82 FR 23915 - Self-Regulatory Organizations; Nasdaq MRX, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt Section IV of the MRX Fee Schedule
SECURITIES AND EXCHANGE COMMISSION Federal Register Volume 82, Issue 99 (May 24, 2017)
Federal Register Volume 82, Issue 99 (May 24, 2017)
| Page Range | 23915-23932 | |
| FR Document | 2017-10595 |
[Federal Register Volume 82, Number 99 (Wednesday, May 24, 2017)] [Notices] [Pages 23915-23932] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-10595] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-80726; File No. SR-MRX-2017-04] Self-Regulatory Organizations; Nasdaq MRX, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt Section IV of the MRX Fee Schedule May 18, 2017. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'' or ``Exchange Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that on May 12, 2017, Nasdaq MRX, LLC (``MRX'' or ``Exchange'') 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.\3\ The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. --------------------------------------------------------------------------- \1\ 15 U.S.C. 78s(b)(1). \2\ 17 CFR 240.19b-4. \3\ The Exchange originally filed the proposed rule change on May 3, 2017 under File No. SR-MRX-2017-03. The Exchange subsequently withdrew that filing on May 12, 2017 and filed this proposed rule change. --------------------------------------------------------------------------- I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to adopt a fee schedule to establish the fees for Industry Members related to the National Market System Plan Governing the Consolidated Audit Trail (the ``CAT NMS Plan'' or ``Plan'') at Section X [sic] of the MRX Fee Schedule. The text of the proposed rule change is available on the Exchange's Web site at www.ise.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 the Statutory Basis for, the Proposed Rule Change 1. Purpose The purpose of the proposed rule change is to adopt a fee schedule to establish the fees for Industry Members related to the CAT NMS Plan. Bats BYX Exchange, Inc., Bats BZX Exchange, Inc., Bats EDGA Exchange, Inc., Bats EDGX Exchange, Inc., BOX Options Exchange LLC, C2 Options Exchange, Incorporated, Chicago Board Options Exchange, Incorporated, Chicago Stock Exchange, Inc., Financial Industry Regulatory Authority, Inc. (``FINRA''), Investors' Exchange LLC, Miami International Securities Exchange, LLC, MIAX PEARL, LLC, NASDAQ BX, Inc., Nasdaq GEMX, LLC, Nasdaq ISE, LLC, Nasdaq MRX, LLC,\4\ NASDAQ PHLX LLC, The NASDAQ Stock Market LLC, New York Stock Exchange LLC, NYSE MKT LLC, NYSE Arca, Inc. and NYSE National, Inc.\5\ (collectively, the ``Participants'') filed with the Commission, pursuant to Section 11A of the Exchange Act \6\ and Rule 608 of Regulation NMS thereunder,\7\ the CAT NMS Plan.\8\ The Participants filed the Plan to comply with Rule 613 of Regulation NMS under the Exchange Act. The Plan was published for comment in the Federal Register on May 17, 2016,\9\ and approved by the Commission, as modified, on November 15, 2016.\10\ The Plan is designed to create, implement and maintain a consolidated audit trail (``CAT'') that would capture customer and order event information for orders in NMS Securities and OTC Equity Securities, across all markets, from the time of order inception through routing, cancellation, modification, or execution in a single consolidated data source. The Plan accomplishes this by creating CAT NMS, LLC (the ``Company''), of which each Participant is a member, to operate the CAT.\11\ Under the CAT NMS Plan, the Operating Committee of the Company (``Operating Committee'') has discretion to establish funding for the Company to operate the CAT, including establishing fees that the Participants will pay, and establishing fees for Industry Members that will be [[Page 23916]] implemented by the Participants (``CAT Fees'').\12\ The Participants are required to file with the SEC under Section 19(b) of the Exchange Act any such CAT Fees applicable to Industry Members that the Operating Committee approves.\13\ Accordingly, the Exchange submits this fee filing to propose the Consolidated Audit Trail Funding Fees, which will require Industry Members that are SRO members to pay the CAT Fees determined by the Operating Committee. --------------------------------------------------------------------------- \4\ ISE Gemini, LLC, ISE Mercury, LLC and International Securities Exchange, LLC have been renamed Nasdaq GEMX, LLC, Nasdaq MRX, LLC, and Nasdaq ISE, LLC, respectively. See Securities Exchange Act Release No. 80248 (March 15, 2017), 82 FR 14547 (March 21, 2017); Securities Exchange Act Release No. 80326 (March 29, 2017), 82 FR 16460 (April 4, 2017); and Securities Exchange Act Release No. 80325 (March 29, 2017), 82 FR 16445 (April 4, 2017). \5\ National Stock Exchange, Inc. has been renamed NYSE National, Inc. See Securities Exchange Act Release No. 79902 (Jan. 30, 2017), 82 FR 9258 (February 3, 2017). \6\ 15 U.S.C. 78k-1. \7\ 17 CFR 242.608. \8\ See Letter from the Participants to Brent J. Fields, Secretary, Commission, dated September 30, 2014; and Letter from Participants to Brent J. Fields, Secretary, Commission, dated February 27, 2015. On December 24, 2015, the Participants submitted an amendment to the CAT NMS Plan. See Letter from Participants to Brent J. Fields, Secretary, Commission, dated December 23, 2015. \9\ Securities Exchange Act Release No. 77724 (April 27, 2016), 81 FR 30614 (May 17, 2016). \10\ Securities Exchange Act Release No. 79318 (November 15, 2016), 81 FR 84696 (November 23, 2016) (``Approval Order''). \11\ The Plan also serves as the limited liability company agreement for the Company. \12\ Section 11.1(b) of the CAT NMS Plan. \13\ Id. --------------------------------------------------------------------------- (1) Executive Summary The following provides an executive summary of the CAT funding model approved by the Operating Committee, as well as Industry Members' rights and obligations related to the payment of CAT Fees calculated pursuant to the CAT funding model. A detailed description of the CAT funding model and the CAT Fees follows this executive summary. (A) CAT Funding ModelCAT Costs. The CAT funding model is designed to establish CAT-specific fees to collectively recover the costs of building and operating the CAT from all CAT Reporters, including Industry Members and Participants. The overall CAT costs for the calculation of the CAT Fees in this fee filing are comprised of Plan Processor CAT costs and non-Plan Processor CAT costs incurred, and estimated to be incurred, from November 21, 2016 through November 21, 2017. (See Section 3(a)(2)(E) [sic] below \14\) --------------------------------------------------------------------------- \14\ The Commission notes that references to Sections 3(a)(2) and 3(a)(3) in this Executive Summary should be instead to Sections II.A.1.(2) and II.A.1.(3), respectively. --------------------------------------------------------------------------- Bifurcated Funding Model. The CAT NMS Plan requires a bifurcated funding model, where costs associated with building and operating the CAT would be borne by (1) Participants and Industry Members that are Execution Venues for Eligible Securities through fixed tier fees based on market share, and (2) Industry Members (other than alternative trading systems (``ATSs'') that execute transactions in Eligible Securities (``Execution Venue ATSs'')) through fixed tier fees based on message traffic for Eligible Securities. (See Section 3(a)(2) [sic] below) Industry Member Fees. Each Industry Member (other than Execution Venue ATSs) will be placed into one of nine tiers of fixed fees, based on ``message traffic'' in Eligible Securities for a defined period (as discussed below). Prior to the start of CAT reporting, ``message traffic'' will be comprised of historical equity and equity options orders, cancels and quotes provided by each exchange and FINRA over the previous three months. After an Industry Member begins reporting to the CAT, ``message traffic'' will be calculated based on the Industry Member's Reportable Events reported to the CAT. Industry Members with lower levels of message traffic will pay a lower fee and Industry Members with higher levels of message traffic will pay a higher fee. (See Section 3(a)(2)(B) [sic] below) Execution Venue Fees. Each Equity Execution Venue will be placed in one of two tiers of fixed fees based on market share, and each Options Execution Venue will be placed in one of two tiers of fixed fees based on market share. Equity Execution Venue market share will be determined by calculating each Equity Execution Venue's proportion of the total volume of NMS Stock and OTC Equity shares reported by all Equity Execution Venues during the relevant time period. Similarly, market share for Options Execution Venues will be determined by calculating each Options Execution Venue's proportion of the total volume of Listed Options contracts reported by all Options Execution Venues during the relevant time period. Equity Execution Venues with a larger market share will pay a larger CAT Fee than Equity Execution Venues with a smaller market share. Similarly, Options Execution Venues with a larger market share will pay a larger CAT Fee than Options Execution Venues with a smaller market share. (See Section 3(a)(2)(C) [sic] below) Cost Allocation. For the reasons discussed below, in designing the model, the Operating Committee determined that 75 percent of total costs recovered would be allocated to Industry Members (other than Execution Venue ATSs) and 25 percent would be allocated to Execution Venues. In addition, the Operating Committee determined to allocate 75 percent of Execution Venue costs recovered to Equity Execution Venues and 25 percent to Options Execution Venues. (See Section 3(a)(2)(D) [sic] below) Comparability of Fees. The CAT funding model requires that the CAT Fees charged to the CAT Reporters with the most CAT-related activity (measured by market share and/or message traffic, as applicable) are generally comparable (where, for these comparability purposes, the tiered fee structure takes into consideration affiliations between or among CAT Reporters, whether Execution Venues and/or Industry Members). (See Section 3(a)(2)(F) [sic] below) (B) CAT Fees for Industry Members Fee Schedule. The quarterly CAT Fees for each tier for Industry Members are set forth in the two fee schedules in the Consolidated Audit Trail Funding Fees, one for Equity ATSs and one for Industry Members other than Equity ATSs. (See Section 3(a)(3)(B) [sic] below) Quarterly Invoices. Industry Members will be billed quarterly for CAT Fees, with the invoices payable within 30 days. The quarterly invoices will identify within which tier the Industry Member falls. (See Section 3(a)(3)(C) [sic] below) Centralized Payment. Each Industry Member will receive from the Company one invoice for its applicable CAT Fees, not separate invoices from each Participant of which it is a member. The Industry Members will pay its CAT Fees to the Company via the centralized system for the collection of CAT Fees established by the Operating Committee. (See Section 3(a)(3)(C) [sic] below) Billing Commencement. Industry Members will begin to receive invoices for CAT Fees as promptly as possible following the establishment of a billing mechanism. MRX will issue an information circular (``Circular'') to its members when the billing mechanism is established, specifying the date when such invoicing of Industry Members will commence. (See Section 3(a)(2)(G) [sic] below) (2) Description of the CAT Funding Model Article XI of the CAT NMS Plan requires the Operating Committee to approve the operating budget, including projected costs of developing and operating the CAT for the upcoming year. As set forth in Article XI of the CAT NMS Plan, the CAT NMS Plan requires a bifurcated funding model, where costs associated with building and operating the Central Repository would be borne by (1) Participants and Industry Members that are Execution Venues through fixed tier fees based on market share, and (2) Industry Members (other than Execution Venue ATSs) through fixed tier fees based on message traffic. In its order approving the CAT NMS Plan, the Commission determined that the proposed funding model was ``reasonable'' \15\ and ``reflects a reasonable exercise of the Participants' funding authority to recover the [[Page 23917]] Participants' costs related to the CAT.'' \16\ --------------------------------------------------------------------------- \15\ Approval Order at 84796. \16\ Id. at 84794. --------------------------------------------------------------------------- More specifically, the Commission stated in approving the CAT NMS Plan that ``[t]he Commission believes that the proposed funding model is reasonably designed to allocate the costs of the CAT between the Participants and Industry Members.'' \17\ The Commission further noted the following: --------------------------------------------------------------------------- \17\ Id. at 84795. The Commission believes that the proposed funding model reflects a reasonable exercise of the Participants' funding authority to recover the Participants' costs related to the CAT. The CAT is a regulatory facility jointly owned by the Participants and . . . the Exchange Act specifically permits the Participants to charge their members fees to fund their self-regulatory obligations. The Commission further believes that the proposed funding model is designed to impose fees reasonably related to the Participants' self-regulatory obligations because the fees would be directly associated with the costs of establishing and maintaining the CAT, and not unrelated SRO services.\18\ --------------------------------------------------------------------------- \18\ Id. at 84794. Accordingly, the funding model imposes fees on both Participants and Industry Members. In addition, as discussed in Appendix C of the CAT NMS Plan, the Operating Committee considered the advantages and disadvantages of a variety of alternative funding and cost allocation models before selecting the proposed model.\19\ After analyzing the various alternatives, the Operating Committee determined that the proposed tiered, fixed fee funding model provides a variety of advantages in comparison to the alternatives. First, the fixed fee model, as opposed to a variable fee model, provides transparency, ease of calculation, ease of billing and other administrative functions, and predictability of a fixed fee. Such factors are crucial to estimating a reliable revenue stream for the Company and for permitting CAT Reporters to reasonably predict their payment obligations for budgeting purposes.\20\ Additionally, a strictly variable or metered funding model based on message volume would be far more likely to affect market behavior and place an inappropriate burden on competition. Moreover, as the SEC noted in approving the CAT NMS Plan, ``[t]he Participants also have offered a reasonable basis for establishing a funding model based on broad tiers, in that it be may be easier to implement.'' \21\ --------------------------------------------------------------------------- \19\ Section B.7, Appendix C of the CAT NMS Plan, Approval Order at 85006. \20\ In choosing a tiered fee structure, the SROs concluded that the variety of benefits offered by a tiered fee structure, discussed above, outweighed the fact that Industry Members in any particular tier would pay different rates per message traffic order event (e.g., an Industry Member with the largest amount of message traffic in one tier would pay a smaller amount per order event than an Industry Member in the same tier with the least amount of message traffic). Such variation is the natural result of a tiered fee structure. \21\ Approval Order at 84796. --------------------------------------------------------------------------- In addition, multiple reviews of current broker-dealer order and trading data submitted under existing reporting requirements showed a wide range in activity among broker-dealers, with a number of broker- dealers submitting fewer than 1,000 orders per month and other broker- dealers submitting millions and even billions of orders in the same period. Accordingly, the CAT NMS Plan includes a tiered approach to fees. The tiered approach helps ensure that fees are equitably allocated among similarly situated CAT Reporters and furthers the goal of lessening the impact on smaller firms.\22\ The self-regulatory organizations considered several approaches to developing a tiered model, including defining fee tiers based on such factors as size of firm, message traffic or trading dollar volume. After analyzing the alternatives, it was concluded that the tiering should be based on the relative impact of CAT Reporters on the CAT System. --------------------------------------------------------------------------- \22\ Section B.7, Appendix C of the CAT NMS Plan, Approval Order at 85006. --------------------------------------------------------------------------- Accordingly, the CAT NMS Plan contemplates that costs will be allocated across the CAT Reporters on a tiered basis to allocate costs to those CAT Reporters that contribute more to the costs of creating, implementing and maintaining the CAT.\23\ The fees to be assessed at each tier are calculated so as to recoup a proportion of costs appropriate to the message traffic or market share (as applicable) from CAT Reporters in each tier. Therefore, Industry Members generating the most message traffic will be in the higher tiers, and therefore be charged a higher fee. Industry Members with lower levels of message traffic will be in lower tiers and will be assessed a smaller fee for the CAT.\24\ Correspondingly, Execution Venues with the highest market share will be in the top tier, and therefore will be charged a higher fee. Execution Venues with a lower market share will be in the lower tier and will be assessed a smaller fee for the CAT.\25\ --------------------------------------------------------------------------- \23\ Approval Order at 85005. \24\ Id. \25\ Id. --------------------------------------------------------------------------- The Commission also noted in approving the CAT NMS Plan that ``[t]he Participants have offered a credible justification for using different criteria to charge Execution Venues (market share) and Industry Members (message traffic)'' \26\ in the CAT funding model. While there are multiple factors that contribute to the cost of building, maintaining and using the CAT, processing and storage of incoming message traffic is one of the most significant cost drivers for the CAT.\27\ Thus, the CAT NMS Plan provides that the fees payable by Industry Members (other than Execution Venue ATSs) will be based on the message traffic generated by such Industry Member.\28\ --------------------------------------------------------------------------- \26\ Id. at 84796. \27\ Section B.7, Appendix C of the CAT NMS Plan, Approval Order at 85005. \28\ Section 11.3(b) of the CAT NMS Plan. --------------------------------------------------------------------------- The CAT NMS Plan provides that the Operating Committee will use different criteria to establish fees for Execution Venues and non- Execution Venues due to the fundamental differences between the two types of entities. In particular, the CAT NMS Plan provides that fees charged to CAT Reporters that are Execution Venues will be based on the level of market share and that costs charged to Industry Members (other than Execution Venue ATSs) will be based upon message traffic.\29\ Because most Participant message traffic consists of quotations, and Participants usually disseminate quotations in all instruments they trade, regardless of execution volume, Execution Venues that are Participants generally disseminate similar amounts of message traffic. Accordingly, basing fees for Execution Venues on message traffic would not provide the same degree of differentiation among Execution Venues that it does among Industry Members (other than Execution Venue ATSs). In contrast, execution volume more accurately delineates the different levels of trading activity of Execution Venues.\30\ --------------------------------------------------------------------------- \29\ Section 11.2(c) of the CAT NMS Plan. \30\ Section B.7, Appendix C of the CAT NMS Plan, Approval Order at 85005. --------------------------------------------------------------------------- The CAT NMS Plan's funding model also is structured to avoid a ``reduction in market quality.'' \31\ The tiered, fixed fee funding model is designed to limit the disincentives to providing liquidity to the market. For example, the Participants expect that a firm that had a large volume of quotes would likely be categorized in one of the upper tiers, and would not be assessed a fee for this traffic directly as they would under a more directly metered model. In contrast, strictly variable or metered funding models based on message volume were far more likely to affect market behavior. In approving the CAT NMS Plan, the SEC stated that ``[t]he [[Page 23918]] Participants also offered a reasonable basis for establishing a funding model based on broad tiers, in that it may be . . . less likely to have an incremental deterrent effect on liquidity provision.'' \32\ --------------------------------------------------------------------------- \31\ Section 11.2(e) of the CAT NMS Plan. \32\ Approval Order at 84796. --------------------------------------------------------------------------- The CAT NMS Plan is structured to avoid potential conflicts raised by the Operating Committee determining fees applicable to its own members--the Participants. First, the Company will be operated on a ``break-even'' basis, with fees imposed to cover costs and an appropriate reserve. Any surpluses will be treated as an operational reserve to offset future fees and will not be distributed to the Participants as profits.\33\ To ensure that the Participants' operation of the CAT will not contribute to the funding of their other operations, Section 11.1(c) of the CAT NMS Plan specifically states that ``[a]ny surplus of the Company's revenues over its expenses shall be treated as an operational reserve to offset future fees.'' In addition, as set forth in Article VIII of the CAT NMS Plan, the Company ``intends to operate in a manner such that it qualifies as a `business league' within the meaning of Section 501(c)(6) of the [Internal Revenue] Code.'' To qualify as a business league, an organization must ``not [be] organized for profit and no part of the net earnings of [the organization can] inure[] to the benefit of any private shareholder or individual.'' \34\ As the SEC stated when approving the CAT NMS Plan, ``the Commission believes that the Company's application for Section 501(c)(6) business league status addresses issues raised by commenters about the Plan's proposed allocation of profit and loss by mitigating concerns that the Company's earnings could be used to benefit individual Participants.'' \35\ --------------------------------------------------------------------------- \33\ Id. at 84792. \34\ 26 U.S.C. 501(c)(6). \35\ Approval Order at 84793. --------------------------------------------------------------------------- Finally, by adopting a CAT-specific fee, the Participants will be fully transparent regarding the costs of the CAT. Charging a general regulatory fee, which would be used to cover CAT costs as well as other regulatory costs, would be less transparent than the selected approach of charging a fee designated to cover CAT costs only. A full description of the funding model is set forth below. This description includes the framework for the funding model as set forth in the CAT NMS Plan, as well as the details as to how the funding model will be applied in practice, including the number of fee tiers and the applicable fees for each tier. MRX notes that the complete funding model is described below, including those fees that are to be paid by the Participants. The proposed Consolidated Audit Trail Funding Fees, however, do not apply to the Participants; the proposed Consolidated Audit Trail Funding Fees only apply to Industry Members. The CAT fees for Participants will be imposed separately by the Operating Committee pursuant to the CAT NMS Plan. (A) Funding Principles Section 11.2 of the CAT NMS Plan sets forth the principles that the Operating Committee applied in establishing the funding for the Company. The Operating Committee has considered these funding principles as well as the other funding requirements set forth in the CAT NMS Plan and in Rule 613 in developing the proposed funding model. The following are the funding principles in Section 11.2 of the CAT NMS Plan: To create transparent, predictable revenue streams for the Company that are aligned with the anticipated costs to build, operate and administer the CAT and other costs of the Company; To establish an allocation of the Company's related costs among Participants and Industry Members that is consistent with the Exchange Act, taking into account the timeline for implementation of the CAT and distinctions in the securities trading operations of Participants and Industry Members and their relative impact upon the Company's resources and operations; To establish a tiered fee structure in which the fees charged to: (i) CAT Reporters that are Execution Venues, including ATSs, are based upon the level of market share; (ii) Industry Members' non-ATS activities are based upon message traffic; (iii) the CAT Reporters with the most CAT-related activity (measured by market share and/or message traffic, as applicable) are generally comparable (where, for these comparability purposes, the tiered fee structure takes into consideration affiliations between or among CAT Reporters, whether Execution Venue and/or Industry Members); To provide for ease of billing and other administrative functions; To avoid any disincentives such as placing an inappropriate burden on competition and a reduction in market quality; and To build financial stability to support the Company as a going concern. (B) Industry Member Tiering Under Section 11.3(b) of the CAT NMS Plan, the Operating Committee is required to establish fixed fees to be payable by Industry Members, based on message traffic generated by such Industry Member, with the Operating Committee establishing at least five and no more than nine tiers. The CAT NMS Plan clarifies that the fixed fees payable by Industry Members pursuant to Section 11.3(b) shall, in addition to any other applicable message traffic, include message traffic generated by: (i) An ATS that does not execute orders that is sponsored by such Industry Member; and (ii) routing orders to and from any ATS sponsored by such Industry Member. In addition, the Industry Member fees will apply to Industry Members that act as routing broker-dealers for exchanges. The Industry Member fees will not be applicable, however, to an ATS that qualifies as an Execution Venue, as discussed in more detail in the section on Execution Venue tiering. In accordance with Section 11.3(b), the Operating Committee approved a tiered fee structure for Industry Members (other than Execution Venue ATSs) as described in this section. In determining the tiers, the Operating Committee considered the funding principles set forth in Section 11.2 of the CAT NMS Plan, seeking to create funding tiers that take into account the relative impact on CAT System resources of different Industry Members, and that establish comparable fees among the CAT Reporters with the most Reportable Events. The Operating Committee has determined that establishing nine tiers results in the fairest allocation of fees, best distinguishing between Industry Members with differing levels of message traffic. Thus, each such Industry Member will be placed into one of nine tiers of fixed fees, based on ``message traffic'' for a defined period (as discussed below). A nine tier structure was selected to provide the widest range of levels for tiering Industry Members such that Industry Members submitting significantly less message traffic to the CAT would be adequately differentiated from Industry Members submitting substantially more message traffic. The Operating Committee considered historical message traffic generated by Industry Members across all exchanges and as submitted to FINRA's Order Audit Trail System (``OATS''), and considered the distribution of firms with similar levels of message traffic, grouping together firms with similar levels of message [[Page 23919]] traffic. Based on this, the Operating Committee determined that nine tiers would best group firms with similar levels of message traffic, charging those firms with higher impact on the CAT more, while lowering the burden of Industry Members that have less CAT-related activity. Each Industry Member (other than Execution Venue ATSs) will be ranked by message traffic and tiered by predefined Industry Member percentages (the ``Industry Member Percentages''). The Operating Committee determined to use predefined percentages rather than fixed volume thresholds to allow the funding model to ensure that the total CAT fees collected recover the intended CAT costs regardless of changes in the total level of message traffic. To determine the fixed percentage of Industry Members in each tier, the Operating Committee analyzed historical message traffic generated by Industry Members across all exchanges and as submitted to OATS, and considered the distribution of firms with similar levels of message traffic, grouping together firms with similar levels of message traffic. Based on this, the Operating Committee identified tiers that would group firms with similar levels of message traffic, charging those firms with higher impact on the CAT more, while lowering the burden on Industry Members that have less CAT-related activity. The percentage of costs recovered by each Industry Member tier will be determined by predefined percentage allocations (the ``Industry Member Recovery Allocation''). In determining the fixed percentage allocation of costs recovered for each tier, the Operating Committee considered the impact of CAT Reporter message traffic on the CAT System as well as the distribution of total message volume across Industry Members while seeking to maintain comparable fees among the largest CAT Reporters. Accordingly, following the determination of the percentage of Industry Members in each tier, the Operating Committee identified the percentage of total market volume for each tier based on the historical message traffic upon which Industry Members had been initially ranked. Taking this into account along with the resulting percentage of total recovery, the percentage allocation of costs recovered for each tier were assigned, allocating higher percentages of recovery to tiers with higher levels of message traffic while avoiding any inappropriate burden on competition. Furthermore, by using percentages of Industry Members and costs recovered per tier, the Operating Committee sought to include stability and elasticity within the funding model, allowing the funding model to respond to changes in either the total number of Industry Members or the total level of message traffic. The following chart illustrates the breakdown of nine Industry Member tiers across the monthly average of total equity and equity options orders, cancels and quotes in Q1 2016 and identifies relative gaps across varying levels of Industry Member message traffic as well as message traffic thresholds between the largest of Industry Member message traffic gaps. The Operating Committee referenced similar distribution illustrations to determine the appropriate division of Industry Member percentages in each tier by considering the grouping of firms with similar levels of message traffic and seeking to identify relative breakpoints in the message traffic between such groupings. In reviewing the chart and its corresponding table, note that while these distribution illustrations were referenced to help differentiate between Industry Member tiers, the proposed funding model is directly driven, not by fixed message traffic thresholds, but rather by fixed percentages of Industry Members across tiers to account for fluctuating levels of message traffic across time and to provide for the financial stability of the CAT by ensuring that the funding model will recover the required amounts regardless of changes in the number of Industry Members or the amount of message traffic. Actual messages in any tier will vary based on the actual traffic in a given measurement period, as well as the number of firms included in the measurement period. The Industry Member Percentages and Industry Member Recovery Allocation for each tier will remain fixed with each Industry Member's tier to be reassigned periodically, as described below in Section 3(a)(1)(H) [sic]. [GRAPHIC] [TIFF OMITTED] TN24MY17.016 [[Page 23920]] ------------------------------------------------------------------------ Monthly average message traffic per Industry Industry Member tier Member (orders, quotes and cancels) ------------------------------------------------------------------------ Tier 1............................................... >10,000,000,000 Tier 2............................................... >1,000,000,000 Tier 3............................................... >100,000,000 Tier 4............................................... >2,500,000 Tier 5............................................... >200,000 Tier 6............................................... >50,000 Tier 7............................................... >5,000 Tier 8............................................... >1,000 Tier 9............................................... <=1,000 ------------------------------------------------------------------------ Based on the above analysis, the Operating Committee approved the following Industry Member Percentages and Recovery Allocations: ---------------------------------------------------------------------------------------------------------------- Percentage of Percentage of Industry Percentage of Industry Member tier Industry Member total recovery Members recovery ---------------------------------------------------------------------------------------------------------------- Tier 1.......................................................... 0.500 8.50 6.38 Tier 2.......................................................... 2.500 35.00 26.25 Tier 3.......................................................... 2.125 21.25 15.94 Tier 4.......................................................... 4.625 15.75 11.81 Tier 5.......................................................... 3.625 7.75 5.81 Tier 6.......................................................... 4.000 5.25 3.94 Tier 7.......................................................... 17.500 4.50 3.38 Tier 8.......................................................... 20.125 1.50 1.13 Tier 9.......................................................... 45.000 0.50 0.38 ----------------------------------------------- Total....................................................... 100 100 75 ---------------------------------------------------------------------------------------------------------------- For the purposes of creating these tiers based on message traffic, the Operating Committee determined to define the term ``message traffic'' separately for the period before the commencement of CAT reporting and for the period after the start of CAT reporting. The different definition for message traffic is necessary as there will be no Reportable Events as defined in the Plan, prior to the commencement of CAT reporting. Accordingly, prior to the start of CAT reporting, ``message traffic'' will be comprised of historical equity and equity options orders, cancels and quotes provided by each exchange and FINRA over the previous three months.\36\ Prior to the start of CAT reporting, orders would be comprised of the total number of equity and equity options orders received and originated by a member of an exchange or FINRA over the previous three-month period, including principal orders, cancel/replace orders, market maker orders originated by a member of an exchange, and reserve (iceberg) orders as well as order routes and executions originated by a member of FINRA, and excluding order rejects and implied orders.\37\ In addition, prior to the start of CAT reporting, cancels would be comprised of the total number of equity and equity option cancels received and originated by a member of an exchange or FINRA over a three-month period, excluding order modifications (e.g., order updates, order splits, partial cancels). Furthermore, prior to the start of CAT reporting, quotes would be comprised of information readily available to the exchanges and FINRA, such as the total number of historical equity and equity options quotes received and originated by a member of an exchange or FINRA over the prior three-month period. --------------------------------------------------------------------------- \36\ The SEC approved exemptive relief permitting Options Market Maker quotes to be reported to the Central Repository by the relevant Options Exchange in lieu of requiring that such reporting be done by both the Options Exchange and the Options Market Maker, as required by Rule 613 of Regulation NMS. See Securities Exchange Act Release No. 77265 (Mar. 1, 2017 [sic], 81 FR 11856 (March 7, 2016)). This exemption applies to Options Market Maker quotes for CAT reporting purposes only. Therefore, notwithstanding the reporting exemption provided for Options Market Maker quotes, Options Market Maker quotes will be included in the calculation of total message traffic for Options Market Makers for purposes of tiering under the CAT funding model both prior to CAT reporting and once CAT reporting commences. \37\ Consequently, firms that do not have ``message traffic'' reported to an exchange or OATS before they are reporting to the CAT would not be subject to a fee until they begin to report information to CAT. --------------------------------------------------------------------------- After an Industry Member begins reporting to the CAT, ``message traffic'' will be calculated based on the Industry Member's Reportable Events reported to the CAT as will be defined in the Technical Specifications.\38\ --------------------------------------------------------------------------- \38\ If an Industry Member (other than an Execution Venue ATS) has no orders, cancels or quotes prior to the commencement of CAT Reporting, or no Reportable Events after CAT reporting commences, then the Industry Member would not have a CAT fee obligation. --------------------------------------------------------------------------- The Operating Committee has determined to calculate fee tiers every three months, on a calendar quarter basis, based on message traffic from the prior three months. Based on its analysis of historical data, the Operating Committee believes that calculating tiers based on three months of data will provide the best balance between reflecting changes in activity by Industry Members while still providing predictability in the tiering for Industry Members. Because fee tiers will be calculated based on message traffic from the prior three months, the Operating Committee will begin calculating message traffic based on an Industry Member's Reportable Events reported to the CAT once the Industry Member has [[Page 23921]] been reporting to the CAT for three months. Prior to that, fee tiers will be calculated as discussed above with regard to the period prior to CAT reporting. (C) Execution Venue Tiering Under Section 11.3(a) of the CAT NMS Plan, the Operating Committee is required to establish fixed fees payable by Execution Venues. Section 1.1 of the CAT NMS Plan defines an Execution Venue as ``a Participant or an alternative trading system (``ATS'') (as defined in Rule 300 of Regulation ATS) that operates pursuant to Rule 301 of Regulation ATS (excluding any such ATS that does not execute orders).'' \39\ --------------------------------------------------------------------------- \39\ Although FINRA does not operate an execution venue, because it is a Participant, it is considered an ``Execution Venue'' under the Plan for purposes of determining fees. --------------------------------------------------------------------------- The Participants determined that ATSs should be included within the definition of Execution Venue. Given the similarity between the activity of exchanges and ATSs, both of which meet the definition of an ``exchange'' as set forth in the Exchange Act and the fact that the similar trading models would have similar anticipated burdens on the CAT, the Participants determined that ATSs should be treated in the same manner as the exchanges for the purposes of determining the level of fees associated with the CAT.\40\ --------------------------------------------------------------------------- \40\ Section B.7, Appendix C of the CAT NMS Plan, Approval Order at 85005. --------------------------------------------------------------------------- Given the differences between Execution Venues that trade NMS Stocks and/or OTC Equity Securities and Execution Venues that trade Listed Options, Section 11.3(a) addresses Execution Venues that trade NMS Stocks and/or OTC Equity Securities separately from Execution Venues that trade Listed Options. Equity and Options Execution Venues are treated separately for two reasons. First, the differing quoting behavior of Equity and Options Execution Venues makes comparison of activity between Execution Venues difficult. Second, Execution Venue tiers are calculated based on market share of share volume, and it is therefore difficult to compare market share between asset classes (i.e., equity shares versus options contracts). Discussed below is how the funding model treats the two types of Execution Venues. (I) NMS Stocks and OTC Equity Securities Section 11.3(a)(i) of the CAT NMS Plan states that each Execution Venue that (i) executes transactions or, (ii) in the case of a national securities association, has trades reported by its members to its trade reporting facility or facilities for reporting transactions effected otherwise than on an exchange, in NMS Stocks or OTC Equity Securities will pay a fixed fee depending on the market share of that Execution Venue in NMS Stocks and OTC Equity Securities, with the Operating Committee establishing at least two and not more than five tiers of fixed fees, based on an Execution Venue's NMS Stocks and OTC Equity Securities market share. For these purposes, market share for Execution Venues that execute transactions will be calculated by share volume, and market share for a national securities association that has trades reported by its members to its trade reporting facility or facilities for reporting transactions effected otherwise than on an exchange in NMS Stocks or OTC Equity Securities will be calculated based on share volume of trades reported, provided, however, that the share volume reported to such national securities association by an Execution Venue shall not be included in the calculation of such national security association's market share. In accordance with Section 11.3(a)(i) of the CAT NMS Plan, the Operating Committee approved a tiered fee structure for Equity Execution Venues and Option Execution Venues. In determining the Equity Execution Venue Tiers, the Operating Committee considered the funding principles set forth in Section 11.2 of the CAT NMS Plan, seeking to create funding tiers that take into account the relative impact on system resources of different Equity Execution Venues, and that establish comparable fees among the CAT Reporters with the most Reportable Events. Each Equity Execution Venue will be placed into one of two tiers of fixed fees, based on the Execution Venue's NMS Stocks and OTC Equity Securities market share. In choosing two tiers, the Operating Committee performed an analysis similar to that discussed above with regard to the non-Execution Venue Industry Members to determine the number of tiers for Equity Execution Venues. The Operating Committee determined to establish two tiers for Equity Execution Venues, rather than a larger number of tiers as established for non-Execution Venue Industry Members, because the two tiers were sufficient to distinguish between the smaller number of Equity Execution Venues based on market share. Furthermore, the incorporation of additional Equity Execution Venue tiers would result in significantly higher fees for Tier 1 Equity Execution Venues and diminish comparability between Execution Venues and Industry Members. Each Equity Execution Venue will be ranked by market share and tiered by predefined Execution Venue percentages, (the ``Equity Execution Venue Percentages''). In determining the fixed percentage of Equity Execution Venues in each tier, the Operating Committee looked at historical market share of share volume for execution venues. Equities Execution Venue market share of share volume were sourced from market statistics made publicly-available by Bats Global Markets, Inc. (``Bats''). ATS market share of share volume was sourced from market statistics made publicly-available by FINRA. FINRA trading [sic] reporting facility (``TRF'') market share of share volume was sourced from market statistics made publicly available by Bats. As indicated by FINRA, ATSs accounted for 37.80% of the share volume across the TRFs during the recent tiering period. A 37.80/62.20 split was applied to the ATS and non-ATS breakdown of FINRA market share, with FINRA tiered based only on the non-ATS portion of its TRF market share of share volume. Based on this, the Operating Committee considered the distribution of Execution Venues, and grouped together Execution Venues with similar levels of market share of share volume. In doing so, the Participants considered that, as previously noted, Execution Venues in many cases have similar levels of message traffic due to quoting activity, and determined that it was simpler and more appropriate to have fewer, rather than more, Execution Venue tiers to distinguish between Execution Venues. The percentage of costs recovered by each Equity Execution Venue tier will be determined by predefined percentage allocations (the ``Equity Execution Venue Recovery Allocation''). In determining the fixed percentage allocation of costs recovered for each tier, the Operating Committee considered the impact of CAT Reporter market share activity on the CAT System as well as the distribution of total market volume across Equity Execution Venues while seeking to maintain comparable fees among the largest CAT Reporters. Accordingly, following the determination of the percentage of Execution Venues in each tier, the Operating Committee identified the percentage of total market volume for each tier based on the historical market share upon which Execution Venues had been initially ranked. Taking this into account along with the resulting percentage of total recovery, [[Page 23922]] the percentage allocation of costs recovered for each tier were assigned, allocating higher percentages of recovery to the tier with a higher level of market share while avoiding any inappropriate burden on competition. Furthermore, due to the similar levels of impact on the CAT System across Execution Venues, there is less variation in CAT Fees between the highest and lowest of tiers for Execution Venues. Furthermore, by using percentages of Equity Execution Venues and costs recovered per tier, the Operating Committee sought to include stability and elasticity within the funding model, allowing the funding model to respond to changes in either the total number of Equity Execution Venues or changes in market share. Based on this analysis, the Operating Committee approved the following Equity Execution Venue Percentages and Recovery Allocations: ---------------------------------------------------------------------------------------------------------------- Percentage of Equity Percentage of Percentage of Equity Execution Venue tier Execution Execution total recovery Venues Venue Recovery ---------------------------------------------------------------------------------------------------------------- Tier 1.......................................................... 25.00 26.00 6.50 Tier 2.......................................................... 75.00 49.00 12.25 ----------------------------------------------- Total....................................................... 100 75 18.75 ---------------------------------------------------------------------------------------------------------------- The following table exhibits the relative separation of market share of share volume between Tier 1 and Tier 2 Equity Execution Venues. In reviewing the table, note that while this division was referenced as a data point to help differentiate between Equity Execution Venue tiers, the proposed funding model is directly driven not by market share thresholds, but rather by fixed percentages of Equity Execution Venues across tiers to account for fluctuating levels of market share across time. Actual market share in any tier will vary based on the actual market activity in a given measurement period, as well as the number of Equity Execution Venues included in the measurement period. The Equity Execution Venue Percentages and Equity Execution Venue Recovery Allocation for each tier will remain fixed with each Equity Execution Venue tier to be reassigned periodically, as described below in Section 3(a)(1)(I) [sic]. ------------------------------------------------------------------------ Equity market Equity Execution Venue tier share of share volume ------------------------------------------------------------------------ Tier 1.................................................. >=1 Tier 2.................................................. <1 ------------------------------------------------------------------------ (II) Listed Options Section 11.3(a)(ii) of the CAT NMS Plan states that each Execution Venue that executes transactions in Listed Options will pay a fixed fee depending on the Listed Options market share of that Execution Venue, with the Operating Committee establishing at least two and no more than five tiers of fixed fees, based on an Execution Venue's Listed Options market share. For these purposes, market share will be calculated by contract volume. In accordance with Section 11.3(a)(ii) of the CAT NMS Plan, the Operating Committee approved a tiered fee structure for Options Execution Venues. In determining the tiers, the Operating Committee considered the funding principles set forth in Section 11.2 of the CAT NMS Plan, seeking to create funding tiers that take into account the relative impact on system resources of different Options Execution Venues, and that establish comparable fees among the CAT Reporters with the most Reportable Events. Each Options Execution Venue will be placed into one of two tiers of fixed fees, based on the Execution Venue's Listed Options market share. In choosing two tiers, the Operating Committee performed an analysis similar to that discussed above with regard to Industry Members (other than Execution Venue ATSs) to determine the number of tiers for Options Execution Venues. The Operating Committee determined to establish two tiers for Options Execution Venues, rather than a larger number of tiers as established for Industry Members (other than Execution Venue ATSs), because the two tiers were sufficient to distinguish between the smaller number of Options Execution Venues based on market share. Furthermore, due to the smaller number of Options Execution Venues, the incorporation of additional Options Execution Venue tiers would result in significantly higher fees for Tier 1 Options Execution Venues and reduce comparability between Execution Venues and Industry Members. Each Options Execution Venue will be ranked by market share and tiered by predefined Execution Venue percentages, (the ``Options Execution Venue Percentages''). To determine the fixed percentage of Options Execution Venues in each tier, the Operating Committee analyzed the historical and publicly available market share of Options Execution Venues to group Options Execution Venues with similar market shares across the tiers. Options Execution Venue market share of share volume were sourced from market statistics made publicly-available by Bats. The process for developing the Options Execution Venue Percentages was the same as discussed above with regard to Equity Execution Venues. The percentage of costs recovered by each Options Execution Venue tier will be determined by predefined percentage allocations (the ``Options Execution Venue Recovery Allocation''). In determining the fixed percentage allocation of costs recovered for each tier, the Operating Committee considered the impact of CAT Reporter market share activity on the CAT System as well as the distribution of total market volume across Options Execution Venues while seeking to maintain comparable fees among the largest CAT Reporters. Furthermore, by using percentages of Options Execution Venues and costs recovered per tier, the Operating Committee sought to include stability and elasticity within the funding model, allowing the funding model to respond to changes in either the total number of Options Execution Venues or changes in market share. The process for developing the Options Execution Venue Recovery Allocation was the same as discussed above with regard to Equity Execution Venues. Based on this analysis, the Operating Committee approved the following Options Execution Venue Percentages and Recovery Allocations: [[Page 23923]] ---------------------------------------------------------------------------------------------------------------- Percentage of Options Percentage of Percentage of Options Execution Venue tier Execution Execution total recovery Venues Venue Recovery ---------------------------------------------------------------------------------------------------------------- Tier 1.......................................................... 75.00 20.00 5.00 Tier 2.......................................................... 25.00 5.00 1.25 ----------------------------------------------- Total....................................................... 100 25 6.25 ---------------------------------------------------------------------------------------------------------------- The following table exhibits the relative separation of market share of share volume between Tier 1 and Tier 2 Options Execution Venues. In reviewing the table, note that while this division was referenced as a data point to help differentiate between Options Execution Venue tiers, the proposed funding model is directly driven, not by market share thresholds, but rather by fixed percentages of Options Execution Venues across tiers to account for fluctuating levels of market share across time. Actual market share in any tier will vary based on the actual market activity in a given measurement period, as well as the number of Options Execution Venues included in the measurement period. The Options Execution Venue Percentages and Equity Execution Venue Recovery Allocation for each tier will remain fixed with each Options Execution Venue tier to be reassigned periodically, as described below in Section 3(a)(1)(I) [sic]. ------------------------------------------------------------------------ Options market Options Execution Venue tier share of share volume (%) ------------------------------------------------------------------------ Tier 1.................................................. >=1 Tier 2.................................................. <1 ------------------------------------------------------------------------ (III) Market Share/Tier Assignments The Operating Committee determined that, prior to the start of CAT reporting, market share for Execution Venues would be sourced from publicly-available market data. Options and equity volumes for Participants will be sourced from market data made publicly available by Bats while Execution Venue ATS volumes will be sourced from market data made publicly available by FINRA. Set forth in the Appendix are two charts, one listing the current Equity Execution Venues, each with its rank and tier, and one listing the current Options Execution Venues, each with its rank and tier. After the commencement of CAT reporting, market share for Execution Venues will be sourced from data reported to the CAT. Equity Execution Venue market share will be determined by calculating each Equity Execution Venue's proportion of the total volume of NMS Stock and OTC Equity shares reported by all Equity Execution Venues during the relevant time period. Similarly, market share for Options Execution Venues will be determined by calculating each Options Execution Venue's proportion of the total volume of Listed Options contracts reported by all Options Execution Venues during the relevant time period. The Operating Committee has determined to calculate fee tiers for Execution Venues every three months based on market share from the prior three months. Based on its analysis of historical data, the Operating Committee believes calculating tiers based on three months of data will provide the best balance between reflecting changes in activity by Execution Venues while still providing predictability in the tiering for Execution Venues. (D) Allocation of Costs In addition to the funding principles discussed above, including comparability of fees, Section 11.1(c) of the CAT NMS Plan also requires expenses to be fairly and reasonably shared among the Participants and Industry Members. Accordingly, in developing the proposed fee schedules pursuant to the funding model, the Operating Committee calculated how the CAT costs would be allocated between Industry Members and Execution Venues, and how the portion of CAT costs allocated to Execution Venues would be allocated between Equity Execution Venues and Options Execution Venues. These determinations are described below. (I) Allocation Between Industry Members and Execution Venues In determining the cost allocation between Industry Members (other than Execution Venue ATSs) and Execution Venues, the Operating Committee analyzed a range of possible splits for revenue recovered from such Industry Members and Execution Venues. Based on this analysis, the Operating Committee determined that 75 percent of total costs recovered would be allocated to Industry Members (other than Execution Venue ATSs) and 25 percent would be allocated to Execution Venues. The Operating Committee determined that this 75/25 division maintained the greatest level of comparability across the funding model, keeping in view that comparability should consider affiliations among or between CAT Reporters (e.g., firms with multiple Industry Members and/or exchange licenses). For example, the cost allocation establishes fees for the largest Industry Members (i.e., those Industry Members in Tiers 1, 2 and 3) that are comparable to the largest Equity Execution Venues and Options Execution Venues (i.e., those Execution Venues in Tier 1). In addition, the cost allocation establishes fees for Execution Venue complexes that are comparable to those of Industry Member complexes. For example, when analyzing alternative allocations, other possible allocations led to much higher fees for larger Industry Members than for larger Execution Venues or vice versa, and/or led to much higher fees for Industry Member complexes than Execution Venue complexes or vice versa. Furthermore, the allocation of total CAT costs recovered recognizes the difference in the number of CAT Reporters that are Industry Members versus CAT Reporters that are Execution Venues. Specifically, the cost allocation takes into consideration that there are approximately 25 times more Industry Members expected to report to the CAT than Execution Venues (e.g., an estimated 1,630 Industry Members versus 70 Execution Venues as of January 2017). (II) Allocation Between Equity Execution Venues and Options Execution Venues The Operating Committee also analyzed how the portion of CAT costs allocated to Execution Venues would be allocated between Equity Execution Venues and Options Execution Venues. In considering this allocation of costs, the Operating Committee analyzed a range of alternative splits for revenue recovered between Equity and Options Execution Venues, including a 70/30, 67/33, 65/35, 50/50 and 25/75 split. Based on this analysis, the Operating Committee determined to allocate 75 [[Page 23924]] percent of Execution Venue costs recovered to Equity Execution Venues and 25 percent to Options Execution Venues. The Operating Committee determined that a 75/25 division between Equity and Options Execution Venues maintained elasticity across the funding model as well the greatest level of fee equitability and comparability based on the current number of Equity and Options Execution Venues. For example, the allocation establishes fees for the larger Equity Execution Venues that are comparable to the larger Options Execution Venues, and fees for the smaller Equity Execution Venues that are comparable to the smaller Options Execution Venues. In addition to fee comparability between Equity Execution Venues and Options Execution Venues, the allocation also establishes equitability between larger (Tier 1) and smaller (Tier 2) Execution Venues based upon the level of market share. Furthermore, the allocation is intended to reflect the relative levels of current equity and options order events. (E) Fee Levels The Operating Committee determined to establish a CAT-specific fee to collectively recover the costs of building and operating the CAT. Accordingly, under the funding model, the sum of the CAT Fees is designed to recover the total cost of the CAT. The Operating Committee has determined overall CAT costs to be comprised of Plan Processor costs and non-Plan Processor costs, which are estimated to be $50,700,000 in total for the year beginning November 21, 2016.\41\ --------------------------------------------------------------------------- \41\ It is anticipated that CAT-related costs incurred prior to November 21, 2016 will be addressed via a separate fee filing. --------------------------------------------------------------------------- The Plan Processor costs relate to costs incurred by the Plan Processor and consist of the Plan Processor's current estimates of average yearly ongoing costs, including development cost, which total $37,500,000. This amount is based upon the fees due to the Plan Processor pursuant to the agreement with the Plan Processor. The non-Plan Processor estimated costs incurred and to be incurred by the Company through November 21, 2017 consist of three categories of costs. The first category of such costs are third party support costs, which include historic legal fees, consulting fees and audit fees from November 21, 2016 until the date of filing as well as estimated third party support costs for the rest of the year. These amount to an estimated $5,200,000. The second category of non-Plan Processor costs are estimated insurance costs for the year. Based on discussions with potential insurance providers, assuming $2-5 million insurance premium on $100 million in coverage, the Company has received an estimate of $3,000,000 for the annual cost. The final cost figures will be determined following receipt of final underwriter quotes. The third category of non-Plan Processor costs is the operational reserve, which is comprised of three months of ongoing Plan Processor costs ($9,375,000), third party support costs ($1,300,000) and insurance costs ($750,000). The Operating Committee aims to accumulate the necessary funds for the establishment of the three-month operating reserve for the Company through the CAT Fees charged to CAT Reporters for the year. On an ongoing basis, the Operating Committee will account for any potential need for the replenishment of the operating reserve or other changes to total cost during its annual budgeting process. The following table summarizes the Plan Processor and non-Plan Processor cost components which comprise the total CAT costs of $50,700,000. --------------------------------------------------------------------------- \42\ This $5,000,000 represents the gradual accumulation of the funds for a target operating reserve of $11,425,000. ------------------------------------------------------------------------ Cost category Cost component Amount ------------------------------------------------------------------------ Plan Processor................. Operational Costs...... $37,500,000 Non-Plan Processor............. Third Party Support 5,200,000 Costs. Operational Reserve.... \42\ 5,000,000 Insurance Costs........ 3,000,000 Estimated Total............ ....................... 50,700,000 ------------------------------------------------------------------------ Based on the estimated costs and the calculations for the funding model described above, the Operating Committee determined to impose the following fees: \43\ --------------------------------------------------------------------------- \43\ Note that all monthly, quarterly and annual CAT Fees have been rounded to the nearest dollar. --------------------------------------------------------------------------- For Industry Members (other than Execution Venue ATSs): ---------------------------------------------------------------------------------------------------------------- Monthly CAT Quarterly CAT CAT fees paid Tier fee fee annually \44\ ---------------------------------------------------------------------------------------------------------------- 1............................................................... $33,668 $101,004 $404,016 2............................................................... 27,051 81,153 324,612 3............................................................... 19,239 57,717 230,868 4............................................................... 6,655 19,965 79,860 5............................................................... 4,163 12,489 49,956 6............................................................... 2,560 7,680 30,720 7............................................................... 501 1,503 6,012 8............................................................... 145 435 1,740 9............................................................... 22 66 264 ---------------------------------------------------------------------------------------------------------------- For Execution Venues for NMS Stocks and OTC Equity Securities: --------------------------------------------------------------------------- \44\ This column represents the approximate total CAT Fees paid each year by each Industry Member (other than Execution Venue ATSs) (i.e., ``CAT Fees Paid Annually'' = ``Monthly CAT Fee'' x 12 months). [[Page 23925]] ---------------------------------------------------------------------------------------------------------------- Monthly CAT Quarterly CAT CAT fees paid Tier fee fee annually \45\ ---------------------------------------------------------------------------------------------------------------- 1............................................................... $21,125 $63,375 $253,500 2............................................................... 12,940 38,820 155,280 ---------------------------------------------------------------------------------------------------------------- For Execution Venues for Listed Options: --------------------------------------------------------------------------- \45\ This column represents the approximate total CAT Fees paid each year by each Execution Venue for NMS Stocks and OTC Equity Securities (i.e., ``CAT Fees Paid Annually'' = ``Monthly CAT Fee'' x 12 months). ---------------------------------------------------------------------------------------------------------------- Monthly CAT Quarterly CAT CAT fees paid Tier fee fee annually \46\ ---------------------------------------------------------------------------------------------------------------- 1............................................................... $19,205 $57,615 $230,460 2............................................................... 13,204 39,612 158,448 ---------------------------------------------------------------------------------------------------------------- As noted above, the fees set forth in the tables reflect the Operating Committee's decision to ensure comparable fees between Execution Venues and Industry Members. The fees of the top tiers for Industry Members (other than Execution Venue ATSs) are not identical to the top tier for Execution Venues, however, because the Operating Committee also determined that the fees for Execution Venue complexes should be comparable to those of Industry Member complexes. The difference in the fees reflects this decision to recognize affiliations. --------------------------------------------------------------------------- \46\ This column represents the approximate total CAT Fees paid each year by each Execution Venue for Listed Options (i.e., ``CAT Fees Paid Annually'' = ``Monthly CAT Fee'' x 12 months). --------------------------------------------------------------------------- The Operating Committee has calculated the schedule of effective fees for Industry Members (other than Execution Venue ATSs) and Execution Venues in the following manner. Note that the calculation of CAT Reporter fees assumes 53 Equity Execution Venues, 15 Options Execution Venues and 1,631 Industry Members (other than Execution Venue ATSs) as of January 2017. Calculation of Annual Tier Fees for Industry Members (``IM'') ---------------------------------------------------------------------------------------------------------------- Percentage of Percentage of industry Percentage of Industry member tier industry member total recovery members recovery ---------------------------------------------------------------------------------------------------------------- Tier 1.......................................................... 0.500 8.50 6.38 Tier 2.......................................................... 2.500 35.00 26.25 Tier 3.......................................................... 2.125 21.25 15.94 Tier 4.......................................................... 4.625 15.75 11.81 Tier 5.......................................................... 3.625 7.75 5.81 Tier 6.......................................................... 4.000 5.25 3.94 Tier 7.......................................................... 17.500 4.50 3.38 Tier 8.......................................................... 20.125 1.50 1.13 Tier 9.......................................................... 45.000 0.50 0.38 ----------------------------------------------- Total....................................................... 100 100 75 ---------------------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------ Estimated number Industry member tier of industry members ------------------------------------------------------------------------ Tier 1............................................... 8 Tier 2............................................... 41 Tier 3............................................... 35 Tier 4............................................... 75 Tier 5............................................... 59 Tier 6............................................... 65 Tier 7............................................... 285 Tier 8............................................... 328 Tier 9............................................... 735 ------------------ Total............................................ 1,631 ------------------------------------------------------------------------ [[Page 23926]] [GRAPHIC] [TIFF OMITTED] TN24MY17.017 Calculation of Annual Tier Fees for Equity Execution Venues (``EV'') ---------------------------------------------------------------------------------------------------------------- Percentage of Equity Percentage of Percentage of Equity Execution Venue Tier Execution Execution total recovery Venues Venue Recovery ---------------------------------------------------------------------------------------------------------------- Tier 1.......................................................... 25.00 26.00 6.50 Tier 2.......................................................... 75.00 49.00 12.25 ----------------------------------------------- Total....................................................... 100 75 18.75 ---------------------------------------------------------------------------------------------------------------- [[Page 23927]] ------------------------------------------------------------------------ Estimated number Equity Execution Venue Tier of Equity Execution Venues ------------------------------------------------------------------------ Tier 1............................................... 13 Tier 2............................................... 40 ------------------ Total............................................ 53 ------------------------------------------------------------------------ [GRAPHIC] [TIFF OMITTED] TN24MY17.018 Calculation of Annual Tier Fees for Options Execution Venues (``EV'') ---------------------------------------------------------------------------------------------------------------- Percentage of Options Percentage of Percentage of Options Execution Venue tier Execution Execution total recovery Venues Venue recovery ---------------------------------------------------------------------------------------------------------------- Tier 1.......................................................... 75.00 20.00 5.00 Tier 2.......................................................... 25.00 5.00 1.25 ----------------------------------------------- Total....................................................... 100 25 6.25 ---------------------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------ Estimated number Options Execution Venue Tier of Options Execution Venues ------------------------------------------------------------------------ Tier 1............................................... 11 Tier 2............................................... 4 ------------------ Total............................................ 15 ------------------------------------------------------------------------ [GRAPHIC] [TIFF OMITTED] TN24MY17.019 Traceability of Total CAT Fees ---------------------------------------------------------------------------------------------------------------- Estimated Type Industry Member tier number of CAT fees paid Total recovery Members annually ---------------------------------------------------------------------------------------------------------------- Industry Members.................... Tier 1.................... 8 $404,016 $3,232,128 Tier 2.................... 41 324,612 13,309,092 Tier 3.................... 35 230,868 8,080,380 Tier 4.................... 75 79,860 5,989,500 Tier 5.................... 59 49,956 2,947,404 Tier 6.................... 65 30,720 1,996,800 Tier 7.................... 285 6,012 1,713,420 Tier 8.................... 328 1,740 570,720 [[Page 23928]] Tier 9.................... 735 264 194,040 ----------------------------------------------- Total........................... .......................... 1,631 .............. 38,033,484 ---------------------------------------------------------------------------------------------------------------- Equity Execution Venues............. Tier 1.................... 13 253,500 3,295,500 Tier 2.................... 40 155,280 6,211,200 ----------------------------------------------- Total........................... .......................... 53 .............. 9,506,700 ---------------------------------------------------------------------------------------------------------------- Options Execution Venues............ Tier 1.................... 11 230,460 2,535,060 Tier 2.................... 4 158,448 633,792 ----------------------------------------------- Total........................... .......................... 15 .............. 3,168,852 ----------------------------------------------- Total....................... .......................... .............. .............. 50,709,036 ----------------------------------------------- Excess \47\................. .......................... .............. .............. 9,036 ---------------------------------------------------------------------------------------------------------------- (F) Comparability of Fees --------------------------------------------------------------------------- \47\ The amount in excess of the total CAT costs will contribute to the gradual accumulation of the target operating reserve of $11.425 million. --------------------------------------------------------------------------- The funding principles require a funding model in which the fees charged to the CAT Reporters with the most CAT-related activity (measured by market share and/or message traffic, as applicable) are generally comparable (where, for these comparability purposes, the tiered fee structure takes into consideration affiliations between or among CAT Reporters, whether Execution Venue and/or Industry Members). Accordingly, in creating the model, the Operating Committee sought to take account of the affiliations between or among CAT Reporters--that is, where affiliated entities may have multiple Industry Member and/or Execution Venue licenses, by maintaining relative comparability of fees among such affiliations with the most expected CAT-related activity. To do this, the Participants identified representative affiliations in the largest tier of both Execution Venues and Industry Members and compared the aggregate fees that would be paid by such firms. While the proposed fees for Tier 1 and Tier 2 Industry Members are relatively higher than those of Tier 1 and Tier 2 Execution Venues, Execution Venue complex fees are relatively higher than those of Industry Member complexes largely due to affiliations between Execution Venues. The tables set forth below describe the largest Execution Venue and Industry Member complexes and their associated fees: \48\ --------------------------------------------------------------------------- \48\ Note that the analysis of the complexes was performed on a best efforts basis, as all affiliations between the 1631 Industry Members may not be included. Execution Venue Complexes ---------------------------------------------------------------------------------------------------------------- Listing of Equity Listing of Options Total fees by Execution Venue Complex Execution Venue tiers Execution Venue tier EV complex ---------------------------------------------------------------------------------------------------------------- Execution Venue Complex 1............... Tier 1 (x2)...... Tier 1 (x4)...... $1,900,962 Tier 2 (x1)...... Tier 2 (x2)...... Execution Venue Complex 2............... Tier 1 (x2)...... Tier 1 (x2)...... 1,863,801 Tier 2 (x1)...... Execution Venue Complex 3............... Tier 1 (x2)...... Tier 1 (x2)...... 1,278,447 Tier 2 (x2)...... ---------------------------------------------------------------------------------------------------------------- Industry Member Complexes ---------------------------------------------------------------------------------------------------------------- Listing of Industry Member Total fees by Industry Member complex tiers Listing of ATS tiers IM complex ---------------------------------------------------------------------------------------------------------------- Industry Member Complex 1............... Tier 1 (x2)...... Tier 2 (x1)...... $963,300 Industry Member Complex 2............... Tier 1 (x1)...... Tier 2 (x3)...... 949,674 Tier 4 (x1)...... Industry Member Complex 3............... Tier 1 (x1)...... Tier 2 (x1)...... 883,888 Tier 2 (x1)...... Industry Member Complex 4............... Tier 1 (x1)...... N/A....................... 808,472 Tier 2 (x1)...... Tier 4 (x1)...... Industry Member Complex 5............... Tier 2 (x1)...... Tier 2 (x1)...... 796,595 Tier 3 (x1)...... Tier 4 (x1)...... Tier 7 (x1)...... ---------------------------------------------------------------------------------------------------------------- [[Page 23929]] (G) Billing Onset Under Section 11.1(c) of the CAT NMS Plan, to fund the development and implementation of the CAT, the Company shall time the imposition and collection of all fees on Participants and Industry Members in a manner reasonably related to the timing when the Company expects to incur such development and implementation costs. The Company is currently incurring such development and implementation costs and will continue to do so prior to the commencement of CAT reporting and thereafter. For example, the Plan Processor has required up-front payments to begin building the CAT. In addition, the Company continues to incur consultant and legal expenses on an on-going basis to implement the CAT. Accordingly, the Operating Committee determined that all CAT Reporters, including both Industry Members and Execution Venues (including Participants), would begin to be invoiced as promptly as possible following the establishment of a billing mechanism. MRX will issue a Circular to its members when the billing mechanism is established, specifying the date when such invoicing of Industry Members will commence. (H) Changes to Fee Levels and Tiers Section 11.3(d) of the CAT NMS Plan states that ``[t]he Operating Committee shall review such fee schedule on at least an annual basis and shall make any changes to such fee schedule that it deems appropriate. The Operating Committee is authorized to review such fee schedule on a more regular basis, but shall not make any changes on more than a semi-annual basis unless, pursuant to a Supermajority Vote, the Operating Committee concludes that such change is necessary for the adequate funding of the Company.'' With such reviews, the Operating Committee will review the distribution of Industry Members and Execution Venues across tiers, and make any updates to the percentage of CAT Reporters allocated to each tier as may be necessary. In addition, the reviews will evaluate the estimated ongoing CAT costs and the level of the operating reserve. To the extent that the total CAT costs decrease, the fees would be adjusted downward, and, to the extent that the total CAT costs increase, the fees would be adjusted upward.\49\ Furthermore, any surplus of the Company's revenues over its expenses is to be included within the operational reserve to offset future fees. The limitations on more frequent changes to the fee, however, are intended to provide budgeting certainty for the CAT Reporters and the Company.\50\ To the extent that the Operating Committee approves changes to the number of tiers in the funding model or the fees assigned to each tier, then MRX will file such changes with the SEC pursuant to Section 19(b) of the Exchange Act, and any such changes will become effective in accordance with the requirements of Section 19(b). --------------------------------------------------------------------------- \49\ The CAT Fees are designed to recover the costs associated with the CAT. Accordingly, CAT Fees would not be affected by increases or decreases in other non-CAT expenses incurred by the SROs, such as any changes in costs related to the retirement of existing regulatory systems, such as OATS. \50\ Section B.7, Appendix C of the CAT NMS Plan, Approval Order at 85006. --------------------------------------------------------------------------- (I) Initial and Periodic Tier Reassignments The Operating Committee has determined to calculate fee tiers every three months based on market share or message traffic, as applicable, from the prior three months. For the initial tier assignments, the Company will calculate the relevant tier for each CAT Reporter using the three months of data prior to the commencement date. As with the initial tier assignment, for the tri-monthly reassignments, the Company will calculate the relevant tier using the three months of data prior to the relevant tri-monthly date. MRX notes that any movement of CAT Reporters between tiers will not change the criteria for each tier or the fee amount corresponding to each tier. In performing the tri-monthly reassignments, MRX notes that the percentage of CAT Reporters in each assigned tier is relative. Therefore, a CAT Reporter's assigned tier will depend, not only on its own message traffic or market share, but it also will depend on the message traffic/market share across all CAT Reporters. For example, the percentage of Industry Members (other than Execution Venue ATSs) in each tier is relative such that such Industry Member's assigned tier will depend on message traffic generated across all CAT Reporters as well as the total number of CAT Reporters. The Operating Committee will inform CAT Reporters of their assigned tier every three months following the periodic tiering process, as the funding model will compare an individual CAT Reporter's activity to that of other CAT Reporters in the marketplace. The following demonstrates a tier reassignment. In accordance with the funding model, the top 75% of Options Execution Venues in market share are categorized as Tier 1 while the bottom 25% of Options Execution Venues in market share are categorized as Tier 2. In the sample scenario below, Options Execution Venue L is initially categorized as a Tier 2 Options Execution Venue in Period A due to its market share. When market share is recalculated for Period B, the market share of Execution Venue L increases, and it is therefore subsequently reranked and reassigned to Tier 1 in Period B. Correspondingly, Options Execution Venue K, initially a Tier 1 Options Execution Venue in Period A, is reassigned to Tier 2 in Period B due to decreases in its market share of share volume. -------------------------------------------------------------------------------------------------------------------------------------------------------- Period A Period B -------------------------------------------------------------------------------------------------------------------------------------------------------- Market share Market share Options Execution Venue rank Tier Options Execution Venue rank Tier -------------------------------------------------------------------------------------------------------------------------------------------------------- Options Execution Venue A...................... 1 1 Options Execution Venue A............. 1 1 Options Execution Venue B...................... 2 1 Options Execution Venue B............. 2 1 Options Execution Venue C...................... 3 1 Options Execution Venue C............. 3 1 Options Execution Venue D...................... 4 1 Options Execution Venue D............. 4 1 Options Execution Venue E...................... 5 1 Options Execution Venue E............. 5 1 Options Execution Venue F...................... 6 1 Options Execution Venue F............. 6 1 Options Execution Venue G...................... 7 1 Options Execution Venue I............. 7 1 Options Execution Venue H...................... 8 1 Options Execution Venue H............. 8 1 Options Execution Venue I...................... 9 1 Options Execution Venue G............. 9 1 Options Execution Venue J...................... 10 1 Options Execution Venue J............. 10 1 Options Execution Venue K...................... 11 1 Options Execution Venue L............. 11 1 [[Page 23930]] Options Execution Venue L...................... 12 2 Options Execution Venue K............. 12 2 Options Execution Venue M...................... 13 2 Options Execution Venue N............. 13 2 Options Execution Venue N...................... 14 2 Options Execution Venue M............. 14 2 Options Execution Venue O...................... 15 2 Options Execution Venue O............. 15 2 -------------------------------------------------------------------------------------------------------------------------------------------------------- (3) Proposed CAT Fee Schedule MRX proposes the Consolidated Audit Trail Funding Fees to implement the CAT Fees determined by the Operating Committee on MRX's Industry Members. The proposed fee schedule has three sections, covering definitions, the fee schedule for CAT Fees, and the timing and manner of payments. Each of these sections is discussed in detail below. (A) Definitions Paragraph (a) of the proposed fee schedule sets forth the definitions for the proposed fee schedule. Paragraph (a)(1) states that, for purposes of the Consolidated Audit Trail Funding Fees, the terms ``CAT NMS Plan,'' ``Industry Member,'' ``NMS Stock,'' ``OTC Equity Security'', and ``Participant'' are defined as set forth in Rule 900 (Consolidated Audit Trail--Definitions). The proposed fee schedule imposes different fees on Equity ATSs and Industry Members that are not Equity ATSs. Accordingly, the proposed fee schedule defines the term ``Equity ATS.'' First, paragraph (a)(2) defines an ``ATS'' to mean an alternative trading system as defined in Rule 300(a) of Regulation ATS under the Securities Exchange Act of 1934, as amended, that operates pursuant to Rule 301 of Regulation ATS. This is the same definition of an ATS as set forth in Section 1.1 of the CAT NMS Plan in the definition of an ``Execution Venue.'' Then, paragraph (a)(4) defines an ``Equity ATS'' as an ATS that executes transactions in NMS Stocks and/or OTC Equity Securities. Paragraph (a)(3) of the proposed fee schedule defines the term ``CAT Fee'' to mean the Consolidated Audit Trail Funding Fee(s) to be paid by Industry Members as set forth in paragraph (b) in the proposed fee schedule. Finally, Paragraph (a)(6) defines an ``Execution Venue'' as a Participant or an ATS (excluding any such ATS that does not execute orders). This definition is the same substantive definition as set forth in Section 1.1 of the CAT NMS Plan. Paragraph (a)(5) defines an ``Equity Execution Venue'' as an Execution Venue that trades NMS Stocks and/or OTC Equity Securities. (B) Fee Schedule MRX proposes to impose the CAT Fees applicable to its Industry Members through paragraph (b) of the proposed fee schedule. Paragraph (b)(1) of the proposed fee schedule sets forth the CAT Fees applicable to Industry Members other than Equity ATSs. Specifically, paragraph (b)(1) states that the Company will assign each Industry Member (other than an Equity ATS) to a fee tier once every quarter, where such tier assignment is calculated by ranking each Industry Member based on its total message traffic for the three months prior to the quarterly tier calculation day and assigning each Industry Member to a tier based on that ranking and predefined Industry Member percentages. The Industry Members with the highest total quarterly message traffic will be ranked in Tier 1, and the Industry Members with lowest quarterly message traffic will be ranked in Tier 9. Each quarter, each Industry Member (other than an Equity ATS) shall pay the following CAT Fee corresponding to the tier assigned by the Company for such Industry Member for that quarter: ------------------------------------------------------------------------ Percentage Tier of Industry Quarterly Members CAT fee ------------------------------------------------------------------------ 1............................................. 0.500 $101,004 2............................................. 2.500 81,153 3............................................. 2.125 57,717 4............................................. 4.625 19,965 5............................................. 3.625 12,489 6............................................. 4.000 7,680 7............................................. 17.500 1,503 8............................................. 20.125 435 9............................................. 45.000 66 ------------------------------------------------------------------------ Paragraph (b)(2) of the proposed fee schedule sets forth the CAT Fees applicable to Equity ATSs.\51\ These are the same fees that Participants that trade NMS Stocks and/or OTC Equity Securities will pay. Specifically, paragraph (b)(2) states that the Company will assign each Equity ATS to a fee tier once every quarter, where such tier assignment is calculated by ranking each Equity Execution Venue based on its total market share of NMS Stocks and OTC Equity Securities for the three months prior to the quarterly tier calculation day and assigning each Equity Execution Venue to a tier based on that ranking and predefined Equity Execution Venue percentages. The Equity Execution Venues with the higher total quarterly market share will be ranked in Tier 1, and the Equity Execution Venues with the lower quarterly market share will be ranked in Tier 2. Specifically, paragraph (b)(2) states that, each quarter, each Equity ATS shall pay the following CAT Fee corresponding to the tier assigned by the Company for such Equity ATS for that quarter: --------------------------------------------------------------------------- \51\ Note that no fee schedule is provided for Execution Venue ATSs that execute transactions in Listed Options, as no such Execution Venue ATSs currently exist due trading restrictions related to Listed Options. ------------------------------------------------------------------------ Percentage of Equity Quarterly Tier Execution CAT fee Venues ------------------------------------------------------------------------ 1............................................. 25.00 $63,375 2............................................. 75.00 38,820 ------------------------------------------------------------------------ (C) Timing and Manner of Payment Section 11.4 of the CAT NMS Plan states that the Operating Committee shall establish a system for the collection of fees authorized under the CAT NMS Plan. The Operating Committee may include such collection responsibility as a function of the Plan Processor or another administrator. To implement the payment process to be adopted by the Operating Committee, paragraph (c)(1) of the proposed fee schedule states that the Company will provide each Industry Member with one invoice each quarter for its CAT Fees as determined pursuant to paragraph (b) of the proposed fee schedule, regardless of whether the Industry Member is a member of multiple self-regulatory organizations. Paragraph (c)(1) further states that each Industry Member will pay its CAT Fees to the Company via the centralized system for the collection of CAT Fees established by the Company in the manner prescribed by the Company. MRX will provide Industry Members with details regarding the manner of payment of CAT Fees by Circular. Although the exact fee collection system and processes for CAT fees has [[Page 23931]] not yet been established, all CAT fees will be billed and collected centrally through the Company, via the Plan Processor or otherwise. Although each Participant will adopt its own fee schedule regarding CAT Fees, no CAT Fees or portion thereof will be collected by the individual Participants. Each Industry Member will receive from the Company one invoice for its applicable CAT fees, not separate invoices from each Participant of which it is a member. The Industry Members will pay the CAT Fees to the Company via the centralized system for the collection of CAT fees established by the Company.\52\ --------------------------------------------------------------------------- \52\ Section 11.4 of the CAT NMS Plan. --------------------------------------------------------------------------- Section 11.4 of the CAT NMS Plan also states that Participants shall require each Industry Member to pay all applicable authorized CAT Fees within thirty days after receipt of an invoice or other notice indicating payment is due (unless a longer payment period is otherwise indicated). Section 11.4 further states that, if an Industry Member fails to pay any such fee when due, such Industry Member shall pay interest on the outstanding balance from such due date until such fee is paid at a per annum rate equal to the lesser of: (i) The Prime Rate plus 300 basis points; or (ii) the maximum rate permitted by applicable law. Therefore, in accordance with Section 11.4 of the CAT NMS Plan, MRX proposed to adopt paragraph (c)(2) of the proposed fee schedule. Paragraph (c)(2) of the proposed fee schedule states that each Industry Member shall pay CAT Fees within thirty days after receipt of an invoice or other notice indicating payment is due (unless a longer payment period is otherwise indicated). If an Industry Member fails to pay any such fee when due, such Industry Member shall pay interest on the outstanding balance from such due date until such fee is paid at a per annum rate equal to the lesser of: (i) The Prime Rate plus 300 basis points; or (ii) the maximum rate permitted by applicable law. 2. Statutory Basis The Exchange believes that its proposal is consistent with Section 6(b) of the Act,\53\ in general, and furthers the objectives of Sections 6(b)(4) and 6(b)(5) of the Act,\54\ 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, is not designed to permit unfair discrimination between customers, issuers, brokers, or dealers, and is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and, in general, to protect investors and the public interest. --------------------------------------------------------------------------- \53\ 15 U.S.C. 78f(b). \54\ 15 U.S.C. 78f(b)(4) and (5). --------------------------------------------------------------------------- As discussed above, the SEC approved the bifurcated, tiered, fixed fee funding model in the CAT NMS Plan, finding it was reasonable and that it equitably allocated fees among Participants and Industry Members. The Exchange believes that the proposed tiered fees adopted pursuant to the funding model approved by the SEC in the CAT NMS Plan are reasonable, equitably allocated and not unfairly discriminatory. MRX believes that this proposal is consistent with the Act because it implements, interprets or clarifies the provisions of the Plan, and is designed to assist the Exchange and its Industry Members in meeting regulatory obligations pursuant to the Plan. In approving the Plan, the SEC noted that the Plan ``is necessary and appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanism of a national market system, or is otherwise in furtherance of the purposes of the Act.'' \55\ To the extent that this proposal implements, interprets or clarifies the Plan and applies specific requirements to Industry Members, MRX believes that this proposal furthers the objectives of the Plan, as identified by the SEC, and is therefore consistent with the Act. --------------------------------------------------------------------------- \55\ Approval Order at 84697. --------------------------------------------------------------------------- MRX believes that the proposed tiered fees are reasonable. First, the total CAT Fees to be collected would be directly associated with the costs of establishing and maintaining the CAT, where such costs include Plan Processor costs and costs related to insurance, third party services and the operational reserve. The CAT Fees would not cover Participant services unrelated to the CAT. In addition, any surplus CAT Fees cannot be distributed to the individual Participants; such surpluses must be used as a reserve to offset future fees. Given the direct relationship between the fees and the CAT costs, MRX believes that the total level of the CAT Fees is reasonable. In addition, the Exchange believes that the proposed CAT Fees are reasonably designed to allocate the total costs of the CAT equitably between and among the Participants and Industry Members, and are therefore not unfairly discriminatory. As discussed in detail above, the proposed tiered fees impose comparable fees on similarly situated CAT Reporters. For example, those with a larger impact on the CAT (measured via message traffic or market share) pay higher fees, whereas CAT Reporters with a smaller impact pay lower fees. Correspondingly, the tiered structure lessens the impact on smaller CAT Reporters by imposing smaller fees on those CAT Reporters with less market share or message traffic. In addition, the funding model takes into consideration affiliations between CAT Reporters, imposing comparable fees on such affiliated entities. Moreover, MRX believes that the division of the total CAT costs between Industry Members and Execution Venues, and the division of the Execution Venue portion of total costs between Equity and Options Execution Venues, is reasonably designed to allocate CAT costs among CAT Reporters. The 75/25 division between Industry Members and Execution Venues maintains the greatest level of comparability across the funding model, keeping in view that comparability should consider affiliations among or between CAT Reporters (e.g., firms with multiple Industry Members or exchange licenses). Similarly, the 75/25 division between Equity and Options Execution Venues maintains elasticity across the funding model as well as the greatest level of fee equitability and comparability based on the current number of Equity and Options Execution Venues. Finally, MRX believes that the proposed fees are reasonable because they would provide ease of calculation, ease of billing and other administrative functions, and predictability of a fixed fee. Such factors are crucial to estimating a reliable revenue stream for the Company and for permitting CAT Reporters to reasonably predict their payment obligations for budgeting purposes. B. Self-Regulatory Organization's Statement on Burden on Competition Section 6(b)(8) of the Act \56\ requires that SRO rules not impose any burden on competition that is not necessary or appropriate. MRX does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. MRX notes that the proposed rule change implements provisions of the CAT NMS Plan approved by the Commission, and is designed to assist MRX in meeting its regulatory obligations pursuant to the Plan. Similarly, all national securities [[Page 23932]] exchanges and FINRA are proposing this proposed fee schedule to implement the requirements of the CAT NMS Plan. Therefore, this is not a competitive fee filing and, therefore, it does not raise competition issues between and among the exchanges and FINRA. --------------------------------------------------------------------------- \56\ 15 U.S.C. 78f(b)(8). --------------------------------------------------------------------------- Moreover, as previously described, MRX believes that the proposed rule change fairly and equitably allocates costs among CAT Reporters. In particular, the proposed fee schedule is structured to impose comparable fees on similarly situated CAT Reporters, and lessen the impact on smaller CAT Reporters. CAT Reporters with similar levels of CAT activity will pay similar fees. For example, Industry Members (other than Execution Venue ATSs) with higher levels of message traffic will pay higher fees, and those with lower levels of message traffic will pay lower fees. Similarly, Execution Venue ATSs and other Execution Venues with larger market share will pay higher fees, and those with lower levels of market share will pay lower fees. Therefore, given that there is generally a relationship between message traffic and market share to the CAT Reporter's size, smaller CAT Reporters generally pay less than larger CAT Reporters. Accordingly, the Exchange does not believe that the CAT Fees would have a disproportionate effect on smaller or larger CAT Reporters. In addition, ATSs and exchanges will pay the same fees based on market share. Therefore, MRX does not believe that the fees will impose any burden on the competition between ATSs and exchanges. Accordingly, MRX believes that the proposed fees will minimize the potential for adverse effects on competition between CAT Reporters in the market. Furthermore, the tiered, fixed fee funding model limits the disincentives to providing liquidity to the market. Therefore, the proposed fees are structured to limit burdens on competitive quoting and other liquidity provision in the market. 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 The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.\57\ At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is (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. --------------------------------------------------------------------------- \57\ 15 U.S.C. 78s(b)(3)(A)(ii). --------------------------------------------------------------------------- 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-MRX-2017-04 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-MRX-2017-04. 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-MRX-2017-04, and should be submitted on or before June 14, 2017. --------------------------------------------------------------------------- \58\ 17 CFR 200.30-3(a)(12). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.\58\ Eduardo A. Aleman, Assistant Secretary. [FR Doc. 2017-10595 Filed 5-23-17; 8:45 am] BILLING CODE 8011-01-P
![Federal Register / Vol. 82, No. 99 / Wednesday, May 24, 2017 / Notices 23915
Commission, 100 F Street NE., or ‘‘Exchange Act’’),1 and Rule 19b–4 Industry Regulatory Authority, Inc.
Washington, DC 20549. thereunder,2 notice is hereby given that (‘‘FINRA’’), Investors’ Exchange LLC,
All submissions should refer to File on May 12, 2017, Nasdaq MRX, LLC Miami International Securities
Number SR–FICC–2017–013. This file (‘‘MRX’’ or ‘‘Exchange’’) filed with the Exchange, LLC, MIAX PEARL, LLC,
number should be included on the Securities and Exchange Commission NASDAQ BX, Inc., Nasdaq GEMX, LLC,
subject line if email is used. To help the (‘‘SEC’’ or ‘‘Commission’’) the proposed Nasdaq ISE, LLC, Nasdaq MRX, LLC,4
Commission process and review your rule change as described in Items I, II, NASDAQ PHLX LLC, The NASDAQ
comments more efficiently, please use and III below, which Items have been Stock Market LLC, New York Stock
only one method. The Commission will prepared by the Exchange.3 The Exchange LLC, NYSE MKT LLC, NYSE
post all comments on the Commission’s Commission is publishing this notice to Arca, Inc. and NYSE National, Inc.5
Internet Web site (http://www.sec.gov/ solicit comments on the proposed rule (collectively, the ‘‘Participants’’) filed
rules/sro.shtml). Copies of the change from interested persons. with the Commission, pursuant to
submission, all subsequent Section 11A of the Exchange Act 6 and
I. Self-Regulatory Organization’s
amendments, all written statements Rule 608 of Regulation NMS
Statement of the Terms of Substance of
with respect to the proposed rule thereunder,7 the CAT NMS Plan.8 The
the Proposed Rule Change
change that are filed with the Participants filed the Plan to comply
The Exchange proposes to adopt a fee with Rule 613 of Regulation NMS under
Commission, and all written
schedule to establish the fees for the Exchange Act. The Plan was
communications relating to the
Industry Members related to the published for comment in the Federal
proposed rule change between the
National Market System Plan Governing Register on May 17, 2016,9 and
Commission and any person, other than
the Consolidated Audit Trail (the ‘‘CAT approved by the Commission, as
those that may be withheld from the
NMS Plan’’ or ‘‘Plan’’) at Section X [sic] modified, on November 15, 2016.10 The
public in accordance with the
of the MRX Fee Schedule. Plan is designed to create, implement
provisions of 5 U.S.C. 552, will be The text of the proposed rule change
available for Web site viewing and and maintain a consolidated audit trail
is available on the Exchange’s Web site (‘‘CAT’’) that would capture customer
printing in the Commission’s Public at www.ise.com, at the principal office
Reference Room, 100 F Street NE., and order event information for orders
of the Exchange, and at the in NMS Securities and OTC Equity
Washington, DC 20549 on official Commission’s Public Reference Room.
business days between the hours of Securities, across all markets, from the
10:00 a.m. and 3:00 p.m. Copies of the II. Self-Regulatory Organization’s time of order inception through routing,
filing also will be available for Statement of the Purpose of, and cancellation, modification, or execution
inspection and copying at the principal Statutory Basis for, the Proposed Rule in a single consolidated data source.
office of FICC and on DTCC’s Web site Change The Plan accomplishes this by creating
CAT NMS, LLC (the ‘‘Company’’), of
(http://dtcc.com/legal/sec-rule- In its filing with the Commission, the which each Participant is a member, to
filings.aspx). All comments received Exchange included statements operate the CAT.11 Under the CAT NMS
will be posted without change; the concerning the purpose of and basis for Plan, the Operating Committee of the
Commission does not edit personal the proposed rule change and discussed Company (‘‘Operating Committee’’) has
identifying information from any comments it received on the discretion to establish funding for the
submissions. You should submit only proposed rule change. The text of these Company to operate the CAT, including
information that you wish to make statements may be examined at the establishing fees that the Participants
available publicly. All submissions places specified in Item IV below. The will pay, and establishing fees for
should refer to File Number SR–FICC– Exchange has prepared summaries, set Industry Members that will be
2017–013 and should be submitted on forth in sections A, B, and C below, of
or before June 14, 2017. the most significant aspects of such 4 ISE Gemini, LLC, ISE Mercury, LLC and
For the Commission, by the Division of statements. International Securities Exchange, LLC have been
Trading and Markets, pursuant to delegated renamed Nasdaq GEMX, LLC, Nasdaq MRX, LLC,
A. Self-Regulatory Organization’s and Nasdaq ISE, LLC, respectively. See Securities
authority.12 Statement of the Purpose of, and the Exchange Act Release No. 80248 (March 15, 2017),
Eduardo A. Aleman, Statutory Basis for, the Proposed Rule 82 FR 14547 (March 21, 2017); Securities Exchange
Assistant Secretary. Change Act Release No. 80326 (March 29, 2017), 82 FR
16460 (April 4, 2017); and Securities Exchange Act
[FR Doc. 2017–10585 Filed 5–23–17; 8:45 am]
1. Purpose Release No. 80325 (March 29, 2017), 82 FR 16445
BILLING CODE 8011–01–P (April 4, 2017).
The purpose of the proposed rule 5 National Stock Exchange, Inc. has been renamed
change is to adopt a fee schedule to NYSE National, Inc. See Securities Exchange Act
SECURITIES AND EXCHANGE establish the fees for Industry Members Release No. 79902 (Jan. 30, 2017), 82 FR 9258
(February 3, 2017).
COMMISSION related to the CAT NMS Plan. 6 15 U.S.C. 78k–1.
Bats BYX Exchange, Inc., Bats BZX 7 17 CFR 242.608.
[Release No. 34–80726; File No. SR–MRX– Exchange, Inc., Bats EDGA Exchange, 8 See Letter from the Participants to Brent J.
2017–04]
Inc., Bats EDGX Exchange, Inc., BOX Fields, Secretary, Commission, dated September 30,
Self-Regulatory Organizations; Nasdaq Options Exchange LLC, C2 Options 2014; and Letter from Participants to Brent J. Fields,
Exchange, Incorporated, Chicago Board Secretary, Commission, dated February 27, 2015.
MRX, LLC; Notice of Filing and On December 24, 2015, the Participants submitted
Options Exchange, Incorporated,
asabaliauskas on DSK3SPTVN1PROD with NOTICES
Immediate Effectiveness of Proposed an amendment to the CAT NMS Plan. See Letter
Rule Change To Adopt Section IV of Chicago Stock Exchange, Inc., Financial from Participants to Brent J. Fields, Secretary,
the MRX Fee Schedule Commission, dated December 23, 2015.
1 15 U.S.C. 78s(b)(1). 9 Securities Exchange Act Release No. 77724
May 18, 2017. 2 17 CFR 240.19b–4. (April 27, 2016), 81 FR 30614 (May 17, 2016).
3 The Exchange originally filed the proposed rule 10 Securities Exchange Act Release No. 79318
Pursuant to Section 19(b)(1) of the (November 15, 2016), 81 FR 84696 (November 23,
change on May 3, 2017 under File No. SR–MRX–
Securities Exchange Act of 1934 (‘‘Act’’ 2017–03. The Exchange subsequently withdrew that 2016) (‘‘Approval Order’’).
filing on May 12, 2017 and filed this proposed rule 11 The Plan also serves as the limited liability
12 17 CFR 200.30–3(a)(12). change. company agreement for the Company.
VerDate Sep<11>2014 19:43 May 23, 2017 Jkt 241001 PO 00000 Frm 00144 Fmt 4703 Sfmt 4703 E:\FR\FM\24MYN1.SGM 24MYN1](https://thefederalregister.org/doc/82_FR_24014/page/1.svg)
![23916 Federal Register / Vol. 82, No. 99 / Wednesday, May 24, 2017 / Notices
implemented by the Participants (‘‘CAT reporting, ‘‘message traffic’’ will be Members). (See Section 3(a)(2)(F) [sic]
Fees’’).12 The Participants are required comprised of historical equity and below)
to file with the SEC under Section 19(b) equity options orders, cancels and
(B) CAT Fees for Industry Members
of the Exchange Act any such CAT Fees quotes provided by each exchange and
applicable to Industry Members that the FINRA over the previous three months. • Fee Schedule. The quarterly CAT
Operating Committee approves.13 After an Industry Member begins Fees for each tier for Industry Members
Accordingly, the Exchange submits this reporting to the CAT, ‘‘message traffic’’ are set forth in the two fee schedules in
fee filing to propose the Consolidated will be calculated based on the Industry the Consolidated Audit Trail Funding
Audit Trail Funding Fees, which will Member’s Reportable Events reported to Fees, one for Equity ATSs and one for
require Industry Members that are SRO the CAT. Industry Members with lower Industry Members other than Equity
members to pay the CAT Fees levels of message traffic will pay a lower ATSs. (See Section 3(a)(3)(B) [sic]
determined by the Operating fee and Industry Members with higher below)
Committee. levels of message traffic will pay a
• Quarterly Invoices. Industry
higher fee. (See Section 3(a)(2)(B) [sic]
(1) Executive Summary Members will be billed quarterly for
below)
The following provides an executive • Execution Venue Fees. Each Equity CAT Fees, with the invoices payable
summary of the CAT funding model Execution Venue will be placed in one within 30 days. The quarterly invoices
approved by the Operating Committee, of two tiers of fixed fees based on will identify within which tier the
as well as Industry Members’ rights and market share, and each Options Industry Member falls. (See Section
obligations related to the payment of Execution Venue will be placed in one 3(a)(3)(C) [sic] below)
CAT Fees calculated pursuant to the of two tiers of fixed fees based on • Centralized Payment. Each Industry
CAT funding model. A detailed market share. Equity Execution Venue Member will receive from the Company
description of the CAT funding model market share will be determined by one invoice for its applicable CAT Fees,
and the CAT Fees follows this executive calculating each Equity Execution not separate invoices from each
summary. Venue’s proportion of the total volume Participant of which it is a member. The
(A) CAT Funding Model of NMS Stock and OTC Equity shares Industry Members will pay its CAT Fees
reported by all Equity Execution Venues to the Company via the centralized
• CAT Costs. The CAT funding model during the relevant time period. system for the collection of CAT Fees
is designed to establish CAT-specific Similarly, market share for Options established by the Operating Committee.
fees to collectively recover the costs of Execution Venues will be determined by (See Section 3(a)(3)(C) [sic] below)
building and operating the CAT from all calculating each Options Execution
CAT Reporters, including Industry • Billing Commencement. Industry
Venue’s proportion of the total volume Members will begin to receive invoices
Members and Participants. The overall of Listed Options contracts reported by
CAT costs for the calculation of the CAT for CAT Fees as promptly as possible
all Options Execution Venues during following the establishment of a billing
Fees in this fee filing are comprised of the relevant time period. Equity
Plan Processor CAT costs and non-Plan mechanism. MRX will issue an
Execution Venues with a larger market information circular (‘‘Circular’’) to its
Processor CAT costs incurred, and share will pay a larger CAT Fee than
estimated to be incurred, from members when the billing mechanism is
Equity Execution Venues with a smaller established, specifying the date when
November 21, 2016 through November market share. Similarly, Options
21, 2017. (See Section 3(a)(2)(E) [sic] such invoicing of Industry Members
Execution Venues with a larger market will commence. (See Section 3(a)(2)(G)
below 14) share will pay a larger CAT Fee than
• Bifurcated Funding Model. The [sic] below)
Options Execution Venues with a
CAT NMS Plan requires a bifurcated smaller market share. (See Section (2) Description of the CAT Funding
funding model, where costs associated 3(a)(2)(C) [sic] below) Model
with building and operating the CAT • Cost Allocation. For the reasons
would be borne by (1) Participants and discussed below, in designing the Article XI of the CAT NMS Plan
Industry Members that are Execution model, the Operating Committee requires the Operating Committee to
Venues for Eligible Securities through determined that 75 percent of total costs approve the operating budget, including
fixed tier fees based on market share, recovered would be allocated to projected costs of developing and
and (2) Industry Members (other than Industry Members (other than Execution operating the CAT for the upcoming
alternative trading systems (‘‘ATSs’’) Venue ATSs) and 25 percent would be year. As set forth in Article XI of the
that execute transactions in Eligible allocated to Execution Venues. In CAT NMS Plan, the CAT NMS Plan
Securities (‘‘Execution Venue ATSs’’)) addition, the Operating Committee requires a bifurcated funding model,
through fixed tier fees based on message determined to allocate 75 percent of where costs associated with building
traffic for Eligible Securities. (See Execution Venue costs recovered to and operating the Central Repository
Section 3(a)(2) [sic] below) Equity Execution Venues and 25 percent would be borne by (1) Participants and
• Industry Member Fees. Each to Options Execution Venues. (See Industry Members that are Execution
Industry Member (other than Execution Section 3(a)(2)(D) [sic] below) Venues through fixed tier fees based on
Venue ATSs) will be placed into one of • Comparability of Fees. The CAT market share, and (2) Industry Members
nine tiers of fixed fees, based on funding model requires that the CAT (other than Execution Venue ATSs)
‘‘message traffic’’ in Eligible Securities Fees charged to the CAT Reporters with through fixed tier fees based on message
asabaliauskas on DSK3SPTVN1PROD with NOTICES
for a defined period (as discussed the most CAT-related activity (measured traffic. In its order approving the CAT
below). Prior to the start of CAT by market share and/or message traffic, NMS Plan, the Commission determined
as applicable) are generally comparable that the proposed funding model was
12 Section 11.1(b) of the CAT NMS Plan. (where, for these comparability ‘‘reasonable’’ 15 and ‘‘reflects a
13 Id.
purposes, the tiered fee structure takes reasonable exercise of the Participants’
14 The Commission notes that references to
into consideration affiliations between funding authority to recover the
Sections 3(a)(2) and 3(a)(3) in this Executive
Summary should be instead to Sections II.A.1.(2) or among CAT Reporters, whether
and II.A.1.(3), respectively. Execution Venues and/or Industry 15 Approval Order at 84796.
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![Federal Register / Vol. 82, No. 99 / Wednesday, May 24, 2017 / Notices 23917
Participants’ costs related to the behavior and place an inappropriate criteria to charge Execution Venues
CAT.’’ 16 burden on competition. Moreover, as (market share) and Industry Members
More specifically, the Commission the SEC noted in approving the CAT (message traffic)’’ 26 in the CAT funding
stated in approving the CAT NMS Plan NMS Plan, ‘‘[t]he Participants also have model. While there are multiple factors
that ‘‘[t]he Commission believes that the offered a reasonable basis for that contribute to the cost of building,
proposed funding model is reasonably establishing a funding model based on maintaining and using the CAT,
designed to allocate the costs of the CAT broad tiers, in that it be may be easier processing and storage of incoming
between the Participants and Industry to implement.’’ 21 message traffic is one of the most
Members.’’ 17 The Commission further In addition, multiple reviews of significant cost drivers for the CAT.27
noted the following: current broker-dealer order and trading Thus, the CAT NMS Plan provides that
The Commission believes that the data submitted under existing reporting the fees payable by Industry Members
proposed funding model reflects a reasonable requirements showed a wide range in (other than Execution Venue ATSs) will
exercise of the Participants’ funding activity among broker-dealers, with a be based on the message traffic
authority to recover the Participants’ costs number of broker-dealers submitting generated by such Industry Member.28
related to the CAT. The CAT is a regulatory fewer than 1,000 orders per month and The CAT NMS Plan provides that the
facility jointly owned by the Participants and other broker-dealers submitting millions Operating Committee will use different
. . . the Exchange Act specifically permits and even billions of orders in the same criteria to establish fees for Execution
the Participants to charge their members fees Venues and non-Execution Venues due
period. Accordingly, the CAT NMS Plan
to fund their self-regulatory obligations. The to the fundamental differences between
Commission further believes that the includes a tiered approach to fees. The
tiered approach helps ensure that fees the two types of entities. In particular,
proposed funding model is designed to
impose fees reasonably related to the are equitably allocated among similarly the CAT NMS Plan provides that fees
Participants’ self-regulatory obligations situated CAT Reporters and furthers the charged to CAT Reporters that are
because the fees would be directly associated goal of lessening the impact on smaller Execution Venues will be based on the
with the costs of establishing and firms.22 The self-regulatory level of market share and that costs
maintaining the CAT, and not unrelated SRO organizations considered several charged to Industry Members (other
services.18 approaches to developing a tiered than Execution Venue ATSs) will be
Accordingly, the funding model model, including defining fee tiers based upon message traffic.29 Because
imposes fees on both Participants and based on such factors as size of firm, most Participant message traffic consists
Industry Members. message traffic or trading dollar volume. of quotations, and Participants usually
In addition, as discussed in Appendix After analyzing the alternatives, it was disseminate quotations in all
C of the CAT NMS Plan, the Operating concluded that the tiering should be instruments they trade, regardless of
Committee considered the advantages based on the relative impact of CAT execution volume, Execution Venues
and disadvantages of a variety of Reporters on the CAT System. that are Participants generally
alternative funding and cost allocation Accordingly, the CAT NMS Plan disseminate similar amounts of message
models before selecting the proposed contemplates that costs will be allocated traffic. Accordingly, basing fees for
model.19 After analyzing the various across the CAT Reporters on a tiered Execution Venues on message traffic
alternatives, the Operating Committee basis to allocate costs to those CAT would not provide the same degree of
determined that the proposed tiered, Reporters that contribute more to the differentiation among Execution Venues
fixed fee funding model provides a costs of creating, implementing and that it does among Industry Members
variety of advantages in comparison to maintaining the CAT.23 The fees to be (other than Execution Venue ATSs). In
the alternatives. First, the fixed fee assessed at each tier are calculated so as contrast, execution volume more
model, as opposed to a variable fee to recoup a proportion of costs accurately delineates the different levels
model, provides transparency, ease of appropriate to the message traffic or of trading activity of Execution
calculation, ease of billing and other market share (as applicable) from CAT Venues.30
administrative functions, and The CAT NMS Plan’s funding model
Reporters in each tier. Therefore,
predictability of a fixed fee. Such factors also is structured to avoid a ‘‘reduction
Industry Members generating the most
are crucial to estimating a reliable in market quality.’’ 31 The tiered, fixed
message traffic will be in the higher
fee funding model is designed to limit
revenue stream for the Company and for tiers, and therefore be charged a higher
the disincentives to providing liquidity
permitting CAT Reporters to reasonably fee. Industry Members with lower levels
to the market. For example, the
predict their payment obligations for of message traffic will be in lower tiers
Participants expect that a firm that had
budgeting purposes.20 Additionally, a and will be assessed a smaller fee for the
a large volume of quotes would likely be
strictly variable or metered funding CAT.24 Correspondingly, Execution categorized in one of the upper tiers,
model based on message volume would Venues with the highest market share and would not be assessed a fee for this
be far more likely to affect market will be in the top tier, and therefore will traffic directly as they would under a
be charged a higher fee. Execution more directly metered model. In
16 Id. at 84794. Venues with a lower market share will contrast, strictly variable or metered
17 Id. at 84795. be in the lower tier and will be assessed funding models based on message
18 Id. at 84794.
19 Section B.7, Appendix C of the CAT NMS Plan,
a smaller fee for the CAT.25 volume were far more likely to affect
Approval Order at 85006.
The Commission also noted in market behavior. In approving the CAT
approving the CAT NMS Plan that NMS Plan, the SEC stated that ‘‘[t]he
asabaliauskas on DSK3SPTVN1PROD with NOTICES
20 In choosing a tiered fee structure, the SROs
concluded that the variety of benefits offered by a ‘‘[t]he Participants have offered a
tiered fee structure, discussed above, outweighed credible justification for using different 26 Id.
at 84796.
the fact that Industry Members in any particular tier 27 Section
would pay different rates per message traffic order B.7, Appendix C of the CAT NMS Plan,
21 Approval Order at 84796.
event (e.g., an Industry Member with the largest Approval Order at 85005.
22 SectionB.7, Appendix C of the CAT NMS Plan, 28 Section 11.3(b) of the CAT NMS Plan.
amount of message traffic in one tier would pay a
smaller amount per order event than an Industry Approval Order at 85006. 29 Section 11.2(c) of the CAT NMS Plan.
23 Approval Order at 85005. 30 Section B.7, Appendix C of the CAT NMS Plan,
Member in the same tier with the least amount of
24 Id. Approval Order at 85005.
message traffic). Such variation is the natural result
of a tiered fee structure. 25 Id. 31 Section 11.2(e) of the CAT NMS Plan.
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![23918 Federal Register / Vol. 82, No. 99 / Wednesday, May 24, 2017 / Notices
Participants also offered a reasonable number of fee tiers and the applicable (B) Industry Member Tiering
basis for establishing a funding model fees for each tier. MRX notes that the Under Section 11.3(b) of the CAT
based on broad tiers, in that it may be complete funding model is described NMS Plan, the Operating Committee is
. . . less likely to have an incremental below, including those fees that are to required to establish fixed fees to be
deterrent effect on liquidity be paid by the Participants. The payable by Industry Members, based on
provision.’’ 32 proposed Consolidated Audit Trail message traffic generated by such
The CAT NMS Plan is structured to Funding Fees, however, do not apply to Industry Member, with the Operating
avoid potential conflicts raised by the the Participants; the proposed Committee establishing at least five and
Operating Committee determining fees Consolidated Audit Trail Funding Fees no more than nine tiers.
applicable to its own members—the only apply to Industry Members. The The CAT NMS Plan clarifies that the
Participants. First, the Company will be CAT fees for Participants will be fixed fees payable by Industry Members
operated on a ‘‘break-even’’ basis, with imposed separately by the Operating pursuant to Section 11.3(b) shall, in
fees imposed to cover costs and an Committee pursuant to the CAT NMS addition to any other applicable
appropriate reserve. Any surpluses will Plan. message traffic, include message traffic
be treated as an operational reserve to
(A) Funding Principles generated by: (i) An ATS that does not
offset future fees and will not be
Section 11.2 of the CAT NMS Plan execute orders that is sponsored by such
distributed to the Participants as
sets forth the principles that the Industry Member; and (ii) routing orders
profits.33 To ensure that the
Operating Committee applied in to and from any ATS sponsored by such
Participants’ operation of the CAT will
establishing the funding for the Industry Member. In addition, the
not contribute to the funding of their
Company. The Operating Committee has Industry Member fees will apply to
other operations, Section 11.1(c) of the
considered these funding principles as Industry Members that act as routing
CAT NMS Plan specifically states that
well as the other funding requirements broker-dealers for exchanges. The
‘‘[a]ny surplus of the Company’s
set forth in the CAT NMS Plan and in Industry Member fees will not be
revenues over its expenses shall be
Rule 613 in developing the proposed applicable, however, to an ATS that
treated as an operational reserve to
funding model. The following are the qualifies as an Execution Venue, as
offset future fees.’’ In addition, as set
funding principles in Section 11.2 of the discussed in more detail in the section
forth in Article VIII of the CAT NMS
CAT NMS Plan: on Execution Venue tiering.
Plan, the Company ‘‘intends to operate
• To create transparent, predictable In accordance with Section 11.3(b),
in a manner such that it qualifies as a
revenue streams for the Company that the Operating Committee approved a
‘business league’ within the meaning of
are aligned with the anticipated costs to tiered fee structure for Industry
Section 501(c)(6) of the [Internal
build, operate and administer the CAT Members (other than Execution Venue
Revenue] Code.’’ To qualify as a
and other costs of the Company; ATSs) as described in this section. In
business league, an organization must
• To establish an allocation of the determining the tiers, the Operating
‘‘not [be] organized for profit and no
Company’s related costs among Committee considered the funding
part of the net earnings of [the
Participants and Industry Members that principles set forth in Section 11.2 of
organization can] inure[] to the benefit
is consistent with the Exchange Act, the CAT NMS Plan, seeking to create
of any private shareholder or
taking into account the timeline for funding tiers that take into account the
individual.’’ 34 As the SEC stated when
implementation of the CAT and relative impact on CAT System
approving the CAT NMS Plan, ‘‘the
distinctions in the securities trading resources of different Industry Members,
Commission believes that the
operations of Participants and Industry and that establish comparable fees
Company’s application for Section
Members and their relative impact upon among the CAT Reporters with the most
501(c)(6) business league status
the Company’s resources and Reportable Events. The Operating
addresses issues raised by commenters
operations; Committee has determined that
about the Plan’s proposed allocation of
• To establish a tiered fee structure in establishing nine tiers results in the
profit and loss by mitigating concerns
which the fees charged to: (i) CAT fairest allocation of fees, best
that the Company’s earnings could be
Reporters that are Execution Venues, distinguishing between Industry
used to benefit individual
including ATSs, are based upon the Members with differing levels of
Participants.’’ 35
Finally, by adopting a CAT-specific level of market share; (ii) Industry message traffic. Thus, each such
fee, the Participants will be fully Members’ non-ATS activities are based Industry Member will be placed into
transparent regarding the costs of the upon message traffic; (iii) the CAT one of nine tiers of fixed fees, based on
CAT. Charging a general regulatory fee, Reporters with the most CAT-related ‘‘message traffic’’ for a defined period
which would be used to cover CAT activity (measured by market share and/ (as discussed below). A nine tier
costs as well as other regulatory costs, or message traffic, as applicable) are structure was selected to provide the
would be less transparent than the generally comparable (where, for these widest range of levels for tiering
selected approach of charging a fee comparability purposes, the tiered fee Industry Members such that Industry
designated to cover CAT costs only. structure takes into consideration Members submitting significantly less
A full description of the funding affiliations between or among CAT message traffic to the CAT would be
model is set forth below. This Reporters, whether Execution Venue adequately differentiated from Industry
description includes the framework for and/or Industry Members); Members submitting substantially more
• To provide for ease of billing and message traffic. The Operating
asabaliauskas on DSK3SPTVN1PROD with NOTICES
the funding model as set forth in the
CAT NMS Plan, as well as the details as other administrative functions; Committee considered historical
to how the funding model will be • To avoid any disincentives such as message traffic generated by Industry
applied in practice, including the placing an inappropriate burden on Members across all exchanges and as
competition and a reduction in market submitted to FINRA’s Order Audit Trail
32 Approval Order at 84796. quality; and System (‘‘OATS’’), and considered the
33 Id.at 84792. • To build financial stability to distribution of firms with similar levels
34 26 U.S.C. 501(c)(6). support the Company as a going of message traffic, grouping together
35 Approval Order at 84793. concern. firms with similar levels of message
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![23920 Federal Register / Vol. 82, No. 99 / Wednesday, May 24, 2017 / Notices
Monthly average
message traffic
per Industry
Industry Member tier Member
(orders, quotes
and cancels)
Tier 1 .............................................................................................................................................................................................. >10,000,000,000
Tier 2 .............................................................................................................................................................................................. >1,000,000,000
Tier 3 .............................................................................................................................................................................................. >100,000,000
Tier 4 .............................................................................................................................................................................................. >2,500,000
Tier 5 .............................................................................................................................................................................................. >200,000
Tier 6 .............................................................................................................................................................................................. >50,000
Tier 7 .............................................................................................................................................................................................. >5,000
Tier 8 .............................................................................................................................................................................................. >1,000
Tier 9 .............................................................................................................................................................................................. ≤1,000
Based on the above analysis, the following Industry Member Percentages
Operating Committee approved the and Recovery Allocations:
Percentage
Percentage Percentage
of Industry
Industry Member tier of Industry of total
Member
Members recovery
recovery
Tier 1 ............................................................................................................................................ 0.500 8.50 6.38
Tier 2 ............................................................................................................................................ 2.500 35.00 26.25
Tier 3 ............................................................................................................................................ 2.125 21.25 15.94
Tier 4 ............................................................................................................................................ 4.625 15.75 11.81
Tier 5 ............................................................................................................................................ 3.625 7.75 5.81
Tier 6 ............................................................................................................................................ 4.000 5.25 3.94
Tier 7 ............................................................................................................................................ 17.500 4.50 3.38
Tier 8 ............................................................................................................................................ 20.125 1.50 1.13
Tier 9 ............................................................................................................................................ 45.000 0.50 0.38
Total ...................................................................................................................................... 100 100 75
For the purposes of creating these reporting, orders would be comprised of by a member of an exchange or FINRA
tiers based on message traffic, the the total number of equity and equity over the prior three-month period.
Operating Committee determined to options orders received and originated After an Industry Member begins
define the term ‘‘message traffic’’ by a member of an exchange or FINRA reporting to the CAT, ‘‘message traffic’’
separately for the period before the over the previous three-month period, will be calculated based on the Industry
commencement of CAT reporting and including principal orders, cancel/ Member’s Reportable Events reported to
for the period after the start of CAT replace orders, market maker orders the CAT as will be defined in the
reporting. The different definition for originated by a member of an exchange, Technical Specifications.38
message traffic is necessary as there will The Operating Committee has
and reserve (iceberg) orders as well as determined to calculate fee tiers every
be no Reportable Events as defined in
order routes and executions originated three months, on a calendar quarter
the Plan, prior to the commencement of
by a member of FINRA, and excluding basis, based on message traffic from the
CAT reporting. Accordingly, prior to the
start of CAT reporting, ‘‘message traffic’’ order rejects and implied orders.37 In prior three months. Based on its
will be comprised of historical equity addition, prior to the start of CAT analysis of historical data, the Operating
and equity options orders, cancels and reporting, cancels would be comprised Committee believes that calculating tiers
quotes provided by each exchange and of the total number of equity and equity based on three months of data will
FINRA over the previous three option cancels received and originated provide the best balance between
months.36 Prior to the start of CAT by a member of an exchange or FINRA reflecting changes in activity by
over a three-month period, excluding Industry Members while still providing
36 The SEC approved exemptive relief permitting order modifications (e.g., order updates, predictability in the tiering for Industry
Options Market Maker quotes to be reported to the order splits, partial cancels). Members. Because fee tiers will be
Central Repository by the relevant Options calculated based on message traffic from
Exchange in lieu of requiring that such reporting be Furthermore, prior to the start of CAT
done by both the Options Exchange and the Options reporting, quotes would be comprised of the prior three months, the Operating
Market Maker, as required by Rule 613 of information readily available to the Committee will begin calculating
asabaliauskas on DSK3SPTVN1PROD with NOTICES
Regulation NMS. See Securities Exchange Act
exchanges and FINRA, such as the total message traffic based on an Industry
Release No. 77265 (Mar. 1, 2017 [sic], 81 FR 11856 Member’s Reportable Events reported to
(March 7, 2016)). This exemption applies to number of historical equity and equity
Options Market Maker quotes for CAT reporting options quotes received and originated the CAT once the Industry Member has
purposes only. Therefore, notwithstanding the
reporting exemption provided for Options Market 38 If an Industry Member (other than an Execution
37 Consequently, firms that do not have ‘‘message
Maker quotes, Options Market Maker quotes will be Venue ATS) has no orders, cancels or quotes prior
included in the calculation of total message traffic traffic’’ reported to an exchange or OATS before to the commencement of CAT Reporting, or no
for Options Market Makers for purposes of tiering they are reporting to the CAT would not be subject Reportable Events after CAT reporting commences,
under the CAT funding model both prior to CAT to a fee until they begin to report information to then the Industry Member would not have a CAT
reporting and once CAT reporting commences. CAT. fee obligation.
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![Federal Register / Vol. 82, No. 99 / Wednesday, May 24, 2017 / Notices 23921
been reporting to the CAT for three members to its trade reporting facility or Execution Venues and Industry
months. Prior to that, fee tiers will be facilities for reporting transactions Members.
calculated as discussed above with effected otherwise than on an exchange, Each Equity Execution Venue will be
regard to the period prior to CAT in NMS Stocks or OTC Equity Securities ranked by market share and tiered by
reporting. will pay a fixed fee depending on the predefined Execution Venue
market share of that Execution Venue in percentages, (the ‘‘Equity Execution
(C) Execution Venue Tiering Venue Percentages’’). In determining the
NMS Stocks and OTC Equity Securities,
Under Section 11.3(a) of the CAT with the Operating Committee fixed percentage of Equity Execution
NMS Plan, the Operating Committee is establishing at least two and not more Venues in each tier, the Operating
required to establish fixed fees payable than five tiers of fixed fees, based on an Committee looked at historical market
by Execution Venues. Section 1.1 of the Execution Venue’s NMS Stocks and share of share volume for execution
CAT NMS Plan defines an Execution OTC Equity Securities market share. For venues. Equities Execution Venue
Venue as ‘‘a Participant or an alternative these purposes, market share for market share of share volume were
trading system (‘‘ATS’’) (as defined in Execution Venues that execute sourced from market statistics made
Rule 300 of Regulation ATS) that transactions will be calculated by share publicly-available by Bats Global
operates pursuant to Rule 301 of volume, and market share for a national Markets, Inc. (‘‘Bats’’). ATS market
Regulation ATS (excluding any such securities association that has trades share of share volume was sourced from
ATS that does not execute orders).’’ 39 reported by its members to its trade market statistics made publicly-
The Participants determined that reporting facility or facilities for available by FINRA. FINRA trading [sic]
ATSs should be included within the reporting transactions effected reporting facility (‘‘TRF’’) market share
definition of Execution Venue. Given otherwise than on an exchange in NMS of share volume was sourced from
the similarity between the activity of Stocks or OTC Equity Securities will be market statistics made publicly
exchanges and ATSs, both of which available by Bats. As indicated by
calculated based on share volume of
meet the definition of an ‘‘exchange’’ as FINRA, ATSs accounted for 37.80% of
trades reported, provided, however, that
set forth in the Exchange Act and the the share volume across the TRFs
the share volume reported to such
fact that the similar trading models during the recent tiering period. A
national securities association by an
would have similar anticipated burdens 37.80/62.20 split was applied to the
Execution Venue shall not be included
on the CAT, the Participants determined ATS and non-ATS breakdown of FINRA
in the calculation of such national
that ATSs should be treated in the same market share, with FINRA tiered based
security association’s market share.
manner as the exchanges for the only on the non-ATS portion of its TRF
purposes of determining the level of fees In accordance with Section 11.3(a)(i) market share of share volume.
associated with the CAT.40 of the CAT NMS Plan, the Operating Based on this, the Operating
Given the differences between Committee approved a tiered fee Committee considered the distribution
Execution Venues that trade NMS structure for Equity Execution Venues of Execution Venues, and grouped
Stocks and/or OTC Equity Securities and Option Execution Venues. In together Execution Venues with similar
and Execution Venues that trade Listed determining the Equity Execution levels of market share of share volume.
Options, Section 11.3(a) addresses Venue Tiers, the Operating Committee In doing so, the Participants considered
Execution Venues that trade NMS considered the funding principles set that, as previously noted, Execution
Stocks and/or OTC Equity Securities forth in Section 11.2 of the CAT NMS Venues in many cases have similar
separately from Execution Venues that Plan, seeking to create funding tiers that levels of message traffic due to quoting
trade Listed Options. Equity and take into account the relative impact on activity, and determined that it was
Options Execution Venues are treated system resources of different Equity simpler and more appropriate to have
separately for two reasons. First, the Execution Venues, and that establish fewer, rather than more, Execution
differing quoting behavior of Equity and comparable fees among the CAT Venue tiers to distinguish between
Options Execution Venues makes Reporters with the most Reportable Execution Venues.
comparison of activity between Events. Each Equity Execution Venue The percentage of costs recovered by
Execution Venues difficult. Second, will be placed into one of two tiers of each Equity Execution Venue tier will
Execution Venue tiers are calculated fixed fees, based on the Execution be determined by predefined percentage
based on market share of share volume, Venue’s NMS Stocks and OTC Equity allocations (the ‘‘Equity Execution
and it is therefore difficult to compare Securities market share. In choosing two Venue Recovery Allocation’’). In
market share between asset classes (i.e., tiers, the Operating Committee determining the fixed percentage
equity shares versus options contracts). performed an analysis similar to that allocation of costs recovered for each
Discussed below is how the funding discussed above with regard to the non- tier, the Operating Committee
model treats the two types of Execution Execution Venue Industry Members to considered the impact of CAT Reporter
Venues. determine the number of tiers for Equity market share activity on the CAT
Execution Venues. The Operating System as well as the distribution of
(I) NMS Stocks and OTC Equity Committee determined to establish two total market volume across Equity
Securities tiers for Equity Execution Venues, rather Execution Venues while seeking to
Section 11.3(a)(i) of the CAT NMS than a larger number of tiers as maintain comparable fees among the
Plan states that each Execution Venue established for non-Execution Venue largest CAT Reporters. Accordingly,
that (i) executes transactions or, (ii) in Industry Members, because the two tiers following the determination of the
asabaliauskas on DSK3SPTVN1PROD with NOTICES
the case of a national securities were sufficient to distinguish between percentage of Execution Venues in each
association, has trades reported by its the smaller number of Equity Execution tier, the Operating Committee identified
Venues based on market share. the percentage of total market volume
39 Although FINRA does not operate an execution
Furthermore, the incorporation of for each tier based on the historical
venue, because it is a Participant, it is considered additional Equity Execution Venue tiers market share upon which Execution
an ‘‘Execution Venue’’ under the Plan for purposes
of determining fees. would result in significantly higher fees Venues had been initially ranked.
40 Section B.7, Appendix C of the CAT NMS Plan, for Tier 1 Equity Execution Venues and Taking this into account along with the
Approval Order at 85005. diminish comparability between resulting percentage of total recovery,
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![23922 Federal Register / Vol. 82, No. 99 / Wednesday, May 24, 2017 / Notices
the percentage allocation of costs Execution Venues, there is less variation allowing the funding model to respond
recovered for each tier were assigned, in CAT Fees between the highest and to changes in either the total number of
allocating higher percentages of lowest of tiers for Execution Venues. Equity Execution Venues or changes in
recovery to the tier with a higher level Furthermore, by using percentages of market share.
of market share while avoiding any Equity Execution Venues and costs Based on this analysis, the Operating
inappropriate burden on competition. recovered per tier, the Operating Committee approved the following
Furthermore, due to the similar levels of Committee sought to include stability Equity Execution Venue Percentages
impact on the CAT System across and elasticity within the funding model, and Recovery Allocations:
Percentage Percentage Percentage
of Equity of Execution
Equity Execution Venue tier of total
Execution Venue recovery
Venues Recovery
Tier 1 ............................................................................................................................................ 25.00 26.00 6.50
Tier 2 ............................................................................................................................................ 75.00 49.00 12.25
Total ...................................................................................................................................... 100 75 18.75
The following table exhibits the In accordance with Section 11.3(a)(ii) fixed percentage of Options Execution
relative separation of market share of of the CAT NMS Plan, the Operating Venues in each tier, the Operating
share volume between Tier 1 and Tier Committee approved a tiered fee Committee analyzed the historical and
2 Equity Execution Venues. In structure for Options Execution Venues. publicly available market share of
reviewing the table, note that while this In determining the tiers, the Operating Options Execution Venues to group
division was referenced as a data point Committee considered the funding Options Execution Venues with similar
to help differentiate between Equity principles set forth in Section 11.2 of market shares across the tiers. Options
Execution Venue tiers, the proposed the CAT NMS Plan, seeking to create Execution Venue market share of share
funding model is directly driven not by funding tiers that take into account the volume were sourced from market
market share thresholds, but rather by relative impact on system resources of statistics made publicly-available by
fixed percentages of Equity Execution different Options Execution Venues, Bats. The process for developing the
Venues across tiers to account for and that establish comparable fees Options Execution Venue Percentages
fluctuating levels of market share across among the CAT Reporters with the most was the same as discussed above with
time. Actual market share in any tier Reportable Events. Each Options regard to Equity Execution Venues.
will vary based on the actual market Execution Venue will be placed into one
activity in a given measurement period, of two tiers of fixed fees, based on the The percentage of costs recovered by
as well as the number of Equity Execution Venue’s Listed Options each Options Execution Venue tier will
Execution Venues included in the market share. In choosing two tiers, the be determined by predefined percentage
measurement period. The Equity Operating Committee performed an allocations (the ‘‘Options Execution
Execution Venue Percentages and analysis similar to that discussed above Venue Recovery Allocation’’). In
Equity Execution Venue Recovery with regard to Industry Members (other determining the fixed percentage
Allocation for each tier will remain than Execution Venue ATSs) to allocation of costs recovered for each
fixed with each Equity Execution Venue determine the number of tiers for tier, the Operating Committee
tier to be reassigned periodically, as Options Execution Venues. The considered the impact of CAT Reporter
described below in Section 3(a)(1)(I) Operating Committee determined to market share activity on the CAT
[sic]. establish two tiers for Options System as well as the distribution of
Execution Venues, rather than a larger total market volume across Options
Equity market number of tiers as established for Execution Venues while seeking to
Equity Execution Venue tier share of maintain comparable fees among the
share volume Industry Members (other than Execution
Venue ATSs), because the two tiers largest CAT Reporters. Furthermore, by
Tier 1 .................................... ≥1 were sufficient to distinguish between using percentages of Options Execution
Tier 2 .................................... <1 the smaller number of Options Venues and costs recovered per tier, the
Execution Venues based on market Operating Committee sought to include
(II) Listed Options share. Furthermore, due to the smaller stability and elasticity within the
Section 11.3(a)(ii) of the CAT NMS number of Options Execution Venues, funding model, allowing the funding
Plan states that each Execution Venue the incorporation of additional Options model to respond to changes in either
that executes transactions in Listed Execution Venue tiers would result in the total number of Options Execution
Options will pay a fixed fee depending significantly higher fees for Tier 1 Venues or changes in market share. The
on the Listed Options market share of Options Execution Venues and reduce process for developing the Options
that Execution Venue, with the comparability between Execution Execution Venue Recovery Allocation
Operating Committee establishing at Venues and Industry Members. was the same as discussed above with
asabaliauskas on DSK3SPTVN1PROD with NOTICES
least two and no more than five tiers of Each Options Execution Venue will regard to Equity Execution Venues.
fixed fees, based on an Execution be ranked by market share and tiered by Based on this analysis, the Operating
Venue’s Listed Options market share. predefined Execution Venue Committee approved the following
For these purposes, market share will be percentages, (the ‘‘Options Execution Options Execution Venue Percentages
calculated by contract volume. Venue Percentages’’). To determine the and Recovery Allocations:
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![Federal Register / Vol. 82, No. 99 / Wednesday, May 24, 2017 / Notices 23923
Percentage Percentage Percentage
of Options of Execution
Options Execution Venue tier of total
Execution Venue recovery
Venues Recovery
Tier 1 ............................................................................................................................................ 75.00 20.00 5.00
Tier 2 ............................................................................................................................................ 25.00 5.00 1.25
Total ...................................................................................................................................... 100 25 6.25
The following table exhibits the Venue’s proportion of the total volume percent would be allocated to Execution
relative separation of market share of of NMS Stock and OTC Equity shares Venues. The Operating Committee
share volume between Tier 1 and Tier reported by all Equity Execution Venues determined that this 75/25 division
2 Options Execution Venues. In during the relevant time period. maintained the greatest level of
reviewing the table, note that while this Similarly, market share for Options comparability across the funding model,
division was referenced as a data point Execution Venues will be determined by keeping in view that comparability
to help differentiate between Options calculating each Options Execution should consider affiliations among or
Execution Venue tiers, the proposed Venue’s proportion of the total volume between CAT Reporters (e.g., firms with
funding model is directly driven, not by of Listed Options contracts reported by multiple Industry Members and/or
market share thresholds, but rather by all Options Execution Venues during exchange licenses). For example, the
fixed percentages of Options Execution the relevant time period. cost allocation establishes fees for the
Venues across tiers to account for The Operating Committee has largest Industry Members (i.e., those
fluctuating levels of market share across determined to calculate fee tiers for Industry Members in Tiers 1, 2 and 3)
time. Actual market share in any tier Execution Venues every three months that are comparable to the largest Equity
will vary based on the actual market based on market share from the prior Execution Venues and Options
activity in a given measurement period, three months. Based on its analysis of Execution Venues (i.e., those Execution
as well as the number of Options historical data, the Operating Committee Venues in Tier 1). In addition, the cost
Execution Venues included in the believes calculating tiers based on three allocation establishes fees for Execution
measurement period. The Options months of data will provide the best Venue complexes that are comparable to
Execution Venue Percentages and balance between reflecting changes in those of Industry Member complexes.
Equity Execution Venue Recovery activity by Execution Venues while still For example, when analyzing
Allocation for each tier will remain providing predictability in the tiering alternative allocations, other possible
fixed with each Options Execution for Execution Venues. allocations led to much higher fees for
Venue tier to be reassigned periodically, larger Industry Members than for larger
as described below in Section 3(a)(1)(I) (D) Allocation of Costs Execution Venues or vice versa, and/or
[sic]. In addition to the funding principles led to much higher fees for Industry
discussed above, including Member complexes than Execution
Options comparability of fees, Section 11.1(c) of Venue complexes or vice versa.
market share the CAT NMS Plan also requires Furthermore, the allocation of total
Options Execution Venue tier of share
volume expenses to be fairly and reasonably CAT costs recovered recognizes the
(%) shared among the Participants and difference in the number of CAT
Industry Members. Accordingly, in Reporters that are Industry Members
Tier 1 .................................... ≥1 developing the proposed fee schedules versus CAT Reporters that are Execution
Tier 2 .................................... <1 pursuant to the funding model, the Venues. Specifically, the cost allocation
Operating Committee calculated how takes into consideration that there are
(III) Market Share/Tier Assignments the CAT costs would be allocated approximately 25 times more Industry
The Operating Committee determined between Industry Members and Members expected to report to the CAT
that, prior to the start of CAT reporting, Execution Venues, and how the portion than Execution Venues (e.g., an
market share for Execution Venues of CAT costs allocated to Execution estimated 1,630 Industry Members
would be sourced from publicly- Venues would be allocated between versus 70 Execution Venues as of
available market data. Options and Equity Execution Venues and Options January 2017).
equity volumes for Participants will be Execution Venues. These
(II) Allocation Between Equity
sourced from market data made publicly determinations are described below.
Execution Venues and Options
available by Bats while Execution
(I) Allocation Between Industry Execution Venues
Venue ATS volumes will be sourced
Members and Execution Venues The Operating Committee also
from market data made publicly
available by FINRA. Set forth in the In determining the cost allocation analyzed how the portion of CAT costs
Appendix are two charts, one listing the between Industry Members (other than allocated to Execution Venues would be
current Equity Execution Venues, each Execution Venue ATSs) and Execution allocated between Equity Execution
with its rank and tier, and one listing Venues, the Operating Committee Venues and Options Execution Venues.
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the current Options Execution Venues, analyzed a range of possible splits for In considering this allocation of costs,
each with its rank and tier. revenue recovered from such Industry the Operating Committee analyzed a
After the commencement of CAT Members and Execution Venues. Based range of alternative splits for revenue
reporting, market share for Execution on this analysis, the Operating recovered between Equity and Options
Venues will be sourced from data Committee determined that 75 percent Execution Venues, including a 70/30,
reported to the CAT. Equity Execution of total costs recovered would be 67/33, 65/35, 50/50 and 25/75 split.
Venue market share will be determined allocated to Industry Members (other Based on this analysis, the Operating
by calculating each Equity Execution than Execution Venue ATSs) and 25 Committee determined to allocate 75
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![Federal Register / Vol. 82, No. 99 / Wednesday, May 24, 2017 / Notices 23929
(G) Billing Onset Committee will review the distribution the criteria for each tier or the fee
Under Section 11.1(c) of the CAT of Industry Members and Execution amount corresponding to each tier.
NMS Plan, to fund the development and Venues across tiers, and make any In performing the tri-monthly
implementation of the CAT, the updates to the percentage of CAT reassignments, MRX notes that the
Company shall time the imposition and Reporters allocated to each tier as may percentage of CAT Reporters in each
collection of all fees on Participants and be necessary. In addition, the reviews assigned tier is relative. Therefore, a
Industry Members in a manner will evaluate the estimated ongoing CAT Reporter’s assigned tier will
reasonably related to the timing when CAT costs and the level of the operating depend, not only on its own message
the Company expects to incur such reserve. To the extent that the total CAT
traffic or market share, but it also will
development and implementation costs. costs decrease, the fees would be
depend on the message traffic/market
The Company is currently incurring adjusted downward, and, to the extent
share across all CAT Reporters. For
such development and implementation that the total CAT costs increase, the
example, the percentage of Industry
costs and will continue to do so prior fees would be adjusted upward.49
Members (other than Execution Venue
to the commencement of CAT reporting Furthermore, any surplus of the
ATSs) in each tier is relative such that
and thereafter. For example, the Plan Company’s revenues over its expenses is
such Industry Member’s assigned tier
Processor has required up-front to be included within the operational
will depend on message traffic
payments to begin building the CAT. In reserve to offset future fees. The
generated across all CAT Reporters as
addition, the Company continues to limitations on more frequent changes to
well as the total number of CAT
incur consultant and legal expenses on the fee, however, are intended to
Reporters. The Operating Committee
an on-going basis to implement the provide budgeting certainty for the CAT
will inform CAT Reporters of their
CAT. Accordingly, the Operating Reporters and the Company.50 To the
assigned tier every three months
Committee determined that all CAT extent that the Operating Committee
following the periodic tiering process,
Reporters, including both Industry approves changes to the number of tiers
as the funding model will compare an
Members and Execution Venues in the funding model or the fees
individual CAT Reporter’s activity to
(including Participants), would begin to assigned to each tier, then MRX will file
that of other CAT Reporters in the
be invoiced as promptly as possible such changes with the SEC pursuant to
marketplace.
following the establishment of a billing Section 19(b) of the Exchange Act, and
mechanism. MRX will issue a Circular any such changes will become effective The following demonstrates a tier
to its members when the billing in accordance with the requirements of reassignment. In accordance with the
mechanism is established, specifying Section 19(b). funding model, the top 75% of Options
the date when such invoicing of Execution Venues in market share are
(I) Initial and Periodic Tier categorized as Tier 1 while the bottom
Industry Members will commence. Reassignments 25% of Options Execution Venues in
(H) Changes to Fee Levels and Tiers The Operating Committee has market share are categorized as Tier 2.
Section 11.3(d) of the CAT NMS Plan determined to calculate fee tiers every In the sample scenario below, Options
states that ‘‘[t]he Operating Committee three months based on market share or Execution Venue L is initially
shall review such fee schedule on at message traffic, as applicable, from the categorized as a Tier 2 Options
least an annual basis and shall make any prior three months. For the initial tier Execution Venue in Period A due to its
changes to such fee schedule that it assignments, the Company will market share. When market share is
deems appropriate. The Operating calculate the relevant tier for each CAT recalculated for Period B, the market
Committee is authorized to review such Reporter using the three months of data share of Execution Venue L increases,
fee schedule on a more regular basis, but prior to the commencement date. As and it is therefore subsequently
shall not make any changes on more with the initial tier assignment, for the reranked and reassigned to Tier 1 in
than a semi-annual basis unless, tri-monthly reassignments, the Period B. Correspondingly, Options
pursuant to a Supermajority Vote, the Company will calculate the relevant tier Execution Venue K, initially a Tier 1
Operating Committee concludes that using the three months of data prior to Options Execution Venue in Period A,
such change is necessary for the the relevant tri-monthly date. MRX is reassigned to Tier 2 in Period B due
adequate funding of the Company.’’ notes that any movement of CAT to decreases in its market share of share
With such reviews, the Operating Reporters between tiers will not change volume.
Period A Period B
Market Market share
Options Execution Venue Tier Options Execution Venue Tier
share rank rank
Options Execution Venue A ............. 1 1 Options Execution Venue A ............ 1 1
Options Execution Venue B ............. 2 1 Options Execution Venue B ............ 2 1
Options Execution Venue C ............. 3 1 Options Execution Venue C ............ 3 1
Options Execution Venue D ............. 4 1 Options Execution Venue D ............ 4 1
Options Execution Venue E ............. 5 1 Options Execution Venue E ............ 5 1
Options Execution Venue F .............. 6 1 Options Execution Venue F ............. 6 1
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Options Execution Venue G ............. 7 1 Options Execution Venue I .............. 7 1
Options Execution Venue H ............. 8 1 Options Execution Venue H ............ 8 1
Options Execution Venue I ............... 9 1 Options Execution Venue G ............ 9 1
Options Execution Venue J .............. 10 1 Options Execution Venue J ............. 10 1
Options Execution Venue K ............. 11 1 Options Execution Venue L ............. 11 1
49 The CAT Fees are designed to recover the costs such as any changes in costs related to the 50 Section B.7, Appendix C of the CAT NMS Plan,
associated with the CAT. Accordingly, CAT Fees retirement of existing regulatory systems, such as Approval Order at 85006.
would not be affected by increases or decreases in OATS.
other non-CAT expenses incurred by the SROs,
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![23932 Federal Register / Vol. 82, No. 99 / Wednesday, May 24, 2017 / Notices
exchanges and FINRA are proposing within 60 days of the filing of the submissions. You should submit only
this proposed fee schedule to proposed rule change, the Commission information that you wish to make
implement the requirements of the CAT summarily may temporarily suspend available publicly. All submissions
NMS Plan. Therefore, this is not a such rule change if it appears to the should refer to File Number SR–MRX–
competitive fee filing and, therefore, it Commission that such action is (i) 2017–04, and should be submitted on or
does not raise competition issues necessary or appropriate in the public before June 14, 2017.
between and among the exchanges and interest; (ii) for the protection of For the Commission, by the Division of
FINRA. investors; or (iii) otherwise in Trading and Markets, pursuant to delegated
Moreover, as previously described, furtherance of the purposes of the Act. authority.58
MRX believes that the proposed rule If the Commission takes such action, the Eduardo A. Aleman,
change fairly and equitably allocates Commission shall institute proceedings Assistant Secretary.
costs among CAT Reporters. In to determine whether the proposed rule [FR Doc. 2017–10595 Filed 5–23–17; 8:45 am]
particular, the proposed fee schedule is should be approved or disapproved.
BILLING CODE 8011–01–P
structured to impose comparable fees on
similarly situated CAT Reporters, and IV. Solicitation of Comments
lessen the impact on smaller CAT Interested persons are invited to
SECURITIES AND EXCHANGE
Reporters. CAT Reporters with similar submit written data, views, and
COMMISSION
levels of CAT activity will pay similar arguments concerning the foregoing,
fees. For example, Industry Members including whether the proposed rule [Release No. 34–80718; File No. SR–ISE–
(other than Execution Venue ATSs) with change is consistent with the Act. 2017–44]
higher levels of message traffic will pay Comments may be submitted by any of
higher fees, and those with lower levels the following methods: Self-Regulatory Organizations; Nasdaq
of message traffic will pay lower fees. ISE, LLC; Notice of Filing and
Electronic Comments Immediate Effectiveness of Proposed
Similarly, Execution Venue ATSs and
other Execution Venues with larger • Use the Commission’s Internet Rule Change to Temporarily Suspend
market share will pay higher fees, and comment form (http://www.sec.gov/ the Implementation of QCC With Stock
those with lower levels of market share rules/sro.shtml); or Order Functionality Upon Migration to
will pay lower fees. Therefore, given • Send an email to rule-comments@ INET
that there is generally a relationship sec.gov. Please include File Number SR–
May 18, 2017.
between message traffic and market MRX–2017–04 on the subject line.
Pursuant to Section 19(b)(1) of the
share to the CAT Reporter’s size, smaller Paper Comments Securities Exchange Act of 1934
CAT Reporters generally pay less than • Send paper comments in triplicate (‘‘Act’’),1 and Rule 19b–4 thereunder,2
larger CAT Reporters. Accordingly, the to Secretary, Securities and Exchange notice is hereby given that on May 8,
Exchange does not believe that the CAT Commission, 100 F Street NE., 2017, Nasdaq ISE, LLC (‘‘ISE’’ or
Fees would have a disproportionate Washington, DC 20549–1090. ‘‘Exchange’’) filed with the Securities
effect on smaller or larger CAT and Exchange Commission (‘‘SEC’’ or
All submissions should refer to File
Reporters. In addition, ATSs and ‘‘Commission’’) the proposed rule
Number SR–MRX–2017–04. This file
exchanges will pay the same fees based change as described in Items I and II,
number should be included on the
on market share. Therefore, MRX does below, which Items have been prepared
subject line if email is used. To help the
not believe that the fees will impose any by the Exchange. The Commission is
Commission process and review your
burden on the competition between publishing this notice to solicit
comments more efficiently, please use
ATSs and exchanges. Accordingly, MRX comments on the proposed rule change
only one method. The Commission will
believes that the proposed fees will from interested persons.
post all comments on the Commission’s
minimize the potential for adverse
Internet Web site (http://www.sec.gov/ I. Self-Regulatory Organization’s
effects on competition between CAT
rules/sro.shtml). Copies of the Statement of the Terms of Substance of
Reporters in the market.
Furthermore, the tiered, fixed fee submission, all subsequent the Proposed Rule Change
funding model limits the disincentives amendments, all written statements
The Exchange proposes to delay the
to providing liquidity to the market. with respect to the proposed rule
implementation of QCC with Stock
Therefore, the proposed fees are change that are filed with the
Order functionality with the migration
structured to limit burdens on Commission, and all written
to Nasdaq INET.
competitive quoting and other liquidity communications relating to the The text of the proposed rule change
provision in the market. proposed rule change between the is available on the Exchange’s Web site
Commission and any person, other than at www.ise.com, at the principal office
C. Self-Regulatory Organization’s those that may be withheld from the of the Exchange, and at the
Statement on Comments on the public in accordance with the Commission’s Public Reference Room.
Proposed Rule Change Received From provisions of 5 U.S.C. 552, will be
Members, Participants, or Others available for Web site viewing and II. Self-Regulatory Organization’s
No written comments were either printing in the Commission’s Public Statement of the Purpose of, and
solicited or received. Reference Room, 100 F Street NE., Statutory Basis for, the Proposed Rule
Washington, DC 20549, on official Change
asabaliauskas on DSK3SPTVN1PROD with NOTICES
III. Date of Effectiveness of the business days between the hours of In its filing with the Commission, the
Proposed Rule Change and Timing for 10:00 a.m. and 3:00 p.m. Copies of the Exchange included statements
Commission Action filing also will be available for concerning the purpose of and basis for
The foregoing rule change has become inspection and copying at the principal the proposed rule change and discussed
effective pursuant to Section office of the Exchange. All comments
19(b)(3)(A)(ii) of the Act.57 At any time received will be posted without change; 58 17 CFR 200.30–3(a)(12).
the Commission does not edit personal 1 15 U.S.C. 78s(b)(1).
57 15 U.S.C. 78s(b)(3)(A)(ii). identifying information from 2 17 CFR 240.19b–4.
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Document Created: 2017-05-24 01:03:17
Document Modified: 2017-05-24 01:03:17
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
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| Section | Notices | |
| FR Citation | 82 FR 23915 |
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