maker in at least one security. BX 
Chapter XV.
    \8\ Note 1 to Chapter XV, Section 2, states: ``\1\ A Non-
Customer includes a Professional, Broker-Dealer and Non-BX Options 
Market Maker.''
    \9\ The term ``Firm'' or (``F'') applies to any transaction that 
is identified by a Participant for clearing in the Firm range at 
OCC. BX Chapter XV.
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    Currently, Chapter XV, Section 2, subsection (1), contains a SPY 
\10\ Options Tier Schedule (``SPY Schedule'') that has four tiers. The 
Exchange proposes to convert the SPY Schedule into the Select Symbols 
Options Tier Schedule, as discussed in detail below.
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    \10\ ``SPY'' or Standard and Poor's Depositary Receipts/SPDRs 
options are Penny Pilot Options that are based on the SPDR exchange-
traded fund (``ETF''), which is designed to track the performance of 
the S&P 500.
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Change 1--Penny Pilot Options: Modify Fees and Rebates To Add the 
Select Symbols Options Tier Schedule
    In Change 1, the Exchange proposes modifications to convert its 
current SPY Schedule to the Select Symbols Options Tier Schedule. The 
proposed change keeps the great majority of the current SPY Schedule 
fees and rebates assessments (twelve out of sixteen) and tiers (three 
out of four) exactly the same in the new Select Symbols Options Tier 
Schedule; and updates the fees and rebates schedule to indicate 
``Select Symbols'' rather than ``SPY.''
    Specifically, the Exchange proposes, commensurate with renaming the 
SPY Options Tier Schedule the Select Symbols Options Tier Schedule, to 
set forth the BX Options Select Symbol List. The Select Symbols \11\ on 
this list represent, similarly to SPY, some of the highest volume Penny 
Pilot Options traded on the Exchange and in the U.S. The proposed 
Select Symbols are similar to those of other options exchanges (e.g., 
the MIAX Options Exchange (``MIAX'').\12\ Like the SPY

[[Page 14156]]

Options Tier Schedule, the Select Symbols Options Tier Schedule will 
have four tiers.
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    \11\ The following are Select Symbols: ASHR, DIA, DXJ, EEM, EFA, 
EWJ, EWT, EWW, EWY, EWZ, FAS, FAZ, FXE, FXI, FXP, GDX, GLD, HYG, 
IWM, IYR, KRE, OIH, QID, QLD, QQQ, RSX, SDS, SKF, SLV, SPY, SRS, 
SSO, TBT, TLT, TNA, TZA, UNG, URE, USO, UUP, UVXY, UYG, VXX, XHB, 
XLB, XLE, XLF, XLI, XLK, XLP, XLU, XLV, XLY, XME, XOP, XRT.
    \12\ See MIAX fee schedule at http://www.miaxoptions.com/sites/default/files/fee-schedules/MIAX_Options_Fee_Schedule_10012015.pdf.
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    Proposed Tier 1 in the Select Symbols Options Tier Schedule, which 
has the same requirements as the current Tier I in the SPY Options Tier 
Schedule will be where a BX Participant (``Participant'') executes less 
than 0.05% of total industry customer equity and exchange traded fund 
(``ETF'') option average daily volume (``ADV'') contracts per month. 
Proposed Tier 1 will range from a $0.00 rebate to a $0.44 fee:

--The Rebate to Add Liquidity when Customer trading with Non-Customer, 
BX Options Market Maker, or Firm will be $0.00 (no rebate will be 
paid); \13\
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    \13\ This is the same as the rebate in the current SPY Options 
Tier Schedule.
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--the Fee to Add Liquidity when BX Options Market Maker trading with 
Customer will be $0.44; \14\
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    \14\ Proposed $0.44 is a modest fee increase from the current 
SPY Options Tier Schedule, which is $0.42.
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--the Rebate to Remove Liquidity when Customer trading with Non-
Customer, BX Options Market Maker, Customer, or Firm will be $0.00; 
\15\ and
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    \15\ This is the same as the rebate in the current SPY Options 
Tier Schedule.
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--the Fee to Remove Liquidity when BX Options Market Maker trading with 
Customer will be $0.42.\16\

    \16\ This is the same as the fee in the current SPY Options Tier 
Schedule.
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    Proposed Tier 2 in the Select Symbols Options Tier Schedule, which 
has the same requirements as current Tier 2 in the SPY Options Tier 
Schedule, will be where Participant executes 0.05% to less than 0.15% 
of total industry customer equity and ETF option ADV contracts per 
month. Proposed Tier 2 will range from a $0.25 rebate to a $0.44 fee:

--The new Rebate to Add Liquidity when Customer trading with Non-
Customer, BX Options Market Maker, or Firm will be $0.10; \17\
---------------------------------------------------------------------------

    \17\ This is the same as the rebate in the current SPY Options 
Tier Schedule.
---------------------------------------------------------------------------

--the new Fee to Add Liquidity when BX Options Market Maker trading 
with Customer will be $0.44; \18\
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    \18\ Proposed $0.44 is a modest fee increase from the current 
SPY Options Tier Schedule, which is $0.42.
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--the new Rebate to Remove Liquidity when Customer trading with Non-
Customer, BX Options Market Maker, Customer, or Firm will be $0.25; 
\19\ and
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    \19\ This is the same as the rebate in the current SPY Options 
Tier Schedule.
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--the new Fee to Remove Liquidity when BX Options Market Maker trading 
with Customer will be $0.42.\20\

    \20\ This is the same as the fee in the current SPY Options Tier 
Schedule.
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    Proposed Tier 3 in the Select Symbols Options Tier Schedule, which 
has the same requirements the current Tier 3 in the SPY Options Tier 
Schedule, will be where Participant executes 0.15% or more of total 
industry customer equity and ETF option ADV contracts per month. 
Proposed Tier 3 will range from a $0.37 rebate to a $0.40 fee:

--The new Rebate to Add Liquidity when Customer trading with Non-
Customer, BX Options Market Maker, or Firm will be $0.20; \21\
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    \21\ This is the same as the rebate in the current SPY Options 
Tier Schedule.
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--the new Fee to Add Liquidity when BX Options Market Maker trading 
with Customer will be $0.40; \22\
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    \22\ Proposed $0.40 is a modest fee increase from the current 
SPY Options Tier Schedule, which is $0.39.
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--the new Rebate to Remove Liquidity when Customer trading with Non-
Customer, BX Options Market Maker, Customer, or Firm will be $0.37; 
\23\ and
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    \23\ This is the same as the rebate in the current SPY Options 
Tier Schedule.
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--the new Fee to Remove Liquidity when BX Options Market Maker trading 
with Customer will be $0.39.\24\
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    \24\ This is the same as the fee in the current SPY Options Tier 
Schedule.

    Proposed Tier 4 in the Select Symbols Options Tier Schedule, which 
is modified from the current Tier 4 in the SPY Options Tier Schedule, 
will be where Participant executes more than 10,000 BX Price 
Improvement Auction (``PRISM'') \25\ Agency Contracts per month; or 
Participant executes BX Options Market Maker volume of 0.30% or more of 
total industry customer equity and ETF options ADV per month. If a 
Participant qualifies for Tier 4 the rates applicable to this tier will 
supersede any other Select Symbols tier rates that the Participant may 
qualify for. Proposed Tier 4 will range from a $0.37 rebate to a $0.29 
fee:
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    \25\ PRISM is a Price Improvement Mechanism for all-electronic 
BX Options whereby a buy and sell order may be submitted in one 
order message to initiate an auction at a stop price and seek 
potential price improvement. Options are traded electronically on BX 
Options, and all options participants may respond to a PRISM 
Auction, the duration of which is set at 200 milliseconds. PRISM 
includes auto-match functionality in which a Participant (an 
``Initiating Participant'') may electronically submit for execution 
an order it represents as agent on behalf of customer, broker 
dealer, or any other entity (``PRISM Order'') against principal 
interest or against any other order it represents as agent (an 
``Initiating Order'') provided it submits the PRISM Order for 
electronic execution into the PRISM Auction pursuant [sic]. See 
Chapter VI, Section 9; and Securities Exchange Act Release No. 76301 
(October 29, 2015), 80 FR 68347 (November 4, 2015) (SR-BX-2015-032) 
(order approving BX PRISM).

--The new Rebate to Add Liquidity when Customer trading with Non-
Customer, BX Options Market Maker, or Firm will be $0.25; \26\
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    \26\ This is the same as the rebate in the current SPY Options 
Tier Schedule.
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--the new Fee to Add Liquidity when BX Options Market Maker trading 
with Customer will be $0.29; \27\
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    \27\ Proposed $0.29 is, in order to further promote liquidity on 
the Exchange, a modest fee decrease from the current SPY Options 
Tier Schedule, which is $0.32.
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--the new Rebate to Remove Liquidity when Customer trading with Non-
Customer, BX Options Market Maker, Customer, or Firm will be $0.37; 
\28\ and
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    \28\ This is the same as the rebate in the current SPY Options 
Tier Schedule.
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--the new Fee to Remove Liquidity when BX Options Market Maker trading 
with Customer will be $0.25.\29\
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    \29\ This is the same as the fee in the current SPY Options Tier 
Schedule.

    In addition, there are currently six explanatory notes in the SPY 
Options Tier Schedule. In each such note the Exchange will, as 
elsewhere in the fees and rebates schedule, replace ``SPY'' with 
``Select Symbols.'' The Exchange proposes to also establish a fee on 
one note that is not currently fee liable in the SPY Options Tier 
Schedule. Specifically, the Exchange proposes to state that BX Options 
Market Maker fee to add liquidity in SPY [sic] Options will be $0.04 
when trading with Firm, Non-Customer, or BX Options Market Maker.
    Chapter XV, Section 2 subsection (1) reflecting the proposed Select 
Symbols Options Tier Schedule will read as follows:
Sec. 2 BX Options Market--Fees and Rebates
    The following charges shall apply to the use of the order execution 
and routing services of the BX Options market for all securities.
    (1) Fees for Execution of Contracts on the BX Options Market:
* * * * *

[[Page 14157]]



                                      Select Symbols Options Tier Schedule
----------------------------------------------------------------------------------------------------------------
                                              Rebate to add      Fee to add    Rebate to  remove   Fee to remove
                                                liquidity         liquidity         liquidity        liquidity
----------------------------------------------------------------------------------------------------------------
When:                                                Customer      BX Options           Customer      BX Options
                                                                 market maker                       market maker
----------------------------------------------------------------------------------------------------------------
Trading with:                                   Non-Customer,        Customer      Non-Customer,        Customer
                                                   BX options                         BX options
                                                market maker,                      market maker,
                                                      or firm                          customer,
                                                                                         or firm
----------------------------------------------------------------------------------------------------------------
Tier 1:
    Participant executes less than 0.05%                $0.00           $0.44              $0.00           $0.42
     of total industry customer equity and
     ETF option ADV contracts per month...
Tier 2:
    Participant executes 0.05% to less                   0.10            0.44               0.25            0.42
     than 0.15% of total industry customer
     equity and ETF option ADV contracts
     per month............................
Tier 3:
    Participant executes 0.15% or more of                0.20            0.40               0.37            0.39
     total industry customer equity and
     ETF option ADV contracts per month...
Tier 4:
    Participant executes more than 10,000                0.25            0.29               0.37            0.25
     PRISM Agency Contracts per month; or
     Participant executes BX Options
     Market Maker volume of 0.30% or more
     of total industry customer equity and
     ETF options ADV per month............
----------------------------------------------------------------------------------------------------------------

BX Options Select Symbol List
    The following are Select Symbols: ASHR, DIA, DXJ, EEM, EFA, EWJ, 
EWT, EWW, EWY, EWZ, FAS, FAZ, FXE, FXI, FXP, GDX, GLD, HYG, IWM, IYR, 
KRE, OIH, QID, QLD, QQQ, RSX, SDS, SKF, SLV, SPY, SRS, SSO, TBT, TLT, 
TNA, TZA, UNG, URE, USO, UUP, UVXY, UYG, VXX, XHB, XLB, XLE, XLF, XLI, 
XLK, XLP, XLU, XLV, XLY, XME, XOP, XRT
     BX Options Market Maker fee to add liquidity in Select 
Symbols Options will be $0.04 when trading with Firm, Non-Customer, or 
BX Options Market Maker.
     Firm fee to add liquidity and fee to remove liquidity in 
Select Symbols Options will be $0.33 per contract, regardless of 
counterparty.
     Non-Customer fee to add liquidity and fee to remove 
liquidity in Select Symbols Options will be $0.46 per contract, 
regardless of counterparty.
     BX Options Market Maker fee to remove liquidity in Select 
Symbols Options will be $0.46 per contract when trading with Firm, Non-
Customer, or BX Options Market Maker.
     Customer fee to add liquidity in Select Symbols Options 
when contra to another Customer is $0.33 per contract.
     Volume from all products listed on BX Options will apply 
to the Select Symbols Options Tiers.
* * * * *
    The Exchange is proposing fees and rebate changes and adopting the 
Select Symbols Options Tier Schedule at this time because it believes 
that this will provide incentives for execution of contracts, and in 
particular Select Symbols Options contracts, on the BX Options Market.
    The Exchange also believes that its proposal should provide 
increased opportunities for participation in executions on the 
Exchange, facilitating the ability of the Exchange to bring together 
participants and encourage more robust competition for orders.
2. Statutory Basis
    The Exchange believes that its proposal to amend its Pricing 
Schedule is consistent with Section 6(b) of the Act,\30\ in general, 
and furthers the objectives of Section 6(b)(4) and (b)(5) of the 
Act,\31\ in particular, in that it provides for the equitable 
allocation of reasonable dues, fees and other charges among members and 
issuers and other persons using any facility or system which the 
Exchange operates or controls, and is not designed to permit unfair 
discrimination between customers, issuers, brokers, or dealers.
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    \30\ 15 U.S.C. 78f(b).
    \31\ 15 U.S.C. 78f(b)(4), (5).
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    The Commission and the courts have repeatedly expressed their 
preference for competition over regulatory intervention in determining 
prices, products, and services in the securities markets. In Regulation 
NMS, while adopting a series of steps to improve the current market 
model, the Commission highlighted the importance of market forces in 
determining prices and SRO revenues and, also, recognized that current 
regulation of the market system ``has been remarkably successful in 
promoting market competition in its broader forms that are most 
important to investors and listed companies.'' \32\
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    \32\ Securities Exchange Act Release No. 51808 at 37499 (June 9, 
2005) (``Regulation NMS Adopting Release'').
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    Likewise, in NetCoalition v. Securities and Exchange Commission 
\33\ (``NetCoalition'') the DC Circuit upheld the Commission's use of a 
market-based approach in evaluating the fairness of market data fees 
against a challenge claiming that Congress mandated a cost-based 
approach.\34\ As the court emphasized, the Commission ``intended in 
Regulation NMS that `market forces, rather than regulatory 
requirements' play a role in determining the market data . . . to be 
made available to investors and at what cost.'' \35\
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    \33\ NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010).
    \34\ See id. at 534-535.
    \35\ See id. at 537.
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    Further, ``[n]o one disputes that competition for order flow is 
`fierce.' . . . As the SEC explained, `[i]n the U.S. national market 
system, buyers and sellers of securities, and the broker-dealers that 
act as their order-routing agents, have a wide range of choices of 
where to route orders for execution'; [and] `no exchange can afford to 
take its market share percentages for granted' because `no exchange 
possesses a monopoly, regulatory or otherwise, in the execution of 
order flow from broker

[[Page 14158]]

dealers'. . . .'' \36\ Although the court and the SEC were discussing 
the cash equities markets, the Exchange believes that these views apply 
with equal force to the options markets.
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    \36\ See id. at 539 (quoting Securities Exchange [sic] Release 
No. 59039 (December 2, 2008), 73 FR 74770 (December 9, 2008) (SR-
NYSEArca-2006-21) at 73 FR at 74782-74783).
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    The Exchange proposes to amend its Chapter XV, Section 2 to modify 
certain fees and rebates to adopt the Select Symbol Options Tier 
Schedule for certain Penny Pilot Options. The proposed modified fees 
and rebates and new Select Symbols Options Tier Schedule would, as 
discussed, apply to Customers, BX Options Market Makers, Non-Customers, 
and Firms. The Exchange believes that its proposal is reasonable, 
equitable, and not unfairly discriminatory and should provide increased 
opportunities for participation in executions on the Exchange, 
facilitating the ability of the Exchange to bring together participants 
and encourage more robust competition for orders.
Change 1--Penny Pilot Options: Modify Fees and Rebates To Add the 
Select Symbols Options Tier Schedule
    In Change 1, the Exchange proposes to convert its current SPY 
Options Tier Schedule to the Select Symbols Options Tier Schedule and 
to set forth the BX Options Select Symbol List. The Select Symbols on 
this list represent, similarly to SPY, some of the highest volume Penny 
Pilot Options traded on the Exchange and in the U.S and are similar to 
those of other options exchanges (e.g., the MIAX).
    As discussed, the proposed change updates the fees and rebates 
schedule to indicate ``Select Symbols'' rather than ``SPY'' and keeps 
the great majority of the current SPY Schedule fees and rebates 
assessments and tiers exactly the same in the new Select Symbols 
Options Tier Schedule. The proposed fee changes are in respect of the 
Fee to Add Liquidity when BX Options Market Maker trades with Customer. 
Each of the Tier 1, 2, and 3 changes is a modest fee increase from the 
current schedule, not exceeding two pennies. The Tier 4 change is a fee 
decrease from the current fee schedule in order to further promote 
liquidity on the Exchange.\37\ The Exchange also proposes to change one 
explanatory note applicable to the Select Symbols to make it fee 
liable.
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    \37\ Tier 4 is updated from the current SPY Options Tier 
Schedule to give additional ways to achieve the tier requirements 
through specified PRISM volume as well as options volume.
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    The proposed rule change is reasonable because it continues to 
encourage market participant behavior through the fees and rebates 
system, which is an accepted methodology among options exchanges.\38\ 
Converting SPY Options Tier Schedule to the Select Symbols Options Tier 
Schedule is reasonable because of the nature of Select Symbol options, 
which are the most heavily traded options on the Exchange as well as in 
the industry. By expanding from SPY Options to Select Symbol Options, 
the Exchange is further promoting options liquidity [sic] the Exchange.
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    \38\ See, e.g., fee and rebate schedules of other options 
exchanges, including, but not limited to, NASDAQ Options Market 
(``NOM''), NASDAQ PHLX LLC (``Phlx''), and Chicago Board Options 
Exchange (``CBOE'').
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    The Exchange believes that the proposed Select Symbol Options Tier 
Schedule is reasonable because it is not a novel, untested structure 
but rather is similar to what is offered by other options markets, such 
as MIAX, and is based on the Exchange's existing SPY Options Tier 
Schedule. The proposed Tiers in the Select Symbols Options Tier 
Schedule clearly reflect the progressively increasing nature of 
Participant executions structured for the purpose of attracting order 
flow to the Exchange. This encourages market participant behavior 
through progressive tiered fees and rebates using an accepted 
methodology among options exchanges.\39\
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    \39\ Id.
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    Tier 1 in the Select Symbols Options Tier Schedule is, similarly to 
Tier 1 in the current SPY Options Tier Schedule, set up to enable a 
Participant to earn a Rebate to Add Liquidity or pay a Fee to Add 
Liquidity in Select Symbols where the Participant executes less than 
0.05% of total industry customer equity and ETF option ADV contracts 
per month.
    Tier 2 in the Select Symbols Options Tier Schedule is, similarly to 
Tier 2 in the current SPY Options Tier Schedule, set up to enable a 
Participant to earn a Rebate to Add Liquidity or pay a Fee to Add 
Liquidity in the Select Symbols where the Participant executes 0.05% to 
less than 0.15% of total industry customer equity and ETF option ADV 
contracts per month.
    And Tier 3 in the Select Symbols Options Tier Schedule is, 
similarly to Tier 3 in the SPY Options Tier Schedule, set up to enable 
a Participant to earn a Rebate to Add Liquidity or pay a Fee to Add 
Liquidity in the Select Symbols to Participant [sic] executes 0.15% or 
more of total industry customer equity and ETF option ADV contracts per 
month. The fees and rebates that BX Options Market Makers and Customers 
are assessed are, as has been discussed, almost all comparable to the 
fees and rebates in the SPY Options Tier Schedule.
    The Exchange believes that it is reasonable to also adjust the 
current Tier 4 in the SPY Options Tier Schedule as reflected in the new 
Tier 4 in the Select Symbols Options Tier Schedule, in order to enable 
a Participant to earn a Rebate to Add Liquidity or pay a Fee to Add 
Liquidity in Select Symbols where the Participant executes more than 
10,000 PRISM Agency Contracts per month; or Participant executes BX 
Options Market Maker volume of 0.30% or more of total industry customer 
equity and ETF options ADV per month. By so doing, the Exchange 
encourages Participants to trade PRISM and/or make markets on the 
exchange.
    In addition, the Exchange believes that making changes to add the 
Select Symbols Options Tier Schedule in terms of Rebate to Add 
Liquidity and Fee to Add Liquidity, and Rebate to Remove Liquidity and 
Fee to Remove Liquidity, is reasonable because it encourages the 
desired Customer behavior by attracting Customer interest in Select 
Symbols to the Exchange. Customer activity enhances liquidity on the 
Exchange for the benefit of all market participants and benefits all 
market participants by providing more trading opportunities, which 
attracts market makers. An increase in the activity of these market 
participants in turn facilitates tighter spreads, which may cause an 
additional corresponding increase in order flow from other market 
participants.
    The Select Symbols Options Tier Schedule is reasonable in that it 
is, similarly to the current SPY Options Tier Schedule, set up to 
incentivize Participants to direct liquidity to the Exchange; using 
volume from all products listed on BX Options will further incentivize 
Participants. As Participants execute more of total industry customer 
equity and ETF option ADV contracts per month on the Exchange, they can 
in certain categories earn higher rebates and be assessed lower fees. 
For example, in the Select Symbols Options Tier Schedule the Tier 3 
Rebate to Add Liquidity when Customer trading with Non-Customer, BX 
Options Market Maker, or Firm is higher ($0.20) than the Tier 1 Rebate 
to Add Liquidity ($0.00); and the Tier 3 Rebate to Remove Liquidity 
when Customer trading with Non-Customer, BX Options Market Maker, 
Customer, or Firm is higher ($0.37) that the Tier 2 Rebate to Remove 
Liquidity ($0.25).
    Similarly, the proposed Fee to Add Liquidity when BX Option Market 
Maker trading with Customer is lower for Tier 3 ($0.40) than for Tier 1 
($0.44);

[[Page 14159]]

and, the Fee to Remove Liquidity when BX Option Market Maker trading 
with Customer is lower for Tier 3 ($0.39) than for Tier 1 ($0.42).
    The Exchange believes that it is reasonable to indicate a $0.04 fee 
assessment in the discussed BX Options Market Maker explanatory note. 
This explanatory note, which is currently not fee liable for options on 
SPY, will be fee liable for Select Symbols. The Exchange believes that 
this is in line with its continued effort to promote liquidity on the 
Exchange while covering costs through fees and rebates.
    Establishing the Select Symbol Options Tier Schedule is equitable 
and not unfairly discriminatory. This is because the Exchange's 
proposal to assess fees and pay rebates according to Tiers 1, 2, 3, and 
4 as proposed to be amended will apply uniformly to all similarly 
situated Participants. Customers would earn a Rebate to Add Liquidity 
and a Rebate to Remove Liquidity according to the Tiers,\40\ and BX 
Market Makers would be assessed a Fee to Add Liquidity and a Fee to 
Remove Liquidity according to the same Tiers per the Select Symbols 
Options Tier Schedule; and certain fees would be the same regardless of 
counterparty. The fee and rebate schedule as proposed continues to 
reflect differentiation among different market participants. The 
Exchange believes that the differentiation is equitable and not 
unfairly discriminatory, as well as reasonable, because transactions of 
a BX Options Market Maker must constitute a course of dealings 
reasonably calculated to contribute to the maintenance of a fair and 
orderly market, and BX Options Market Makers should not make bids or 
offers or enter into transactions that are inconsistent with such 
course of dealings. Further, all BX Options Market Makers are 
designated as specialists on BX for all purposes under the Act or rules 
thereunder.\41\
---------------------------------------------------------------------------

    \40\ Per a note to the Select Symbol Options Tier Schedule, 
Customer fee to add liquidity in Select Symbols Options when contra 
to another Customer is $0.33 per contract. The only change in this 
note, which is currently applicable to the SPY Options Tier 
Schedule, is that the note will be applicable to the Select Symbol 
Options Tier Schedule.
    \41\ See Chapter VII, Section 5, entitled ``Obligations of 
Market Makers.''
---------------------------------------------------------------------------

    The Exchange believes that by making the proposed changes it is 
continuing to incentivize Participants to execute more volume on the 
Exchange to further enhance liquidity in this market.

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

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act. Specifically, the Exchange does 
not believe that its proposal to make changes to its Penny Pilot 
Options to establish a Select Symbols Options Tiers Schedule will 
impose any undue burden on competition, as discussed below.
    The Exchange operates in a highly competitive market in which many 
sophisticated and knowledgeable market participants can readily and do 
send order flow to competing exchanges if they deem fee levels or 
rebate incentives at a particular exchange to be excessive or 
inadequate. Additionally, new competitors have entered the market and 
still others are reportedly entering the market shortly. These market 
forces ensure that the Exchange's fees and rebates remain competitive 
with the fee structures at other trading platforms. In that sense, the 
Exchange's proposal is actually pro-competitive because the Exchange is 
simply continuing its fees and rebates for Penny Pilot Options and 
establishing a Select Symbols Options Tiers Schedule in order to remain 
competitive in the current environment.
    The Exchange does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act. In terms of inter-market 
competition, the Exchange notes that it operates in a highly 
competitive market in which market participants can readily favor 
competing venues if they deem fee levels at a particular venue to be 
excessive, or rebate opportunities available at other venues to be more 
favorable. In such an environment, the Exchange must continually adjust 
its fees to remain competitive with other exchanges and with 
alternative trading systems that have been exempted from compliance 
with the statutory standards applicable to exchanges. Because 
competitors are free to modify their own fees in response, and because 
market participants may readily adjust their order routing practices, 
the Exchange believes that the degree to which fee changes in this 
market may impose any burden on competition is extremely limited.
    In terms of intra-market competition, the Exchange notes that price 
differentiation among different market participants operating on the 
Exchange (e.g., Customer and BX Options Market Maker) is reasonable. 
Customer activity, for example, enhances liquidity on the Exchange for 
the benefit of all market participants and benefits all market 
participants by providing more trading opportunities, which attracts 
market makers. An increase in the activity of these market participants 
(particularly in response to pricing) in turn facilitates tighter 
spreads, which may cause an additional corresponding increase in order 
flow from other market participants.
    Moreover, unlike others market participants each BX Options Market 
Maker commits to various obligations. These obligations include, for 
example, transactions of a BX Market Maker must constitute a course of 
dealings reasonably calculated to contribute to the maintenance of a 
fair and orderly market, and Market Makers should not make bids or 
offers or enter into transactions that are inconsistent with such 
course of dealings.\42\ In this instance, the proposed changes to the 
fees and rebates to establish a Select Symbols Options Tiers Schedule, 
does not impose a burden on competition because the Exchange's 
execution and routing services are completely voluntary and subject to 
extensive competition both from other exchanges and from off-exchange 
venues. If the changes proposed herein are unattractive to market 
participants, it is likely that the Exchange will lose market share as 
a result. Accordingly, the Exchange does not believe that the proposed 
changes will impair the ability of members or competing order execution 
venues to maintain their competitive standing in the financial markets. 
Additionally, the changes proposed herein are pro-competitive to the 
extent that they continue to allow the Exchange to promote and maintain 
order executions.
---------------------------------------------------------------------------

    \42\ See Chapter VII, Section 5.
---------------------------------------------------------------------------

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

    No written comments were either 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,\43\ the Exchange 
has designated this proposal as establishing or changing a due, fee, or 
other charge imposed by the self-regulatory organization on any person, 
whether or not the person is a member of the self-regulatory 
organization, which renders the proposed rule change effective upon 
filing.
---------------------------------------------------------------------------

    \43\ 15 U.S.C. 78s(b)(3)(A)(ii).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule 
change, the

[[Page 14160]]

Commission summarily may temporarily suspend such rule change if it 
appears to the Commission that such action is: (i) Necessary or 
appropriate in the public interest; (ii) for the protection of 
investors; or (iii) otherwise in furtherance of the purposes of the 
Act. If the Commission takes such action, the Commission shall 
institute proceedings to determine whether the proposed rule 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:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-BX-2016-016 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-BX-2016-016. 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 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 10:00 a.m. and 
3:00 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-BX-2016-016 and 
should be submitted on or before April 6, 2016.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\44\
---------------------------------------------------------------------------

    \44\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-05854 Filed 3-15-16; 8:45 am]
 BILLING CODE 8011-01-P



                                                                               Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Notices                                                       14155

                                                  to either approve the proposed rule                      solicit comments on the proposed rule                  BX Options Market Makers,7 Non-
                                                  change, disapprove the proposed rule                     change from interested persons.                        Customers,8 and Firms.9
                                                  change, or institute proceedings to                                                                               Currently, Chapter XV, Section 2,
                                                                                                           I. Self-Regulatory Organization’s                      subsection (1), contains a SPY 10
                                                  determine whether to disapprove the
                                                                                                           Statement of the Terms of Substance of                 Options Tier Schedule (‘‘SPY
                                                  proposed rule change.6 On December
                                                                                                           the Proposed Rule Change                               Schedule’’) that has four tiers. The
                                                  11, 2015, the Commission instituted
                                                  proceedings under Section 19(b)(2)(B) of                    The Exchange proposes to amend its                  Exchange proposes to convert the SPY
                                                  the Act 7 to determine whether to                        Options Pricing at Chapter XV Section                  Schedule into the Select Symbols
                                                  approve or disapprove the proposed                       2, entitled ‘‘BX Options Market—Fees                   Options Tier Schedule, as discussed in
                                                  rule change, as modified by Amendment                    and Rebates,’’ which governs pricing for               detail below.
                                                  No. 1.8 The Commission has not                           BX members using the BX Options
                                                                                                                                                                  Change 1—Penny Pilot Options: Modify
                                                  received any comments on the proposal,                   Market (‘‘BX Options’’). The Exchange                  Fees and Rebates To Add the Select
                                                  as modified by Amendment No. 1.                          proposes to modify certain fees and                    Symbols Options Tier Schedule
                                                    On March 7, 2016, the Exchange                         rebates (per executed contract) to adopt
                                                  withdrew the proposed rule change                        the Select Symbol Options Tier                            In Change 1, the Exchange proposes
                                                  (SR–NYSEArca–2015–76).                                   Schedule for certain Penny Pilot 4                     modifications to convert its current SPY
                                                                                                           Options (each a ‘‘Select Symbol’’ and                  Schedule to the Select Symbols Options
                                                    For the Commission, by the Division of
                                                  Trading and Markets, pursuant to delegated               together the ‘‘Select Symbols’’).                      Tier Schedule. The proposed change
                                                  authority.9                                                 The text of the proposed rule change                keeps the great majority of the current
                                                  Robert W. Errett,                                        is available on the Exchange’s Web site                SPY Schedule fees and rebates
                                                  Deputy Secretary.                                        at http://nasdaqomxbx.cchwall                          assessments (twelve out of sixteen) and
                                                                                                           street.com/, at the principal office of the            tiers (three out of four) exactly the same
                                                  [FR Doc. 2016–05851 Filed 3–15–16; 8:45 am]
                                                                                                           Exchange, and at the Commission’s                      in the new Select Symbols Options Tier
                                                  BILLING CODE 8011–01–P
                                                                                                           Public Reference Room.                                 Schedule; and updates the fees and
                                                                                                                                                                  rebates schedule to indicate ‘‘Select
                                                                                                           II. Self-Regulatory Organization’s                     Symbols’’ rather than ‘‘SPY.’’
                                                  SECURITIES AND EXCHANGE                                  Statement of the Purpose of, and                          Specifically, the Exchange proposes,
                                                  COMMISSION                                               Statutory Basis for, the Proposed Rule                 commensurate with renaming the SPY
                                                  [Release No. 34–77339; File No. SR–BX–                   Change                                                 Options Tier Schedule the Select
                                                  2016–016]                                                                                                       Symbols Options Tier Schedule, to set
                                                                                                             In its filing with the Commission, the
                                                                                                           Exchange included statements                           forth the BX Options Select Symbol List.
                                                  Self-Regulatory Organizations;                                                                                  The Select Symbols 11 on this list
                                                  NASDAQ BX, Inc.; Notice of Filing and                    concerning the purpose of and basis for
                                                                                                           the proposed rule change and discussed                 represent, similarly to SPY, some of the
                                                  Immediate Effectiveness of Proposed                                                                             highest volume Penny Pilot Options
                                                  Rule Change Regarding Fees and                           any comments it received on the
                                                                                                           proposed rule change. The text of these                traded on the Exchange and in the U.S.
                                                  Rebates To Adopt the Select Symbols                                                                             The proposed Select Symbols are
                                                  Options Tier Schedule                                    statements may be examined at the
                                                                                                           places specified in Item IV below. The                 similar to those of other options
                                                  March 10, 2016.                                          Exchange has prepared summaries, set                   exchanges (e.g., the MIAX Options
                                                     Pursuant to Section 19(b)(1) of the                   forth in sections A, B, and C below, of                Exchange (‘‘MIAX’’).12 Like the SPY
                                                  Securities Exchange Act of 1934                          the most significant aspects of such
                                                  (‘‘Act’’),1 and Rule 19b–4 thereunder,2                  statements.                                            ‘‘Professional’’ (as that term is defined in Chapter
                                                                                                                                                                  I, Section 1(a)(48)). BX Chapter XV.
                                                  notice is hereby given that on March 1,
                                                  2016, NASDAQ BX, Inc. (‘‘BX’’ or                         A. Self-Regulatory Organization’s                         7 BX Options Market Makers may also be referred

                                                                                                           Statement of the Purpose of, and                       to as ‘‘Market Makers’’. The term ‘‘BX Options
                                                  ‘‘Exchange’’) 3 filed with the Securities                                                                       Market Maker’’ or (‘‘M’’) means a Participant that
                                                  and Exchange Commission (‘‘SEC’’ or                      Statutory Basis for, the Proposed Rule                 has registered as a Market Maker on BX Options
                                                  ‘‘Commission’’) the proposed rule                        Change                                                 pursuant to Chapter VII, Section 2, and must also
                                                                                                                                                                  remain in good standing pursuant to Chapter VII,
                                                  change as described in Items I, II, and                  1. Purpose                                             Section 4. In order to receive Market Maker pricing
                                                  III, below, which Items have been                          The Exchange proposes to amend its                   in all securities, the Participant must be registered
                                                  prepared by the Exchange. The                                                                                   as a BX Options Market Maker in at least one
                                                                                                           Chapter XV, Section 2, to modify certain               security. BX Chapter XV.
                                                  Commission is publishing this notice to                  fees and rebates 5 to adopt the Select                    8 Note 1 to Chapter XV, Section 2, states: ‘‘1 A


                                                     6 See Securities Exchange Act Release No. 76291,
                                                                                                           Symbol Options Tier Schedule for                       Non-Customer includes a Professional, Broker-
                                                                                                           certain Penny Pilot Options. The                       Dealer and Non-BX Options Market Maker.’’
                                                  80 FR 67827 (Nov. 3, 2015). The Commission                                                                         9 The term ‘‘Firm’’ or (‘‘F’’) applies to any
                                                  determined that it was appropriate to designate a        proposed Select Symbol Options Tier                    transaction that is identified by a Participant for
                                                  longer period within which to take action on the         Schedule would apply to Customers,6                    clearing in the Firm range at OCC. BX Chapter XV.
                                                  proposed rule change so that it had sufficient time                                                                10 ‘‘SPY’’ or Standard and Poor’s Depositary
                                                  to consider the proposed rule change. Accordingly,          4 The Penny Pilot was established in June 2012      Receipts/SPDRs options are Penny Pilot Options
                                                  the Commission designated December 15, 2015 as
                                                                                                           and extended in 2015. See Securities Exchange Act      that are based on the SPDR exchange-traded fund
                                                  the date by which it should approve, disapprove,
                                                                                                           Release Nos. 67256 (June 26, 2012), 77 FR 39277        (‘‘ETF’’), which is designed to track the
                                                  or institute proceedings to determine whether to
                                                                                                           (July 2, 2012) (SR–BX–2012–030) (order approving       performance of the S&P 500.
                                                  disapprove the proposed rule change.
                                                     7 15 U.S.C. 78s(b)(2)(B).
                                                                                                           BX option rules and establishing Penny Pilot); and        11 The following are Select Symbols: ASHR, DIA,
                                                                                                           75326 (June 29, 2015), 80 FR 38481 (July 6, 2015)      DXJ, EEM, EFA, EWJ, EWT, EWW, EWY, EWZ,
                                                     8 See Securities Exchange Act Release No. 76630,
                                                                                                           (SR–BX–2015–037) (notice of filing and immediate       FAS, FAZ, FXE, FXI, FXP, GDX, GLD, HYG, IWM,
mstockstill on DSK4VPTVN1PROD with NOTICES




                                                  80 FR 78791 (Dec. 17, 2015).                             effectiveness extending the Penny Pilot through        IYR, KRE, OIH, QID, QLD, QQQ, RSX, SDS, SKF,
                                                     9 17 CFR 200.30–3(a)(57).
                                                                                                           June 30, 2016).                                        SLV, SPY, SRS, SSO, TBT, TLT, TNA, TZA, UNG,
                                                     1 15 U.S.C. 78s(b)(1).                                   5 Fees and rebates are per executed contract. BX    URE, USO, UUP, UVXY, UYG, VXX, XHB, XLB,
                                                     2 17 CFR 240.19b–4.                                   Chapter XV, Section 2(1).                              XLE, XLF, XLI, XLK, XLP, XLU, XLV, XLY, XME,
                                                     3 The Exchange notes that it has legally changed         6 The term ‘‘Customer’’ or (‘‘C’’) applies to any   XOP, XRT.
                                                  its name to NASDAQ BX, Inc. with the state of            transaction that is identified by a Participant for       12 See MIAX fee schedule at http://

                                                  Delaware and filed Form 1 reflecting the change,         clearing in the Customer range at The Options          www.miaxoptions.com/sites/default/files/fee-
                                                  and is in the process of changing its rules to reflect   Clearing Corporation (‘‘OCC’’) which is not for the    schedules/MIAX_Options_Fee_Schedule_
                                                  the new name.                                            account of broker or dealer or for the account of a    10012015.pdf.



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                                                  14156                        Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Notices

                                                  Options Tier Schedule, the Select                       —the new Fee to Remove Liquidity                         or more of total industry customer
                                                  Symbols Options Tier Schedule will                         when BX Options Market Maker                          equity and ETF options ADV per month.
                                                  have four tiers.                                           trading with Customer will be                         If a Participant qualifies for Tier 4 the
                                                     Proposed Tier 1 in the Select Symbols                   $0.42.20                                              rates applicable to this tier will
                                                  Options Tier Schedule, which has the                       Proposed Tier 3 in the Select Symbols                 supersede any other Select Symbols tier
                                                  same requirements as the current Tier I                 Options Tier Schedule, which has the                     rates that the Participant may qualify
                                                  in the SPY Options Tier Schedule will                   same requirements the current Tier 3 in                  for. Proposed Tier 4 will range from a
                                                  be where a BX Participant                               the SPY Options Tier Schedule, will be                   $0.37 rebate to a $0.29 fee:
                                                  (‘‘Participant’’) executes less than 0.05%              where Participant executes 0.15% or
                                                  of total industry customer equity and                   more of total industry customer equity                   —The new Rebate to Add Liquidity
                                                  exchange traded fund (‘‘ETF’’) option                   and ETF option ADV contracts per                          when Customer trading with Non-
                                                  average daily volume (‘‘ADV’’) contracts                month. Proposed Tier 3 will range from                    Customer, BX Options Market Maker,
                                                  per month. Proposed Tier 1 will range                   a $0.37 rebate to a $0.40 fee:                            or Firm will be $0.25; 26
                                                  from a $0.00 rebate to a $0.44 fee:                     —The new Rebate to Add Liquidity                         —the new Fee to Add Liquidity when
                                                  —The Rebate to Add Liquidity when                          when Customer trading with Non-                        BX Options Market Maker trading
                                                     Customer trading with Non-Customer,                     Customer, BX Options Market Maker,                     with Customer will be $0.29; 27
                                                     BX Options Market Maker, or Firm                        or Firm will be $0.20; 21                             —the new Rebate to Remove Liquidity
                                                     will be $0.00 (no rebate will be                     —the new Fee to Add Liquidity when                        when Customer trading with Non-
                                                     paid); 13                                               BX Options Market Maker trading                        Customer, BX Options Market Maker,
                                                  —the Fee to Add Liquidity when BX                          with Customer will be $0.40; 22                        Customer, or Firm will be $0.37; 28
                                                     Options Market Maker trading with                    —the new Rebate to Remove Liquidity                       and
                                                     Customer will be $0.44; 14                              when Customer trading with Non-                       —the new Fee to Remove Liquidity
                                                  —the Rebate to Remove Liquidity when                       Customer, BX Options Market Maker,                     when BX Options Market Maker
                                                     Customer trading with Non-Customer,                     Customer, or Firm will be $0.37; 23                    trading with Customer will be
                                                     BX Options Market Maker, Customer,                      and                                                    $0.25.29
                                                     or Firm will be $0.00; 15 and                        —the new Fee to Remove Liquidity
                                                  —the Fee to Remove Liquidity when BX                       when BX Options Market Maker                            In addition, there are currently six
                                                     Options Market Maker trading with                       trading with Customer will be                         explanatory notes in the SPY Options
                                                     Customer will be $0.42.16                               $0.39.24                                              Tier Schedule. In each such note the
                                                     Proposed Tier 2 in the Select Symbols                   Proposed Tier 4 in the Select Symbols                 Exchange will, as elsewhere in the fees
                                                  Options Tier Schedule, which has the                    Options Tier Schedule, which is                          and rebates schedule, replace ‘‘SPY’’
                                                  same requirements as current Tier 2 in                  modified from the current Tier 4 in the                  with ‘‘Select Symbols.’’ The Exchange
                                                  the SPY Options Tier Schedule, will be                  SPY Options Tier Schedule, will be                       proposes to also establish a fee on one
                                                  where Participant executes 0.05% to                     where Participant executes more than                     note that is not currently fee liable in
                                                  less than 0.15% of total industry                       10,000 BX Price Improvement Auction                      the SPY Options Tier Schedule.
                                                  customer equity and ETF option ADV                      (‘‘PRISM’’) 25 Agency Contracts per                      Specifically, the Exchange proposes to
                                                  contracts per month. Proposed Tier 2                    month; or Participant executes BX                        state that BX Options Market Maker fee
                                                  will range from a $0.25 rebate to a $0.44               Options Market Maker volume of 0.30%                     to add liquidity in SPY [sic] Options
                                                  fee:                                                                                                             will be $0.04 when trading with Firm,
                                                  —The new Rebate to Add Liquidity                           20 This is the same as the fee in the current SPY     Non-Customer, or BX Options Market
                                                     when Customer trading with Non-                      Options Tier Schedule.                                   Maker.
                                                                                                             21 This is the same as the rebate in the current
                                                     Customer, BX Options Market Maker,                                                                              Chapter XV, Section 2 subsection (1)
                                                                                                          SPY Options Tier Schedule.
                                                     or Firm will be $0.10; 17                               22 Proposed $0.40 is a modest fee increase from       reflecting the proposed Select Symbols
                                                  —the new Fee to Add Liquidity when                      the current SPY Options Tier Schedule, which is          Options Tier Schedule will read as
                                                     BX Options Market Maker trading                      $0.39.                                                   follows:
                                                     with Customer will be $0.44; 18                         23 This is the same as the rebate in the current

                                                  —the new Rebate to Remove Liquidity                     SPY Options Tier Schedule.                               Sec. 2 BX Options Market—Fees and
                                                     when Customer trading with Non-                         24 This is the same as the fee in the current SPY
                                                                                                                                                                   Rebates
                                                     Customer, BX Options Market Maker,                   Options Tier Schedule.
                                                     Customer, or Firm will be $0.25; 19
                                                                                                             25 PRISM is a Price Improvement Mechanism for           The following charges shall apply to
                                                                                                          all-electronic BX Options whereby a buy and sell         the use of the order execution and
                                                     and                                                  order may be submitted in one order message to
                                                                                                          initiate an auction at a stop price and seek potential
                                                                                                                                                                   routing services of the BX Options
                                                    13 This is the same as the rebate in the current      price improvement. Options are traded                    market for all securities.
                                                  SPY Options Tier Schedule.                              electronically on BX Options, and all options              (1) Fees for Execution of Contracts on
                                                    14 Proposed $0.44 is a modest fee increase from       participants may respond to a PRISM Auction, the
                                                                                                          duration of which is set at 200 milliseconds. PRISM
                                                                                                                                                                   the BX Options Market:
                                                  the current SPY Options Tier Schedule, which is
                                                  $0.42.                                                  includes auto-match functionality in which a             *     *     *    *      *
                                                    15 This is the same as the rebate in the current      Participant (an ‘‘Initiating Participant’’) may
                                                                                                                                                                      26 This is the same as the rebate in the current
                                                  SPY Options Tier Schedule.                              electronically submit for execution an order it
                                                                                                          represents as agent on behalf of customer, broker        SPY Options Tier Schedule.
                                                    16 This is the same as the fee in the current SPY
                                                                                                          dealer, or any other entity (‘‘PRISM Order’’) against       27 Proposed $0.29 is, in order to further promote
                                                  Options Tier Schedule.                                  principal interest or against any other order it
                                                    17 This is the same as the rebate in the current
                                                                                                                                                                   liquidity on the Exchange, a modest fee decrease
                                                                                                          represents as agent (an ‘‘Initiating Order’’) provided   from the current SPY Options Tier Schedule, which
                                                  SPY Options Tier Schedule.                              it submits the PRISM Order for electronic execution
mstockstill on DSK4VPTVN1PROD with NOTICES




                                                    18 Proposed $0.44 is a modest fee increase from
                                                                                                                                                                   is $0.32.
                                                                                                          into the PRISM Auction pursuant [sic]. See Chapter          28 This is the same as the rebate in the current
                                                  the current SPY Options Tier Schedule, which is         VI, Section 9; and Securities Exchange Act Release
                                                  $0.42.                                                  No. 76301 (October 29, 2015), 80 FR 68347                SPY Options Tier Schedule.
                                                                                                                                                                      29 This is the same as the fee in the current SPY
                                                    19 This is the same as the rebate in the current      (November 4, 2015) (SR–BX–2015–032) (order
                                                  SPY Options Tier Schedule.                              approving BX PRISM).                                     Options Tier Schedule.




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                                                                               Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Notices                                                            14157

                                                                                                        SELECT SYMBOLS OPTIONS TIER SCHEDULE
                                                                                                                                                                                          Rebate to
                                                                                                                                          Rebate to add            Fee to add                                 Fee to remove
                                                                                                                                                                                           remove
                                                                                                                                            liquidity               liquidity                                    liquidity
                                                                                                                                                                                           liquidity

                                                                                        When:                                                  Customer            BX Options             Customer             BX Options
                                                                                                                                                                  market maker                                market maker

                                                                                  Trading with:                                           Non-Customer,            Customer         Non-Customer,               Customer
                                                                                                                                           BX options                                BX options
                                                                                                                                          market maker,                             market maker,
                                                                                                                                             or firm                                  customer,
                                                                                                                                                                                       or firm

                                                  Tier 1:
                                                       Participant executes less than 0.05% of total industry customer
                                                          equity and ETF option ADV contracts per month .....................                             $0.00           $0.44                   $0.00               $0.42
                                                  Tier 2:
                                                       Participant executes 0.05% to less than 0.15% of total industry
                                                          customer equity and ETF option ADV contracts per month .....                                     0.10            0.44                        0.25            0.42
                                                  Tier 3:
                                                       Participant executes 0.15% or more of total industry customer
                                                          equity and ETF option ADV contracts per month .....................                              0.20            0.40                        0.37            0.39
                                                  Tier 4:
                                                       Participant executes more than 10,000 PRISM Agency Con-
                                                          tracts per month; or Participant executes BX Options Market
                                                          Maker volume of 0.30% or more of total industry customer
                                                          equity and ETF options ADV per month ..................................                          0.25            0.29                        0.37            0.25



                                                  BX Options Select Symbol List                            provide incentives for execution of                         current regulation of the market system
                                                     The following are Select Symbols:                     contracts, and in particular Select                         ‘‘has been remarkably successful in
                                                  ASHR, DIA, DXJ, EEM, EFA, EWJ, EWT,                      Symbols Options contracts, on the BX                        promoting market competition in its
                                                  EWW, EWY, EWZ, FAS, FAZ, FXE, FXI,                       Options Market.                                             broader forms that are most important to
                                                                                                             The Exchange also believes that its                       investors and listed companies.’’ 32
                                                  FXP, GDX, GLD, HYG, IWM, IYR, KRE,
                                                                                                           proposal should provide increased
                                                  OIH, QID, QLD, QQQ, RSX, SDS, SKF,                                                                                      Likewise, in NetCoalition v. Securities
                                                                                                           opportunities for participation in
                                                  SLV, SPY, SRS, SSO, TBT, TLT, TNA,                                                                                   and Exchange Commission 33
                                                                                                           executions on the Exchange, facilitating
                                                  TZA, UNG, URE, USO, UUP, UVXY,                                                                                       (‘‘NetCoalition’’) the DC Circuit upheld
                                                                                                           the ability of the Exchange to bring
                                                  UYG, VXX, XHB, XLB, XLE, XLF, XLI,                                                                                   the Commission’s use of a market-based
                                                                                                           together participants and encourage
                                                  XLK, XLP, XLU, XLV, XLY, XME, XOP,                                                                                   approach in evaluating the fairness of
                                                                                                           more robust competition for orders.
                                                  XRT                                                                                                                  market data fees against a challenge
                                                     • BX Options Market Maker fee to                      2. Statutory Basis                                          claiming that Congress mandated a cost-
                                                  add liquidity in Select Symbols Options                     The Exchange believes that its                           based approach.34 As the court
                                                  will be $0.04 when trading with Firm,                    proposal to amend its Pricing Schedule                      emphasized, the Commission ‘‘intended
                                                  Non-Customer, or BX Options Market                       is consistent with Section 6(b) of the                      in Regulation NMS that ‘market forces,
                                                  Maker.                                                   Act,30 in general, and furthers the                         rather than regulatory requirements’
                                                     • Firm fee to add liquidity and fee to                objectives of Section 6(b)(4) and (b)(5) of                 play a role in determining the market
                                                  remove liquidity in Select Symbols                       the Act,31 in particular, in that it                        data . . . to be made available to
                                                  Options will be $0.33 per contract,                      provides for the equitable allocation of                    investors and at what cost.’’ 35
                                                  regardless of counterparty.                              reasonable dues, fees and other charges
                                                     • Non-Customer fee to add liquidity                   among members and issuers and other
                                                                                                                                                                          Further, ‘‘[n]o one disputes that
                                                  and fee to remove liquidity in Select                                                                                competition for order flow is ‘fierce.’
                                                                                                           persons using any facility or system                        . . . As the SEC explained, ‘[i]n the U.S.
                                                  Symbols Options will be $0.46 per                        which the Exchange operates or
                                                  contract, regardless of counterparty.                                                                                national market system, buyers and
                                                                                                           controls, and is not designed to permit
                                                     • BX Options Market Maker fee to                      unfair discrimination between
                                                                                                                                                                       sellers of securities, and the broker-
                                                  remove liquidity in Select Symbols                                                                                   dealers that act as their order-routing
                                                                                                           customers, issuers, brokers, or dealers.
                                                  Options will be $0.46 per contract when                                                                              agents, have a wide range of choices of
                                                                                                              The Commission and the courts have
                                                  trading with Firm, Non-Customer, or BX                                                                               where to route orders for execution’;
                                                                                                           repeatedly expressed their preference
                                                  Options Market Maker.                                    for competition over regulatory                             [and] ‘no exchange can afford to take its
                                                     • Customer fee to add liquidity in                    intervention in determining prices,                         market share percentages for granted’
                                                  Select Symbols Options when contra to                    products, and services in the securities                    because ‘no exchange possesses a
                                                  another Customer is $0.33 per contract.                  markets. In Regulation NMS, while                           monopoly, regulatory or otherwise, in
                                                     • Volume from all products listed on                                                                              the execution of order flow from broker
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                                                                                                           adopting a series of steps to improve the
                                                  BX Options will apply to the Select                      current market model, the Commission
                                                  Symbols Options Tiers.                                   highlighted the importance of market                          32 Securities Exchange Act Release No. 51808 at

                                                  *     *     *     *    *                                                                                             37499 (June 9, 2005) (‘‘Regulation NMS Adopting
                                                                                                           forces in determining prices and SRO                        Release’’).
                                                     The Exchange is proposing fees and                    revenues and, also, recognized that                           33 NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir.
                                                  rebate changes and adopting the Select                                                                               2010).
                                                  Symbols Options Tier Schedule at this                      30 15   U.S.C. 78f(b).                                      34 See id. at 534–535.

                                                  time because it believes that this will                    31 15   U.S.C. 78f(b)(4), (5).                              35 See id. at 537.




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                                                  14158                        Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Notices

                                                  dealers’. . . .’’ 36 Although the court                  encourage market participant behavior                been discussed, almost all comparable
                                                  and the SEC were discussing the cash                     through the fees and rebates system,                 to the fees and rebates in the SPY
                                                  equities markets, the Exchange believes                  which is an accepted methodology                     Options Tier Schedule.
                                                  that these views apply with equal force                  among options exchanges.38 Converting                   The Exchange believes that it is
                                                  to the options markets.                                  SPY Options Tier Schedule to the Select              reasonable to also adjust the current
                                                    The Exchange proposes to amend its                     Symbols Options Tier Schedule is                     Tier 4 in the SPY Options Tier Schedule
                                                  Chapter XV, Section 2 to modify certain                  reasonable because of the nature of                  as reflected in the new Tier 4 in the
                                                  fees and rebates to adopt the Select                     Select Symbol options, which are the                 Select Symbols Options Tier Schedule,
                                                  Symbol Options Tier Schedule for                         most heavily traded options on the                   in order to enable a Participant to earn
                                                  certain Penny Pilot Options. The                         Exchange as well as in the industry. By              a Rebate to Add Liquidity or pay a Fee
                                                  proposed modified fees and rebates and                   expanding from SPY Options to Select                 to Add Liquidity in Select Symbols
                                                  new Select Symbols Options Tier                          Symbol Options, the Exchange is further              where the Participant executes more
                                                  Schedule would, as discussed, apply to                   promoting options liquidity [sic] the                than 10,000 PRISM Agency Contracts
                                                  Customers, BX Options Market Makers,                     Exchange.                                            per month; or Participant executes BX
                                                  Non-Customers, and Firms. The                              The Exchange believes that the                     Options Market Maker volume of 0.30%
                                                  Exchange believes that its proposal is                   proposed Select Symbol Options Tier                  or more of total industry customer
                                                  reasonable, equitable, and not unfairly                  Schedule is reasonable because it is not             equity and ETF options ADV per month.
                                                  discriminatory and should provide                        a novel, untested structure but rather is            By so doing, the Exchange encourages
                                                  increased opportunities for participation                similar to what is offered by other                  Participants to trade PRISM and/or
                                                  in executions on the Exchange,                           options markets, such as MIAX, and is                make markets on the exchange.
                                                  facilitating the ability of the Exchange to              based on the Exchange’s existing SPY                    In addition, the Exchange believes
                                                  bring together participants and                          Options Tier Schedule. The proposed                  that making changes to add the Select
                                                  encourage more robust competition for                    Tiers in the Select Symbols Options Tier             Symbols Options Tier Schedule in terms
                                                  orders.                                                  Schedule clearly reflect the                         of Rebate to Add Liquidity and Fee to
                                                                                                           progressively increasing nature of                   Add Liquidity, and Rebate to Remove
                                                  Change 1—Penny Pilot Options: Modify                     Participant executions structured for the            Liquidity and Fee to Remove Liquidity,
                                                  Fees and Rebates To Add the Select                       purpose of attracting order flow to the              is reasonable because it encourages the
                                                  Symbols Options Tier Schedule                            Exchange. This encourages market                     desired Customer behavior by attracting
                                                     In Change 1, the Exchange proposes to                 participant behavior through                         Customer interest in Select Symbols to
                                                  convert its current SPY Options Tier                     progressive tiered fees and rebates using            the Exchange. Customer activity
                                                  Schedule to the Select Symbols Options                   an accepted methodology among                        enhances liquidity on the Exchange for
                                                  Tier Schedule and to set forth the BX                    options exchanges.39                                 the benefit of all market participants
                                                  Options Select Symbol List. The Select                     Tier 1 in the Select Symbols Options               and benefits all market participants by
                                                  Symbols on this list represent, similarly                Tier Schedule is, similarly to Tier 1 in             providing more trading opportunities,
                                                  to SPY, some of the highest volume                       the current SPY Options Tier Schedule,               which attracts market makers. An
                                                  Penny Pilot Options traded on the                        set up to enable a Participant to earn a             increase in the activity of these market
                                                  Exchange and in the U.S and are similar                  Rebate to Add Liquidity or pay a Fee to              participants in turn facilitates tighter
                                                  to those of other options exchanges (e.g.,               Add Liquidity in Select Symbols where                spreads, which may cause an additional
                                                  the MIAX).                                               the Participant executes less than 0.05%             corresponding increase in order flow
                                                     As discussed, the proposed change                     of total industry customer equity and                from other market participants.
                                                  updates the fees and rebates schedule to                 ETF option ADV contracts per month.                     The Select Symbols Options Tier
                                                  indicate ‘‘Select Symbols’’ rather than                    Tier 2 in the Select Symbols Options               Schedule is reasonable in that it is,
                                                  ‘‘SPY’’ and keeps the great majority of                  Tier Schedule is, similarly to Tier 2 in             similarly to the current SPY Options
                                                  the current SPY Schedule fees and                        the current SPY Options Tier Schedule,               Tier Schedule, set up to incentivize
                                                  rebates assessments and tiers exactly the                set up to enable a Participant to earn a             Participants to direct liquidity to the
                                                  same in the new Select Symbols                           Rebate to Add Liquidity or pay a Fee to              Exchange; using volume from all
                                                  Options Tier Schedule. The proposed                      Add Liquidity in the Select Symbols                  products listed on BX Options will
                                                  fee changes are in respect of the Fee to                 where the Participant executes 0.05% to              further incentivize Participants. As
                                                  Add Liquidity when BX Options Market                     less than 0.15% of total industry                    Participants execute more of total
                                                  Maker trades with Customer. Each of the                  customer equity and ETF option ADV                   industry customer equity and ETF
                                                  Tier 1, 2, and 3 changes is a modest fee                 contracts per month.                                 option ADV contracts per month on the
                                                  increase from the current schedule, not                    And Tier 3 in the Select Symbols                   Exchange, they can in certain categories
                                                  exceeding two pennies. The Tier 4                        Options Tier Schedule is, similarly to               earn higher rebates and be assessed
                                                  change is a fee decrease from the current                Tier 3 in the SPY Options Tier                       lower fees. For example, in the Select
                                                  fee schedule in order to further promote                 Schedule, set up to enable a Participant             Symbols Options Tier Schedule the Tier
                                                                                                           to earn a Rebate to Add Liquidity or pay             3 Rebate to Add Liquidity when
                                                  liquidity on the Exchange.37 The
                                                                                                           a Fee to Add Liquidity in the Select                 Customer trading with Non-Customer,
                                                  Exchange also proposes to change one
                                                                                                           Symbols to Participant [sic] executes                BX Options Market Maker, or Firm is
                                                  explanatory note applicable to the
                                                                                                           0.15% or more of total industry                      higher ($0.20) than the Tier 1 Rebate to
                                                  Select Symbols to make it fee liable.
                                                     The proposed rule change is                           customer equity and ETF option ADV                   Add Liquidity ($0.00); and the Tier 3
                                                  reasonable because it continues to                       contracts per month. The fees and                    Rebate to Remove Liquidity when
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                                                                                                           rebates that BX Options Market Makers                Customer trading with Non-Customer,
                                                    36 See id. at 539 (quoting Securities Exchange [sic]   and Customers are assessed are, as has               BX Options Market Maker, Customer, or
                                                  Release No. 59039 (December 2, 2008), 73 FR 74770                                                             Firm is higher ($0.37) that the Tier 2
                                                  (December 9, 2008) (SR–NYSEArca–2006–21) at 73             38 See, e.g., fee and rebate schedules of other
                                                                                                                                                                Rebate to Remove Liquidity ($0.25).
                                                  FR at 74782–74783).                                      options exchanges, including, but not limited to,       Similarly, the proposed Fee to Add
                                                    37 Tier 4 is updated from the current SPY Options      NASDAQ Options Market (‘‘NOM’’), NASDAQ
                                                  Tier Schedule to give additional ways to achieve         PHLX LLC (‘‘Phlx’’), and Chicago Board Options       Liquidity when BX Option Market
                                                  the tier requirements through specified PRISM            Exchange (‘‘CBOE’’).                                 Maker trading with Customer is lower
                                                  volume as well as options volume.                          39 Id.                                             for Tier 3 ($0.40) than for Tier 1 ($0.44);


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                                                                              Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Notices                                               14159

                                                  and, the Fee to Remove Liquidity when                   any burden on competition not                         opportunities, which attracts market
                                                  BX Option Market Maker trading with                     necessary or appropriate in furtherance               makers. An increase in the activity of
                                                  Customer is lower for Tier 3 ($0.39) than               of the purposes of the Act. Specifically,             these market participants (particularly
                                                  for Tier 1 ($0.42).                                     the Exchange does not believe that its                in response to pricing) in turn facilitates
                                                     The Exchange believes that it is                     proposal to make changes to its Penny                 tighter spreads, which may cause an
                                                  reasonable to indicate a $0.04 fee                      Pilot Options to establish a Select                   additional corresponding increase in
                                                  assessment in the discussed BX Options                  Symbols Options Tiers Schedule will                   order flow from other market
                                                  Market Maker explanatory note. This                     impose any undue burden on                            participants.
                                                  explanatory note, which is currently not                competition, as discussed below.                         Moreover, unlike others market
                                                  fee liable for options on SPY, will be fee                 The Exchange operates in a highly                  participants each BX Options Market
                                                  liable for Select Symbols. The Exchange                 competitive market in which many                      Maker commits to various obligations.
                                                  believes that this is in line with its                  sophisticated and knowledgeable                       These obligations include, for example,
                                                  continued effort to promote liquidity on                market participants can readily and do                transactions of a BX Market Maker must
                                                  the Exchange while covering costs                       send order flow to competing exchanges                constitute a course of dealings
                                                  through fees and rebates.                               if they deem fee levels or rebate                     reasonably calculated to contribute to
                                                     Establishing the Select Symbol                       incentives at a particular exchange to be             the maintenance of a fair and orderly
                                                  Options Tier Schedule is equitable and                  excessive or inadequate. Additionally,                market, and Market Makers should not
                                                  not unfairly discriminatory. This is                    new competitors have entered the                      make bids or offers or enter into
                                                  because the Exchange’s proposal to                      market and still others are reportedly                transactions that are inconsistent with
                                                  assess fees and pay rebates according to                entering the market shortly. These                    such course of dealings.42 In this
                                                  Tiers 1, 2, 3, and 4 as proposed to be                  market forces ensure that the Exchange’s              instance, the proposed changes to the
                                                  amended will apply uniformly to all                     fees and rebates remain competitive                   fees and rebates to establish a Select
                                                  similarly situated Participants.                        with the fee structures at other trading              Symbols Options Tiers Schedule, does
                                                  Customers would earn a Rebate to Add                    platforms. In that sense, the Exchange’s              not impose a burden on competition
                                                  Liquidity and a Rebate to Remove                        proposal is actually pro-competitive                  because the Exchange’s execution and
                                                  Liquidity according to the Tiers,40 and                 because the Exchange is simply                        routing services are completely
                                                  BX Market Makers would be assessed a                    continuing its fees and rebates for Penny             voluntary and subject to extensive
                                                  Fee to Add Liquidity and a Fee to                       Pilot Options and establishing a Select               competition both from other exchanges
                                                  Remove Liquidity according to the same                  Symbols Options Tiers Schedule in                     and from off-exchange venues. If the
                                                  Tiers per the Select Symbols Options                    order to remain competitive in the                    changes proposed herein are
                                                  Tier Schedule; and certain fees would                   current environment.                                  unattractive to market participants, it is
                                                  be the same regardless of counterparty.                    The Exchange does not believe that                 likely that the Exchange will lose
                                                  The fee and rebate schedule as proposed                 the proposed rule change will impose                  market share as a result. Accordingly,
                                                  continues to reflect differentiation                    any burden on competition not                         the Exchange does not believe that the
                                                  among different market participants.                    necessary or appropriate in furtherance               proposed changes will impair the ability
                                                  The Exchange believes that the                          of the purposes of the Act. In terms of               of members or competing order
                                                  differentiation is equitable and not                    inter-market competition, the Exchange                execution venues to maintain their
                                                  unfairly discriminatory, as well as                     notes that it operates in a highly                    competitive standing in the financial
                                                  reasonable, because transactions of a BX                competitive market in which market                    markets. Additionally, the changes
                                                  Options Market Maker must constitute a                  participants can readily favor competing              proposed herein are pro-competitive to
                                                                                                          venues if they deem fee levels at a                   the extent that they continue to allow
                                                  course of dealings reasonably calculated
                                                                                                          particular venue to be excessive, or                  the Exchange to promote and maintain
                                                  to contribute to the maintenance of a
                                                                                                          rebate opportunities available at other               order executions.
                                                  fair and orderly market, and BX Options
                                                                                                          venues to be more favorable. In such an
                                                  Market Makers should not make bids or                                                                         C. Self-Regulatory Organization’s
                                                                                                          environment, the Exchange must
                                                  offers or enter into transactions that are                                                                    Statement on Comments on the
                                                                                                          continually adjust its fees to remain
                                                  inconsistent with such course of                                                                              Proposed Rule Change Received From
                                                                                                          competitive with other exchanges and
                                                  dealings. Further, all BX Options Market                                                                      Members, Participants, or Others
                                                                                                          with alternative trading systems that
                                                  Makers are designated as specialists on
                                                                                                          have been exempted from compliance                      No written comments were either
                                                  BX for all purposes under the Act or
                                                                                                          with the statutory standards applicable               solicited or received.
                                                  rules thereunder.41                                     to exchanges. Because competitors are
                                                     The Exchange believes that by making                                                                       III. Date of Effectiveness of the
                                                                                                          free to modify their own fees in
                                                  the proposed changes it is continuing to                                                                      Proposed Rule Change and Timing for
                                                                                                          response, and because market
                                                  incentivize Participants to execute more                participants may readily adjust their                 Commission Action
                                                  volume on the Exchange to further                       order routing practices, the Exchange                    Pursuant to Section 19(b)(3)(A)(ii) of
                                                  enhance liquidity in this market.                       believes that the degree to which fee                 the Act,43 the Exchange has designated
                                                  B. Self-Regulatory Organization’s                       changes in this market may impose any                 this proposal as establishing or changing
                                                  Statement on Burden on Competition                      burden on competition is extremely                    a due, fee, or other charge imposed by
                                                                                                          limited.                                              the self-regulatory organization on any
                                                    The Exchange does not believe that                       In terms of intra-market competition,
                                                  the proposed rule change will impose                                                                          person, whether or not the person is a
                                                                                                          the Exchange notes that price                         member of the self-regulatory
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                                                     40 Per a note to the Select Symbol Options Tier
                                                                                                          differentiation among different market                organization, which renders the
                                                  Schedule, Customer fee to add liquidity in Select       participants operating on the Exchange                proposed rule change effective upon
                                                  Symbols Options when contra to another Customer         (e.g., Customer and BX Options Market                 filing.
                                                  is $0.33 per contract. The only change in this note,    Maker) is reasonable. Customer activity,                 At any time within 60 days of the
                                                  which is currently applicable to the SPY Options        for example, enhances liquidity on the
                                                  Tier Schedule, is that the note will be applicable                                                            filing of the proposed rule change, the
                                                  to the Select Symbol Options Tier Schedule.             Exchange for the benefit of all market
                                                     41 See Chapter VII, Section 5, entitled              participants and benefits all market                    42 See   Chapter VII, Section 5.
                                                  ‘‘Obligations of Market Makers.’’                       participants by providing more trading                  43 15   U.S.C. 78s(b)(3)(A)(ii).



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                                                  14160                       Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Notices

                                                  Commission summarily may                                information that you wish to make                     change on February 22, 2016, in order
                                                  temporarily suspend such rule change if                 available publicly.                                   to transmit an updated pilot report that
                                                  it appears to the Commission that such                    All submissions should refer to File                supplements Exhibit 3 to the filing, and
                                                  action is: (i) Necessary or appropriate in              Number SR–BX–2016–016 and should                      to provide additional information
                                                  the public interest; (ii) for the protection            be submitted on or before April 6, 2016.              regarding transactions covered by the
                                                  of investors; or (iii) otherwise in                       For the Commission, by the Division of              Pilot Program and FLEX Option trading
                                                  furtherance of the purposes of the Act.                 Trading and Markets, pursuant to delegated            on the Exchange.5 The Commission is
                                                  If the Commission takes such action, the                authority.44                                          publishing this notice to solicit
                                                  Commission shall institute proceedings                  Robert W. Errett,                                     comments on Amendment No. 1 from
                                                  to determine whether the proposed rule                  Deputy Secretary.                                     interested persons and is approving the
                                                  should be approved or disapproved.                      [FR Doc. 2016–05854 Filed 3–15–16; 8:45 am]           proposed rule change, as modified by
                                                                                                                                                                Amendment No. 1, on an accelerated
                                                  IV. Solicitation of Comments                            BILLING CODE 8011–01–P
                                                                                                                                                                basis.
                                                    Interested persons are invited to
                                                  submit written data, views, and                                                                               II. Description of the Amended
                                                                                                          SECURITIES AND EXCHANGE                               Proposal
                                                  arguments concerning the foregoing,                     COMMISSION
                                                  including whether the proposed rule                                                                             FLEX Options, unlike traditional
                                                  change is consistent with the Act.                      [Release No. 34–77341; File No. SR–Phlx–              standardized options, allow investors to
                                                  Comments may be submitted by any of                     2015–94]                                              customize basic option terms, including
                                                  the following methods:                                                                                        size, expiration date, exercise style, and
                                                                                                          Self-Regulatory Organizations;
                                                                                                                                                                certain exercise prices.6 Pursuant to
                                                  Electronic Comments                                     NASDAQ OMX PHLX LLC; Notice of
                                                                                                                                                                Commentary .01 to Rule 1079, the
                                                                                                          Filing of Amendment No. 1 and Order
                                                    • Use the Commission’s Internet                                                                             Exchange currently has in place a Pilot
                                                                                                          Granting Accelerated Approval of
                                                  comment form (http://www.sec.gov/                                                                             Program under which the minimum size
                                                                                                          Proposed Rule Change, as Modified by
                                                  rules/sro.shtml); or                                                                                          requirements set forth in Rules
                                                                                                          Amendment No. 1, to Make Permanent
                                                    • Send an email to rule-comments@                                                                           1079(a)(8)(A)(i) and (ii), which apply to
                                                                                                          the Pilot Program Eliminating Minimum
                                                  sec.gov. Please include File Number SR–                                                                       RFQs for opening transactions in new
                                                                                                          Value Sizes for Opening Transactions
                                                  BX–2016–016 on the subject line.                                                                              series of FLEX Options, are eliminated.7
                                                                                                          in New Series of FLEX Options
                                                                                                                                                                Prior to the Pilot Program, pursuant to
                                                  Paper Comments
                                                                                                          March 10, 2016.                                       Rules 1079(a)(8)(A)(i) and (ii), the
                                                     • Send paper comments in triplicate                                                                        minimum value size for a RFQ for an
                                                  to Secretary, Securities and Exchange                   I. Introduction
                                                  Commission, 100 F Street NE.,                              On November 25, 2015, NASDAQ                          5 The Exchange attached an Exhibit 3 to its

                                                  Washington, DC 20549–1090.                              OMX PHLX LLC (‘‘Phlx’’ or                             proposed rule change that contains an initial report
                                                                                                                                                                summarizing pilot data collected for the period
                                                  All submissions should refer to File                    ‘‘Exchange’’) filed with the Securities               December 1, 2014 through July 31, 2015.
                                                  Number SR–BX–2016–016. This file                        and Exchange Commission                               Specifically, the report summarizes the trading
                                                  number should be included on the                        (‘‘Commission’’), pursuant to Section                 volume and underlying value of opening
                                                                                                          19(b)(1) of the Securities Exchange Act               transactions in new series of FLEX Options with a
                                                  subject line if email is used. To help the                                                                    size below the minimum value thresholds in force
                                                  Commission process and review your                      of 1934 (‘‘Act’’) 1 and Rule 19b–4                    before the pilot, as well as the types of customers
                                                  comments more efficiently, please use                   thereunder,2 a proposed rule change to                initiating such transactions. In Amendment No. 1,
                                                  only one method. The Commission will                    make permanent its pilot program                      the Exchange submitted an updated report as an
                                                                                                          (‘‘Pilot Program’’) eliminating minimum               amendment to Exhibit 3 that supplements the
                                                  post all comments on the Commission’s                                                                         original Exhibit 3 with summary pilot data for the
                                                  Internet Web site (http://www.sec.gov/                  value sizes for requests for quotes                   period August 1, 2015 through December 31, 2015
                                                  rules/sro.shtml).                                       (‘‘RFQs’’) for opening transactions in                (together with the initial report, ‘‘Pilot Report’’). In
                                                     Copies of the submission, all                        new series of flexible exchange options               addition, in Amendment No. 1 the Exchange
                                                                                                          (‘‘FLEX Options’’ or ‘‘FLEX’’). The                   compares the total volume and value of opening
                                                  subsequent amendments, all written                                                                            transactions in new series of FLEX Options covered
                                                  statements with respect to the proposed                 proposed rule change was published for                by the Pilot Program during the period December
                                                  rule change that are filed with the                     comment in the Federal Register on                    2014 through December 2015 to the total volume
                                                  Commission, and all written                             December 14, 2015.3 The Commission                    and value of all opening FLEX Option transactions
                                                                                                          received no comments on the proposal.                 in new series during the same period. Further, in
                                                  communications relating to the                                                                                Amendment No. 1 the Exchange also compares the
                                                  proposed rule change between the                        On January 28, 2016, the Commission                   Exchange’s FLEX Option trading volume to the
                                                  Commission and any person, other than                   designated a longer period within which               Exchange’s overall, combined trading volume for
                                                  those that may be withheld from the                     to approve the proposed rule change,                  standardized options and FLEX Options.
                                                                                                                                                                   6 See Notice; see also Phlx Rule (‘‘Rule’’) 1079.
                                                  public in accordance with the                           disapprove the proposed rule change, or
                                                                                                                                                                FLEX equity, FLEX index, and FLEX currency
                                                  provisions of 5 U.S.C. 552, will be                     institute proceedings to determine                    options are traded on the Exchange, but the Pilot
                                                  available for Web site viewing and                      whether to disapprove the proposed                    Program encompasses only FLEX equity and FLEX
                                                  printing in the Commission’s Public                     rule change.4 The Exchange filed                      index options, and does not encompass FLEX
                                                                                                          Amendment No. 1 to the proposed rule                  currency options. See Notice; Commentary .01 to
                                                  Reference Room, 100 F Street NE.,                                                                             Rule 1079; References to ‘‘FLEX Options’’ or
                                                  Washington, DC 20549, on official                         44 17
                                                                                                                                                                ‘‘FLEX’’ for purposes of this filing are meant to refer
                                                                                                                   CFR 200.30–3(a)(12).
                                                  business days between the hours of                        1 15
                                                                                                                                                                only to FLEX equity and FLEX index options.
                                                                                                                  U.S.C. 78s(b)(1).                                7 See Commentary .01 to Rule 1079; see also
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                                                  10:00 a.m. and 3:00 p.m. Copies of the                     2 17 CFR 240.19b–4.
                                                                                                                                                                Securities Exchange Act Release Nos. 62900
                                                  filing also will be available for                          3 See Securities Exchange Act Release No. 76593
                                                                                                                                                                (September 13, 2010), 75 FR 57098 (September 17,
                                                  inspection and copying at the principal                 (December 8, 2015), 80 FR 77399 (‘‘Notice’’).         2010) (SR–Phlx–2010–123) (establishing Pilot
                                                  office of the Exchange. All comments                       4 See Securities Exchange Act Release No. 76989,   Program); and 77153 (February 17, 2016) 81 FR
                                                  received will be posted without change;                 81 FR 5811 (February 3, 2016). The Commission         9039 (February 23, 2016) (SR–Phlx–2016–19)
                                                                                                          designated March 13, 2016, as the date by which       (extending Pilot Program until the earlier of March
                                                  the Commission does not edit personal                   it should approve, disapprove, or institute           15, 2016, or approval of the Pilot Program on a
                                                  identifying information from                            proceedings to determine whether to disapprove the    permanent basis). The term ‘‘request for quotes’’ is
                                                  submissions. You should submit only                     proposed rule change.                                 defined in Rule 1079(a)(11).



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Document Created: 2016-03-15 23:44:44
Document Modified: 2016-03-15 23:44:44
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation81 FR 14155 

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