82_FR_25552 82 FR 25448 - Self-Regulatory Organizations; Bats EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use on Bats EDGA Exchange, Inc.

82 FR 25448 - Self-Regulatory Organizations; Bats EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use on Bats EDGA Exchange, Inc.

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 82, Issue 104 (June 1, 2017)

Page Range25448-25467
FR Document2017-11360

Federal Register, Volume 82 Issue 104 (Thursday, June 1, 2017)
[Federal Register Volume 82, Number 104 (Thursday, June 1, 2017)]
[Notices]
[Pages 25448-25467]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-11360]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-80784; File No. SR-BatsEDGA-2017-13]


Self-Regulatory Organizations; Bats EDGA Exchange, Inc.; Notice 
of Filing and Immediate Effectiveness of a Proposed Rule Change Related 
to Fees for Use on Bats EDGA Exchange, Inc.

May 26, 2017.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on May 16, 2017, Bats EDGA Exchange, Inc. (the ``Exchange'' or 
``EDGA'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I, II 
and III below, which Items have been prepared by the Exchange.\3\ The 
Exchange has designated the proposed rule change as one establishing or 
changing a member due, fee, or other charge imposed by the Exchange 
under Section 19(b)(3)(A)(ii) of the Act \4\ and Rule 19b-4(f)(2) 
thereunder,\5\ which renders the proposed rule change effective upon 
filing with the Commission. The Commission is publishing this notice to 
solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ The Exchange originally filed the proposed rule change on 
May 5, 2017 under File No. SR-BatsEDGA-2017-11. The Exchange 
subsequently withdrew that filing on May 11, 2017 and filed this 
proposed rule change.
    \4\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \5\ 17 CFR 240.19b-4(f)(2).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change
    The Exchange filed a proposed rule change 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'').\6\
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    \6\ Unless otherwise specified, capitalized terms used in this 
fee filing are defined as set forth herein, the CAT Compliance Rule 
Series or in the CAT NMS Plan.
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    The text of the proposed rule change is available at the Exchange's 
Web site at www.bats.com, at the principal office of the Exchange, and 
at the Commission's Public Reference Room.

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

    In its filing with the Commission, the Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The Exchange has prepared summaries, set forth in 
Sections A, B, and C below, of the most significant parts of such 
statements.

[[Page 25449]]

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

1. Purpose
    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,\7\ NASDAQ 
PHLX LLC, The NASDAQ Stock Market LLC, New York Stock Exchange LLC, 
NYSE MKT LLC, NYSE Arca, Inc. and NYSE National, Inc.\8\ (collectively, 
the ``Participants'') filed with the Commission, pursuant to Section 
11A of the Exchange Act \9\ and Rule 608 of Regulation NMS 
thereunder,\10\ the CAT NMS Plan.\11\ 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,\12\ and approved by the Commission, as modified, on November 15, 
2016.\13\ 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.\14\ 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 implemented by the Participants (``CAT 
Fees'').\15\ 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.\16\ 
Accordingly, Bats submits this fee filing to propose the Consolidated 
Audit Trail Funding Fees, which will require Industry Members that are 
Bats members to pay the CAT Fees determined by the Operating Committee.
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    \7\ 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 Rel. No. 80248 (Mar. 15, 2017), 82 FR 14547 (Mar. 21, 2017); 
Securities Exchange Act Rel. No. 80326 (Mar. 29, 2017), 82 FR 16460 
(Apr. 4, 2017); and Securities Exchange Act Rel. No. 80325 (Mar. 29, 
2017), 82 FR 16445 (Apr. 4, 2017).
    \8\ National Stock Exchange, Inc. has been renamed NYSE 
National, Inc. See Securities Exchange Act Rel. No. 79902 (Jan. 30, 
2017), 82 FR 9258 (Feb. 3, 2017).
    \9\ 15 U.S.C. 78k-1.
    \10\ 17 CFR 242.608.
    \11\ 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.
    \12\ Securities Exchange Act Rel. No. 77724 (Apr. 27, 2016), 81 
FR 30614 (May 17, 2016).
    \13\ Securities Exchange Act Rel. No. 79318 (Nov. 15, 2016), 81 
FR 84696 (Nov. 23, 2016) (``Approval Order'').
    \14\ The Plan also serves as the limited liability company 
agreement for the Company.
    \15\ Section 11.1(b) of the CAT NMS Plan.
    \16\ Id.
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(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 Model
     CAT 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 \17\)
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    \17\ 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.
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     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

[[Page 25450]]

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. Bats will issue a Regulatory 
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'' \18\ and ``reflects a reasonable exercise of the 
Participants' funding authority to recover the Participants' costs 
related to the CAT.'' \19\
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    \18\ Approval Order at 84796.
    \19\ Id. at 84794.
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    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.'' \20\ The Commission further noted 
the following:
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    \20\ 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.\21\
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    \21\ 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.\22\ 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.\23\ 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.'' \24\
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    \22\ Section B.7, Appendix C of the CAT NMS Plan, Approval Order 
at 85006.
    \23\ 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.
    \24\ Approval Order at 84796.
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    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.\25\ 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.
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    \25\ Section B.7, Appendix C of the CAT NMS Plan, Approval Order 
at 85006.
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    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.\26\ 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.\27\ Correspondingly, Execution Venues with the highest market 
share will be in the top tier, and therefore will be charged a higher 
fee. Execution

[[Page 25451]]

Venues with a lower market share will be in the lower tier and will be 
assessed a smaller fee for the CAT.\28\
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    \26\ Approval Order at 85005.
    \27\ Id.
    \28\ Id.
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    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)'' \29\ 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.\30\ 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.\31\
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    \29\ Id. at 84796.
    \30\ Section B.7, Appendix C of the CAT NMS Plan, Approval Order 
at 85005.
    \31\ Section 11.3(b) of the CAT NMS Plan.
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    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.\32\ 
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.\33\
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    \32\ Section 11.2(c) of the CAT NMS Plan.
    \33\ Section B.7, Appendix C of the CAT NMS Plan, Approval Order 
at 85005.
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    The CAT NMS Plan's funding model also is structured to avoid a 
``reduction in market quality.'' \34\ 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 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.'' \35\
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    \34\ Section 11.2(e) of the CAT NMS Plan.
    \35\ Approval Order at 84796.
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    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.\36\ 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.'' \37\ 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.'' \38\
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    \36\ Id. at 84792.
    \37\ 26 U.S.C. 501(c)(6).
    \38\ Approval Order at 84793.
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    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. Bats 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);

[[Page 25452]]

     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 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].

[[Page 25453]]

[GRAPHIC] [TIFF OMITTED] TN01JN17.016


------------------------------------------------------------------------
                                                 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
                                                                      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 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

[[Page 25454]]

months.\39\ 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.\40\ 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.
---------------------------------------------------------------------------

    \39\ 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 (Mar. 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.
    \40\ 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.\41\
---------------------------------------------------------------------------

    \41\ 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 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).'' 
\42\
---------------------------------------------------------------------------

    \42\ 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.\43\
---------------------------------------------------------------------------

    \43\ 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

[[Page 25455]]

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, 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   Percentage of
                                                                      Equity         Execution     Percentage of
                   Equity Execution Venue tier                       Execution         Venue      total 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 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
                                                             share of
               Equity Execution Venue tier                 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

[[Page 25456]]

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:

----------------------------------------------------------------------------------------------------------------
                                                                   Percentage of   Percentage of
                                                                      Options        Execution     Percentage of
                  Options Execution Venue tier                       Execution         Venue      total 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 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
                                                              share of
              Options Execution Venue tier                 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

[[Page 25457]]

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 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.\44\
---------------------------------------------------------------------------

    \44\ 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.

------------------------------------------------------------------------
         Cost category                Cost component          Amount
------------------------------------------------------------------------
Plan Processor.................  Operational Costs......     $37,500,000
Non-Plan Processor.............  Third Party Support           5,200,000
                                  Costs.
                                 Operational Reserve....  \45\ 5,000,000
                                 Insurance Costs........       3,000,000
                                                         ---------------

[[Page 25458]]

 
    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: \46\
---------------------------------------------------------------------------

    \45\ This $5,000,000 represents the gradual accumulation of the 
funds for a target operating reserve of $11,425,000.
    \46\ Note that all monthly, quarterly and annual CAT Fees have 
been rounded to the nearest dollar.
---------------------------------------------------------------------------

    For Industry Members (other than Execution Venue ATSs):
---------------------------------------------------------------------------

    \47\ 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).

----------------------------------------------------------------------------------------------------------------
                                                                    Monthly CAT    Quarterly CAT   CAT fees paid
                              Tier                                      fee             fee        annually \47\
----------------------------------------------------------------------------------------------------------------
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:
---------------------------------------------------------------------------

    \48\ 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 \48\
----------------------------------------------------------------------------------------------------------------
1...............................................................         $21,125         $63,375        $253,500
2...............................................................          12,940          38,820         155,280
----------------------------------------------------------------------------------------------------------------

    For Execution Venues for Listed Options:
---------------------------------------------------------------------------

    \49\ 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).

----------------------------------------------------------------------------------------------------------------
                                                                    Monthly CAT    Quarterly CAT   CAT fees paid
                              Tier                                      fee             fee        annually \49\
----------------------------------------------------------------------------------------------------------------
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.
    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

[[Page 25459]]

 
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 of
                  Industry Member tier                       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
------------------------------------------------------------------------

BILLING CODE 8011-01-P

[[Page 25460]]

[GRAPHIC] [TIFF OMITTED] TN01JN17.017

BILLING CODE 8011-01-C

[[Page 25461]]



                      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
----------------------------------------------------------------------------------------------------------------


------------------------------------------------------------------------
                                                             Estimated
                                                             number of
               Equity Execution Venue tier                    Equity
                                                             Execution
                                                              Venues
------------------------------------------------------------------------
Tier 1..................................................              13
Tier 2..................................................              40
                                                         ---------------
    Total...............................................              53
------------------------------------------------------------------------

                                                          [GRAPHIC] [TIFF OMITTED] TN01JN17.018
                                                          

                      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
------------------------------------------------------------------------


[[Page 25462]]

[GRAPHIC] [TIFF OMITTED] TN01JN17.019


                                         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
                                      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 \50\.................  ..........................  ..............  ..............           9,036
----------------------------------------------------------------------------------------------------------------

(F) Comparability of Fees
---------------------------------------------------------------------------

    \50\ 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: \51\
---------------------------------------------------------------------------

    \51\ 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.

[[Page 25463]]



                                            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)......
----------------------------------------------------------------------------------------------------------------

(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. Bats will 
issue a Regulatory 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.\52\ 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.\53\ 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 Bats 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).
---------------------------------------------------------------------------

    \52\ 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.
    \53\ 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. Bats 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, Bats 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

[[Page 25464]]

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
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
    Bats proposes the Consolidated Audit Trail Funding Fees to 
implement the CAT Fees determined by the Operating Committee on SRO'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 
4.5 (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
    Bats 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:

[[Page 25465]]



------------------------------------------------------------------------
                                           Percentage of
                  Tier                       Industry      Quarterly CAT
                                              Members           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.\54\ 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:
---------------------------------------------------------------------------

    \54\ 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 CAT
                  Tier                       Execution          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. Bats will provide Industry Members with details regarding the 
manner of payment of CAT Fees by Regulatory Circular.
    Although the exact fee collection system and processes for CAT fees 
has 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.\55\
---------------------------------------------------------------------------

    \55\ 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, 
Bats proposes 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
    Bats believes that the proposed rule change is consistent with the 
provisions of Section 6(b)(5) of the Act,\56\ which require, among 
other things, that the SRO rules must be designed to prevent fraudulent 
and manipulative acts and practices, to promote just and equitable 
principles of trade, and, in general, to

[[Page 25466]]

protect investors and the public interest, and not designed to permit 
unfair discrimination between customers, issuers, brokers and dealers, 
and Section 6(b)(4) of the Act,\57\ which requires that SRO rules 
provide for the equitable allocation of reasonable dues, fees, and 
other charges among members and issuers and other persons using its 
facilities. 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. Bats 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.
---------------------------------------------------------------------------

    \56\ 15 U.S.C. 78f(b)(5).
    \57\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

    Bats 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 Bats 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.'' \58\ To the extent that this proposal 
implements, interprets or clarifies the Plan and applies specific 
requirements to Industry Members, Bats believes that this proposal 
furthers the objectives of the Plan, as identified by the SEC, and is 
therefore consistent with the Act.
---------------------------------------------------------------------------

    \58\ Approval Order at 84697.
---------------------------------------------------------------------------

    Bats 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, Bats 
believes that the total level of the CAT Fees is reasonable.
    In addition, Bats 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, Bats 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, Bats 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 \59\ require that SRO rules not impose 
any burden on competition that is not necessary or appropriate. Bats 
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. Bats notes that the proposed 
rule change implements provisions of the CAT NMS Plan approved by the 
Commission, and is designed to assist Bats in meeting its regulatory 
obligations pursuant to the Plan. Similarly, all national securities 
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.
---------------------------------------------------------------------------

    \59\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    Moreover, as previously described, Bats 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, Bats 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, Bats does not 
believe that the fees will impose any burden on the competition between 
ATSs and exchanges. Accordingly, Bats 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

    Written comments were neither solicited nor 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)

[[Page 25467]]

of the Act \60\ and paragraph (f) of Rule 19b-4 thereunder.\61\ At any 
time within 60 days of the filing of the proposed rule change, the 
Commission summarily may temporarily suspend such rule change if it 
appears to the Commission that such action is necessary or appropriate 
in the public interest, for the protection of investors, or otherwise 
in furtherance of the purposes of the Act.
---------------------------------------------------------------------------

    \60\ 15 U.S.C. 78s(b)(3)(A).
    \61\ 17 CFR 240.19b-4(f).
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the proposal 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-BatsEDGA-2017-13 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-BatsEDGA-2017-13. 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 such filing will also be available 
for inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-BatsEDGA-2017-13 and should 
be submitted on or before June 22, 2017.
---------------------------------------------------------------------------

    \62\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\62\
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-11360 Filed 5-31-17; 8:45 am]
BILLING CODE 8011-01-P



                                                  25448                          Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices

                                                  exempt any person, security, or                         Commission action on the proposed rule                ‘‘Act’’),1 and Rule 19b–4 thereunder,2
                                                  transaction, or any class or classes of                 change.4 On February 1, 2017, the                     notice is hereby given that on May 16,
                                                  persons, securities, or transactions, from              Division of Trading and Markets, for the              2017, Bats EDGA Exchange, Inc. (the
                                                  any provision of section 12(d)(1) if the                Commission pursuant to delegated                      ‘‘Exchange’’ or ‘‘EDGA’’) filed with the
                                                  exemption is consistent with the public                 authority, instituted proceedings to                  Securities and Exchange Commission
                                                  interest and the protection of investors.               determine whether to approve or                       (‘‘Commission’’) the proposed rule
                                                  Section 17(b) of the Act authorizes the                 disapprove the proposed rule change.5                 change as described in Items I, II and III
                                                  Commission to grant an order                            On April 20, 2017, NYSE Arca                          below, which Items have been prepared
                                                  permitting a transaction otherwise                      submitted Amendment No. 3 to the                      by the Exchange.3 The Exchange has
                                                  prohibited by section 17(a) if it finds                 proposed rule change, which replaced
                                                                                                                                                                designated the proposed rule change as
                                                  that (a) the terms of the proposed                      and superseded the proposed rule
                                                                                                                                                                one establishing or changing a member
                                                  transaction are fair and reasonable and                 change as modified by previous
                                                  do not involve overreaching on the part                 amendments.6 No comments on the                       due, fee, or other charge imposed by the
                                                  of any person concerned; (b) the                        proposed rule change were received. On                Exchange under Section 19(b)(3)(A)(ii)
                                                  proposed transaction is consistent with                 May 2, 2017, the Division of Trading                  of the Act 4 and Rule 19b–4(f)(2)
                                                  the policies of each registered                         and Markets, for the Commission                       thereunder,5 which renders the
                                                  investment company involved; and (c)                    pursuant to delegated authority,7                     proposed rule change effective upon
                                                  the proposed transaction is consistent                  approved the proposed rule change, as                 filing with the Commission. The
                                                  with the general purposes of the Act.                   modified by Amendment No. 3.8                         Commission is publishing this notice to
                                                    For the Commission, by the Division of                   Pursuant to Commission Rule of                     solicit comments on the proposed rule
                                                  Investment Management, under delegated                  Practice 431,9 the Commission is                      change from interested persons.
                                                  authority.                                              reviewing the delegated action, and the
                                                                                                          May 2, 2017 order is stayed.                          I. Self-Regulatory Organization’s
                                                  Eduardo A. Aleman,
                                                                                                             Accordingly, it is ordered, pursuant to            Statement of the Terms of Substance of
                                                  Assistant Secretary.                                                                                          the Proposed Rule Change
                                                                                                          Commission Rule of Practice 431, that
                                                  [FR Doc. 2017–11243 Filed 5–31–17; 8:45 am]
                                                                                                          by June 15, 2017, any party or other
                                                  BILLING CODE 8011–01–P                                                                                           The Exchange filed a proposed rule
                                                                                                          person may file any additional
                                                                                                          statement.                                            change to establish the fees for Industry
                                                                                                             It is further ordered that the May 2,              Members related to the National Market
                                                  SECURITIES AND EXCHANGE                                                                                       System Plan Governing the
                                                                                                          2017 order approving the proposed rule
                                                  COMMISSION                                                                                                    Consolidated Audit Trail (the ‘‘CAT
                                                                                                          change, as modified by Amendment No.
                                                  [Release No. 80770]                                     3 (SR–NYSEArca–2016–120) shall                        NMS Plan’’ or ‘‘Plan’’).6
                                                                                                          remain stayed pending further order of                   The text of the proposed rule change
                                                  In the Matter of the NYSE Arca, Inc.; for               the Commission.                                       is available at the Exchange’s Web site
                                                  an Order Granting the Approval of
                                                                                                            By the Commission.                                  at www.bats.com, at the principal office
                                                  Proposed Rule Change To List and
                                                                                                          Brent J. Fields,                                      of the Exchange, and at the
                                                  Trade Shares of the ForceShares Daily
                                                  4X US Market Futures Long Fund and                      Secretary.                                            Commission’s Public Reference Room.
                                                  ForceShares Daily 4X US Market                          [FR Doc. 2017–11245 Filed 5–31–17; 8:45 am]
                                                                                                                                                                II. Self-Regulatory Organization’s
                                                  Futures Short Fund Under                                BILLING CODE 8011–01–P
                                                                                                                                                                Statement of the Purpose of, and
                                                  Commentary .02 to NYSE Arca Equities                                                                          Statutory Basis for, the Proposed Rule
                                                  Rule 8.200; Order Scheduling Filing of                                                                        Change
                                                  Statements on Review                                    SECURITIES AND EXCHANGE
                                                                                                          COMMISSION                                              In its filing with the Commission, the
                                                  May 25, 2017.
                                                                                                          [Release No. 34–80784; File No. SR–                   Exchange included statements
                                                     On October 17, 2016, NYSE Arca, Inc.                 BatsEDGA–2017–13]                                     concerning the purpose of and basis for
                                                  (‘‘NYSE Arca’’ or ‘‘Exchange’’) filed
                                                                                                                                                                the proposed rule change and discussed
                                                  with the Securities and Exchange                        Self-Regulatory Organizations; Bats
                                                  Commission (‘‘Commission’’), pursuant                                                                         any comments it received on the
                                                                                                          EDGA Exchange, Inc.; Notice of Filing
                                                  to Section 19(b)(1) of the Securities                                                                         proposed rule change. The text of these
                                                                                                          and Immediate Effectiveness of a
                                                  Exchange Act of 1934 1 and Rule 19b–                                                                          statements may be examined at the
                                                                                                          Proposed Rule Change Related to Fees
                                                  4 thereunder,2 a proposed rule change                   for Use on Bats EDGA Exchange, Inc.                   places specified in Item IV below. The
                                                  to list and trade shares of the                                                                               Exchange has prepared summaries, set
                                                  ForceShares Daily 4X US Market                          May 26, 2017.                                         forth in Sections A, B, and C below, of
                                                  Futures Long Fund and ForceShares                         Pursuant to Section 19(b)(1) of the                 the most significant parts of such
                                                  Daily 4X US Market Futures Short Fund                   Securities Exchange Act of 1934 (the                  statements.
                                                  under Commentary .02 to NYSE Arca
                                                                                                            4 See Securities Exchange Act Release No. 79550
                                                  Equities Rule 8.200. On November 4,                     (Dec. 14, 2016), 81 FR 92892 (Dec. 20, 2016).           1 15 U.S.C. 78s(b)(1).
                                                  2016, the proposal was published for                      5 See Securities Exchange Act Release No. 79914       2 17 CFR 240.19b–4.
                                                  comment in the Federal Register.3 On                    (Feb. 1, 2017), 82 FR 9625 (Feb. 7, 2017).              3 The Exchange originally filed the proposed rule

                                                  December 14, 2016, the Division of                        6 Amendment No. 3 replaced and superseded the
                                                                                                                                                                change on May 5, 2017 under File No. SR–
                                                  Trading and Markets, for the                            proposed rule change as modified by Amendment         BatsEDGA–2017–11. The Exchange subsequently
mstockstill on DSK30JT082PROD with NOTICES




                                                                                                          No. 2. Amendment No. 2 had previously replaced
                                                  Commission pursuant to delegated                        and superseded the proposed rule change as
                                                                                                                                                                withdrew that filing on May 11, 2017 and filed this
                                                  authority, extended the time period for                                                                       proposed rule change.
                                                                                                          modified by Amendment No. 1. Amendment No. 1            4 15 U.S.C. 78s(b)(3)(A)(ii).
                                                                                                          replaced and superseded the original filing in its
                                                                                                                                                                  5 17 CFR 240.19b–4(f)(2).
                                                    1 15 U.S.C. 78s(b)(1).                                entirety.
                                                    2 17                                                    7 17 CFR 200.30–3(a)(12).                             6 Unless otherwise specified, capitalized terms
                                                         CFR 240.19b–4.
                                                    3 See Securities Exchange Act Release No. 79201         8 See Securities Exchange Act Release No. 80579     used in this fee filing are defined as set forth herein,
                                                  (Oct. 31, 2016), 81 FR 76977 (Nov. 4, 2016) (SR–        (May 2, 2017), 82 FR 21443 (May 8, 2017).             the CAT Compliance Rule Series or in the CAT
                                                  NYSEArca–2016–120).                                       9 17 CFR 201.431.                                   NMS Plan.



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                                                                                  Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices                                          25449

                                                  (A) Self-Regulatory Organization’s                       CAT NMS, LLC (the ‘‘Company’’), of                   that execute transactions in Eligible
                                                  Statement of the Purpose of, and                         which each Participant is a member, to               Securities (‘‘Execution Venue ATSs’’))
                                                  Statutory Basis for, the Proposed Rule                   operate the CAT.14 Under the CAT NMS                 through fixed tier fees based on message
                                                  Change                                                   Plan, the Operating Committee of the                 traffic for Eligible Securities. (See
                                                                                                           Company (‘‘Operating Committee’’) has                Section 3(a)(2) [sic] below)
                                                  1. Purpose
                                                                                                           discretion to establish funding for the                 • Industry Member Fees. Each
                                                     Bats BYX Exchange, Inc., Bats BZX                     Company to operate the CAT, including                Industry Member (other than Execution
                                                  Exchange, Inc., Bats EDGA Exchange,                      establishing fees that the Participants              Venue ATSs) will be placed into one of
                                                  Inc., Bats EDGX Exchange, Inc., BOX                      will pay, and establishing fees for                  nine tiers of fixed fees, based on
                                                  Options Exchange LLC, C2 Options                         Industry Members that will be                        ‘‘message traffic’’ in Eligible Securities
                                                  Exchange, Incorporated, Chicago Board                    implemented by the Participants (‘‘CAT               for a defined period (as discussed
                                                  Options Exchange, Incorporated,                          Fees’’).15 The Participants are required             below). Prior to the start of CAT
                                                  Chicago Stock Exchange, Inc., Financial                  to file with the SEC under Section 19(b)             reporting, ‘‘message traffic’’ will be
                                                  Industry Regulatory Authority, Inc.                      of the Exchange Act any such CAT Fees                comprised of historical equity and
                                                  (‘‘FINRA’’), Investors’ Exchange LLC,                    applicable to Industry Members that the              equity options orders, cancels and
                                                  Miami International Securities                           Operating Committee approves.16                      quotes provided by each exchange and
                                                  Exchange, LLC, MIAX PEARL, LLC,                          Accordingly, Bats submits this fee filing            FINRA over the previous three months.
                                                  NASDAQ BX, Inc., Nasdaq GEMX, LLC,                       to propose the Consolidated Audit Trail              After an Industry Member begins
                                                  Nasdaq ISE, LLC, Nasdaq MRX, LLC,7                       Funding Fees, which will require                     reporting to the CAT, ‘‘message traffic’’
                                                  NASDAQ PHLX LLC, The NASDAQ                              Industry Members that are Bats                       will be calculated based on the Industry
                                                  Stock Market LLC, New York Stock                         members to pay the CAT Fees                          Member’s Reportable Events reported to
                                                  Exchange LLC, NYSE MKT LLC, NYSE                         determined by the Operating                          the CAT. Industry Members with lower
                                                  Arca, Inc. and NYSE National, Inc.8                      Committee.                                           levels of message traffic will pay a lower
                                                  (collectively, the ‘‘Participants’’) filed
                                                                                                           (1) Executive Summary                                fee and Industry Members with higher
                                                  with the Commission, pursuant to
                                                                                                                                                                levels of message traffic will pay a
                                                  Section 11A of the Exchange Act 9 and                      The following provides an executive                higher fee. (See Section 3(a)(2)(B) [sic]
                                                  Rule 608 of Regulation NMS                               summary of the CAT funding model                     below)
                                                  thereunder,10 the CAT NMS Plan.11 The                    approved by the Operating Committee,
                                                  Participants filed the Plan to comply                                                                            • Execution Venue Fees. Each Equity
                                                                                                           as well as Industry Members’ rights and
                                                  with Rule 613 of Regulation NMS under                                                                         Execution Venue will be placed in one
                                                                                                           obligations related to the payment of
                                                  the Exchange Act. The Plan was                                                                                of two tiers of fixed fees based on
                                                                                                           CAT Fees calculated pursuant to the
                                                  published for comment in the Federal                                                                          market share, and each Options
                                                                                                           CAT funding model. A detailed
                                                  Register on May 17, 2016,12 and                                                                               Execution Venue will be placed in one
                                                                                                           description of the CAT funding model
                                                  approved by the Commission, as                                                                                of two tiers of fixed fees based on
                                                                                                           and the CAT Fees follows this executive
                                                  modified, on November 15, 2016.13 The                                                                         market share. Equity Execution Venue
                                                                                                           summary.
                                                  Plan is designed to create, implement                                                                         market share will be determined by
                                                  and maintain a consolidated audit trail                  (A) CAT Funding Model                                calculating each Equity Execution
                                                  (‘‘CAT’’) that would capture customer                       • CAT Costs. The CAT funding model                Venue’s proportion of the total volume
                                                  and order event information for orders                   is designed to establish CAT-specific                of NMS Stock and OTC Equity shares
                                                  in NMS Securities and OTC Equity                         fees to collectively recover the costs of            reported by all Equity Execution Venues
                                                  Securities, across all markets, from the                 building and operating the CAT from all              during the relevant time period.
                                                  time of order inception through routing,                 CAT Reporters, including Industry                    Similarly, market share for Options
                                                  cancellation, modification, or execution                 Members and Participants. The overall                Execution Venues will be determined by
                                                  in a single consolidated data source.                    CAT costs for the calculation of the CAT             calculating each Options Execution
                                                  The Plan accomplishes this by creating                   Fees in this fee filing are comprised of             Venue’s proportion of the total volume
                                                                                                           Plan Processor CAT costs and non-Plan                of Listed Options contracts reported by
                                                     7 ISE Gemini, LLC, ISE Mercury, LLC and
                                                                                                           Processor CAT costs incurred, and                    all Options Execution Venues during
                                                  International Securities Exchange, LLC have been         estimated to be incurred, from                       the relevant time period. Equity
                                                  renamed Nasdaq GEMX, LLC, Nasdaq MRX, LLC,                                                                    Execution Venues with a larger market
                                                  and Nasdaq ISE, LLC, respectively. See Securities        November 21, 2016 through November
                                                  Exchange Act Rel. No. 80248 (Mar. 15, 2017), 82 FR       21, 2017. (See Section 3(a)(2)(E) [sic]              share will pay a larger CAT Fee than
                                                  14547 (Mar. 21, 2017); Securities Exchange Act Rel.      below 17)                                            Equity Execution Venues with a smaller
                                                  No. 80326 (Mar. 29, 2017), 82 FR 16460 (Apr. 4,
                                                  2017); and Securities Exchange Act Rel. No. 80325
                                                                                                              • Bifurcated Funding Model. The                   market share. Similarly, Options
                                                  (Mar. 29, 2017), 82 FR 16445 (Apr. 4, 2017).             CAT NMS Plan requires a bifurcated                   Execution Venues with a larger market
                                                     8 National Stock Exchange, Inc. has been renamed      funding model, where costs associated                share will pay a larger CAT Fee than
                                                  NYSE National, Inc. See Securities Exchange Act          with building and operating the CAT                  Options Execution Venues with a
                                                  Rel. No. 79902 (Jan. 30, 2017), 82 FR 9258 (Feb. 3,      would be borne by (1) Participants and               smaller market share. (See Section
                                                  2017).                                                                                                        3(a)(2)(C) [sic] below)
                                                     9 15 U.S.C. 78k–1.                                    Industry Members that are Execution
                                                     10 17 CFR 242.608.                                    Venues for Eligible Securities through                  • Cost Allocation. For the reasons
                                                     11 See Letter from the Participants to Brent J.       fixed tier fees based on market share,               discussed below, in designing the
                                                  Fields, Secretary, Commission, dated September 30,       and (2) Industry Members (other than                 model, the Operating Committee
                                                  2014; and Letter from Participants to Brent J. Fields,   alternative trading systems (‘‘ATSs’’)               determined that 75 percent of total costs
                                                  Secretary, Commission, dated February 27, 2015.                                                               recovered would be allocated to
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                                                  On December 24, 2015, the Participants submitted
                                                  an amendment to the CAT NMS Plan. See Letter
                                                                                                             14 The Plan also serves as the limited liability   Industry Members (other than Execution
                                                  from Participants to Brent J. Fields, Secretary,         company agreement for the Company.                   Venue ATSs) and 25 percent would be
                                                                                                             15 Section 11.1(b) of the CAT NMS Plan.
                                                  Commission, dated December 23, 2015.                                                                          allocated to Execution Venues. In
                                                     12 Securities Exchange Act Rel. No. 77724 (Apr.         16 Id.
                                                                                                                                                                addition, the Operating Committee
                                                  27, 2016), 81 FR 30614 (May 17, 2016).                     17 The Commission notes that references to
                                                     13 Securities Exchange Act Rel. No. 79318 (Nov.       Sections 3(a)(2) and 3(a)(3) in this Executive
                                                                                                                                                                determined to allocate 75 percent of
                                                  15, 2016), 81 FR 84696 (Nov. 23, 2016) (‘‘Approval       Summary should be instead to Sections II.A.1.(2)     Execution Venue costs recovered to
                                                  Order’’).                                                and II.A.1.(3), respectively.                        Equity Execution Venues and 25 percent


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                                                  25450                          Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices

                                                  to Options Execution Venues. (See                       (other than Execution Venue ATSs)                       strictly variable or metered funding
                                                  Section 3(a)(2)(D) [sic] below)                         through fixed tier fees based on message                model based on message volume would
                                                    • Comparability of Fees. The CAT                      traffic. In its order approving the CAT                 be far more likely to affect market
                                                  funding model requires that the CAT                     NMS Plan, the Commission determined                     behavior and place an inappropriate
                                                  Fees charged to the CAT Reporters with                  that the proposed funding model was                     burden on competition. Moreover, as
                                                  the most CAT-related activity (measured                 ‘‘reasonable’’ 18 and ‘‘reflects a                      the SEC noted in approving the CAT
                                                  by market share and/or message traffic,                 reasonable exercise of the Participants’                NMS Plan, ‘‘[t]he Participants also have
                                                  as applicable) are generally comparable                 funding authority to recover the                        offered a reasonable basis for
                                                  (where, for these comparability                         Participants’ costs related to the                      establishing a funding model based on
                                                  purposes, the tiered fee structure takes                CAT.’’ 19                                               broad tiers, in that it be may be easier
                                                  into consideration affiliations between                    More specifically, the Commission                    to implement.’’ 24
                                                  or among CAT Reporters, whether                         stated in approving the CAT NMS Plan                       In addition, multiple reviews of
                                                  Execution Venues and/or Industry                        that ‘‘[t]he Commission believes that the               current broker-dealer order and trading
                                                  Members). (See Section 3(a)(2)(F) [sic]                 proposed funding model is reasonably                    data submitted under existing reporting
                                                  below)                                                  designed to allocate the costs of the CAT               requirements showed a wide range in
                                                                                                          between the Participants and Industry                   activity among broker-dealers, with a
                                                  (B) CAT Fees for Industry Members
                                                                                                          Members.’’ 20 The Commission further                    number of broker-dealers submitting
                                                    • Fee Schedule. The quarterly CAT                     noted the following:                                    fewer than 1,000 orders per month and
                                                  Fees for each tier for Industry Members                                                                         other broker-dealers submitting millions
                                                                                                             The Commission believes that the
                                                  are set forth in the two fee schedules in               proposed funding model reflects a reasonable            and even billions of orders in the same
                                                  the Consolidated Audit Trail Funding                    exercise of the Participants’ funding                   period. Accordingly, the CAT NMS Plan
                                                  Fees, one for Equity ATSs and one for                   authority to recover the Participants’ costs            includes a tiered approach to fees. The
                                                  Industry Members other than Equity                      related to the CAT. The CAT is a regulatory             tiered approach helps ensure that fees
                                                  ATSs. (See Section 3(a)(3)(B) [sic]                     facility jointly owned by the Participants and          are equitably allocated among similarly
                                                  below)                                                  . . . the Exchange Act specifically permits             situated CAT Reporters and furthers the
                                                    • Quarterly Invoices. Industry                        the Participants to charge their members fees           goal of lessening the impact on smaller
                                                  Members will be billed quarterly for                    to fund their self-regulatory obligations. The
                                                                                                                                                                  firms.25 The self-regulatory
                                                                                                          Commission further believes that the
                                                  CAT Fees, with the invoices payable                                                                             organizations considered several
                                                                                                          proposed funding model is designed to
                                                  within 30 days. The quarterly invoices                  impose fees reasonably related to the                   approaches to developing a tiered
                                                  will identify within which tier the                     Participants’ self-regulatory obligations               model, including defining fee tiers
                                                  Industry Member falls. (See Section                     because the fees would be directly associated           based on such factors as size of firm,
                                                  3(a)(3)(C) [sic] below)                                 with the costs of establishing and                      message traffic or trading dollar volume.
                                                    • Centralized Payment. Each Industry                  maintaining the CAT, and not unrelated SRO              After analyzing the alternatives, it was
                                                  Member will receive from the Company                    services.21                                             concluded that the tiering should be
                                                  one invoice for its applicable CAT Fees,                Accordingly, the funding model                          based on the relative impact of CAT
                                                  not separate invoices from each                         imposes fees on both Participants and                   Reporters on the CAT System.
                                                  Participant of which it is a member. The                Industry Members.                                          Accordingly, the CAT NMS Plan
                                                  Industry Members will pay its CAT Fees                     In addition, as discussed in Appendix                contemplates that costs will be allocated
                                                  to the Company via the centralized                      C of the CAT NMS Plan, the Operating                    across the CAT Reporters on a tiered
                                                  system for the collection of CAT Fees                   Committee considered the advantages                     basis to allocate costs to those CAT
                                                  established by the Operating Committee.                 and disadvantages of a variety of                       Reporters that contribute more to the
                                                  (See Section 3(a)(3)(C) [sic] below)                    alternative funding and cost allocation                 costs of creating, implementing and
                                                    • Billing Commencement. Industry                      models before selecting the proposed                    maintaining the CAT.26 The fees to be
                                                  Members will begin to receive invoices                  model.22 After analyzing the various                    assessed at each tier are calculated so as
                                                  for CAT Fees as promptly as possible                    alternatives, the Operating Committee                   to recoup a proportion of costs
                                                  following the establishment of a billing                determined that the proposed tiered,                    appropriate to the message traffic or
                                                  mechanism. Bats will issue a Regulatory                 fixed fee funding model provides a                      market share (as applicable) from CAT
                                                  Circular to its members when the billing                variety of advantages in comparison to                  Reporters in each tier. Therefore,
                                                  mechanism is established, specifying                    the alternatives. First, the fixed fee                  Industry Members generating the most
                                                  the date when such invoicing of                         model, as opposed to a variable fee                     message traffic will be in the higher
                                                  Industry Members will commence. (See                    model, provides transparency, ease of                   tiers, and therefore be charged a higher
                                                  Section 3(a)(2)(G) [sic] below)                         calculation, ease of billing and other                  fee. Industry Members with lower levels
                                                                                                          administrative functions, and                           of message traffic will be in lower tiers
                                                  (2) Description of the CAT Funding
                                                                                                          predictability of a fixed fee. Such factors             and will be assessed a smaller fee for the
                                                  Model                                                                                                           CAT.27 Correspondingly, Execution
                                                                                                          are crucial to estimating a reliable
                                                    Article XI of the CAT NMS Plan                        revenue stream for the Company and for                  Venues with the highest market share
                                                  requires the Operating Committee to                     permitting CAT Reporters to reasonably                  will be in the top tier, and therefore will
                                                  approve the operating budget, including                 predict their payment obligations for                   be charged a higher fee. Execution
                                                  projected costs of developing and                       budgeting purposes.23 Additionally, a
                                                  operating the CAT for the upcoming                                                                              would pay different rates per message traffic order
                                                  year. As set forth in Article XI of the                   18 Approval
                                                                                                                                                                  event (e.g., an Industry Member with the largest
                                                                                                                           Order at 84796.                        amount of message traffic in one tier would pay a
                                                  CAT NMS Plan, the CAT NMS Plan
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                                                                                                             19 Id. at 84794.
                                                                                                                                                                  smaller amount per order event than an Industry
                                                  requires a bifurcated funding model,                       20 Id. at 84795.                                     Member in the same tier with the least amount of
                                                  where costs associated with building                       21 Id. at 84794.                                     message traffic). Such variation is the natural result
                                                  and operating the Central Repository                       22 Section B.7, Appendix C of the CAT NMS Plan,      of a tiered fee structure.
                                                                                                                                                                    24 Approval Order at 84796.
                                                  would be borne by (1) Participants and                  Approval Order at 85006.
                                                                                                             23 In choosing a tiered fee structure, the SROs        25 Section B.7, Appendix C of the CAT NMS Plan,
                                                  Industry Members that are Execution                     concluded that the variety of benefits offered by a     Approval Order at 85006.
                                                  Venues through fixed tier fees based on                 tiered fee structure, discussed above, outweighed         26 Approval Order at 85005.

                                                  market share, and (2) Industry Members                  the fact that Industry Members in any particular tier     27 Id.




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                                                                                 Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices                                            25451

                                                  Venues with a lower market share will                   and would not be assessed a fee for this              selected approach of charging a fee
                                                  be in the lower tier and will be assessed               traffic directly as they would under a                designated to cover CAT costs only.
                                                  a smaller fee for the CAT.28                            more directly metered model. In                         A full description of the funding
                                                     The Commission also noted in                         contrast, strictly variable or metered                model is set forth below. This
                                                  approving the CAT NMS Plan that                         funding models based on message                       description includes the framework for
                                                  ‘‘[t]he Participants have offered a                     volume were far more likely to affect                 the funding model as set forth in the
                                                  credible justification for using different              market behavior. In approving the CAT                 CAT NMS Plan, as well as the details as
                                                  criteria to charge Execution Venues                     NMS Plan, the SEC stated that ‘‘[t]he                 to how the funding model will be
                                                  (market share) and Industry Members                     Participants also offered a reasonable                applied in practice, including the
                                                  (message traffic)’’ 29 in the CAT funding               basis for establishing a funding model                number of fee tiers and the applicable
                                                  model. While there are multiple factors                 based on broad tiers, in that it may be               fees for each tier. Bats notes that the
                                                  that contribute to the cost of building,                . . . less likely to have an incremental              complete funding model is described
                                                  maintaining and using the CAT,                          deterrent effect on liquidity                         below, including those fees that are to
                                                  processing and storage of incoming                      provision.’’ 35                                       be paid by the Participants. The
                                                  message traffic is one of the most                         The CAT NMS Plan is structured to                  proposed Consolidated Audit Trail
                                                  significant cost drivers for the CAT.30                 avoid potential conflicts raised by the               Funding Fees, however, do not apply to
                                                  Thus, the CAT NMS Plan provides that                    Operating Committee determining fees                  the Participants; the proposed
                                                  the fees payable by Industry Members                    applicable to its own members—the                     Consolidated Audit Trail Funding Fees
                                                  (other than Execution Venue ATSs) will                  Participants. First, the Company will be
                                                                                                                                                                only apply to Industry Members. The
                                                  be based on the message traffic                                                                               CAT fees for Participants will be
                                                                                                          operated on a ‘‘break-even’’ basis, with
                                                  generated by such Industry Member.31                                                                          imposed separately by the Operating
                                                                                                          fees imposed to cover costs and an
                                                     The CAT NMS Plan provides that the                                                                         Committee pursuant to the CAT NMS
                                                  Operating Committee will use different                  appropriate reserve. Any surpluses will
                                                                                                                                                                Plan.
                                                  criteria to establish fees for Execution                be treated as an operational reserve to
                                                  Venues and non-Execution Venues due                     offset future fees and will not be                    (A) Funding Principles
                                                  to the fundamental differences between                  distributed to the Participants as                       Section 11.2 of the CAT NMS Plan
                                                  the two types of entities. In particular,               profits.36 To ensure that the                         sets forth the principles that the
                                                  the CAT NMS Plan provides that fees                     Participants’ operation of the CAT will               Operating Committee applied in
                                                  charged to CAT Reporters that are                       not contribute to the funding of their                establishing the funding for the
                                                  Execution Venues will be based on the                   other operations, Section 11.1(c) of the              Company. The Operating Committee has
                                                  level of market share and that costs                    CAT NMS Plan specifically states that                 considered these funding principles as
                                                  charged to Industry Members (other                      ‘‘[a]ny surplus of the Company’s                      well as the other funding requirements
                                                  than Execution Venue ATSs) will be                      revenues over its expenses shall be                   set forth in the CAT NMS Plan and in
                                                  based upon message traffic.32 Because                   treated as an operational reserve to                  Rule 613 in developing the proposed
                                                  most Participant message traffic consists               offset future fees.’’ In addition, as set             funding model. The following are the
                                                  of quotations, and Participants usually                 forth in Article VIII of the CAT NMS                  funding principles in Section 11.2 of the
                                                  disseminate quotations in all                           Plan, the Company ‘‘intends to operate                CAT NMS Plan:
                                                  instruments they trade, regardless of                   in a manner such that it qualifies as a                  • To create transparent, predictable
                                                  execution volume, Execution Venues                      ‘business league’ within the meaning of               revenue streams for the Company that
                                                  that are Participants generally                         Section 501(c)(6) of the [Internal                    are aligned with the anticipated costs to
                                                  disseminate similar amounts of message                  Revenue] Code.’’ To qualify as a                      build, operate and administer the CAT
                                                  traffic. Accordingly, basing fees for                   business league, an organization must                 and other costs of the Company;
                                                  Execution Venues on message traffic                     ‘‘not [be] organized for profit and no                   • To establish an allocation of the
                                                  would not provide the same degree of                    part of the net earnings of [the                      Company’s related costs among
                                                  differentiation among Execution Venues                  organization can] inure[] to the benefit              Participants and Industry Members that
                                                  that it does among Industry Members                     of any private shareholder or                         is consistent with the Exchange Act,
                                                  (other than Execution Venue ATSs). In                   individual.’’ 37 As the SEC stated when               taking into account the timeline for
                                                  contrast, execution volume more                         approving the CAT NMS Plan, ‘‘the                     implementation of the CAT and
                                                  accurately delineates the different levels              Commission believes that the                          distinctions in the securities trading
                                                  of trading activity of Execution                        Company’s application for Section                     operations of Participants and Industry
                                                  Venues.33                                               501(c)(6) business league status                      Members and their relative impact upon
                                                     The CAT NMS Plan’s funding model                     addresses issues raised by commenters                 the Company’s resources and
                                                  also is structured to avoid a ‘‘reduction               about the Plan’s proposed allocation of               operations;
                                                  in market quality.’’ 34 The tiered, fixed               profit and loss by mitigating concerns                   • To establish a tiered fee structure in
                                                  fee funding model is designed to limit                  that the Company’s earnings could be                  which the fees charged to: (i) CAT
                                                  the disincentives to providing liquidity                used to benefit individual                            Reporters that are Execution Venues,
                                                  to the market. For example, the                         Participants.’’ 38                                    including ATSs, are based upon the
                                                  Participants expect that a firm that had                   Finally, by adopting a CAT-specific                level of market share; (ii) Industry
                                                  a large volume of quotes would likely be                fee, the Participants will be fully                   Members’ non-ATS activities are based
                                                  categorized in one of the upper tiers,                  transparent regarding the costs of the                upon message traffic; (iii) the CAT
                                                                                                          CAT. Charging a general regulatory fee,               Reporters with the most CAT-related
                                                    28 Id.
                                                                                                          which would be used to cover CAT                      activity (measured by market share and/
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                                                    29 Id.
                                                         at 84796.                                        costs as well as other regulatory costs,              or message traffic, as applicable) are
                                                    30 SectionB.7, Appendix C of the CAT NMS Plan,
                                                                                                          would be less transparent than the                    generally comparable (where, for these
                                                  Approval Order at 85005.
                                                   31 Section 11.3(b) of the CAT NMS Plan.
                                                                                                                                                                comparability purposes, the tiered fee
                                                   32 Section 11.2(c) of the CAT NMS Plan.                 35 Approval  Order at 84796.                         structure takes into consideration
                                                   33 Section B.7, Appendix C of the CAT NMS Plan,         36 Id.at 84792.                                      affiliations between or among CAT
                                                  Approval Order at 85005.                                 37 26 U.S.C. 501(c)(6).                              Reporters, whether Execution Venue
                                                   34 Section 11.2(e) of the CAT NMS Plan.                 38 Approval Order at 84793.                          and/or Industry Members);


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                                                  25452                          Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices

                                                    • To provide for ease of billing and                  message traffic to the CAT would be                   percentage of total market volume for
                                                  other administrative functions;                         adequately differentiated from Industry               each tier based on the historical message
                                                    • To avoid any disincentives such as                  Members submitting substantially more                 traffic upon which Industry Members
                                                  placing an inappropriate burden on                      message traffic. The Operating                        had been initially ranked. Taking this
                                                  competition and a reduction in market                   Committee considered historical                       into account along with the resulting
                                                  quality; and                                            message traffic generated by Industry                 percentage of total recovery, the
                                                    • To build financial stability to                     Members across all exchanges and as                   percentage allocation of costs recovered
                                                  support the Company as a going                          submitted to FINRA’s Order Audit Trail                for each tier were assigned, allocating
                                                  concern.                                                System (‘‘OATS’’), and considered the                 higher percentages of recovery to tiers
                                                                                                          distribution of firms with similar levels             with higher levels of message traffic
                                                  (B) Industry Member Tiering
                                                                                                          of message traffic, grouping together                 while avoiding any inappropriate
                                                     Under Section 11.3(b) of the CAT                     firms with similar levels of message                  burden on competition. Furthermore, by
                                                  NMS Plan, the Operating Committee is                    traffic. Based on this, the Operating                 using percentages of Industry Members
                                                  required to establish fixed fees to be                  Committee determined that nine tiers                  and costs recovered per tier, the
                                                  payable by Industry Members, based on                   would best group firms with similar                   Operating Committee sought to include
                                                  message traffic generated by such                       levels of message traffic, charging those             stability and elasticity within the
                                                  Industry Member, with the Operating                     firms with higher impact on the CAT                   funding model, allowing the funding
                                                  Committee establishing at least five and                more, while lowering the burden of                    model to respond to changes in either
                                                  no more than nine tiers.                                Industry Members that have less CAT-                  the total number of Industry Members or
                                                     The CAT NMS Plan clarifies that the                  related activity.                                     the total level of message traffic.
                                                  fixed fees payable by Industry Members                     Each Industry Member (other than
                                                  pursuant to Section 11.3(b) shall, in                   Execution Venue ATSs) will be ranked                     The following chart illustrates the
                                                  addition to any other applicable                        by message traffic and tiered by                      breakdown of nine Industry Member
                                                  message traffic, include message traffic                predefined Industry Member                            tiers across the monthly average of total
                                                  generated by: (i) An ATS that does not                  percentages (the ‘‘Industry Member                    equity and equity options orders,
                                                  execute orders that is sponsored by such                Percentages’’). The Operating                         cancels and quotes in Q1 2016 and
                                                  Industry Member; and (ii) routing orders                Committee determined to use                           identifies relative gaps across varying
                                                  to and from any ATS sponsored by such                   predefined percentages rather than fixed              levels of Industry Member message
                                                  Industry Member. In addition, the                       volume thresholds to allow the funding                traffic as well as message traffic
                                                  Industry Member fees will apply to                      model to ensure that the total CAT fees               thresholds between the largest of
                                                  Industry Members that act as routing                    collected recover the intended CAT                    Industry Member message traffic gaps.
                                                  broker-dealers for exchanges. The                       costs regardless of changes in the total              The Operating Committee referenced
                                                  Industry Member fees will not be                        level of message traffic. To determine                similar distribution illustrations to
                                                  applicable, however, to an ATS that                     the fixed percentage of Industry                      determine the appropriate division of
                                                  qualifies as an Execution Venue, as                     Members in each tier, the Operating                   Industry Member percentages in each
                                                  discussed in more detail in the section                 Committee analyzed historical message                 tier by considering the grouping of firms
                                                  on Execution Venue tiering.                             traffic generated by Industry Members                 with similar levels of message traffic
                                                     In accordance with Section 11.3(b),                  across all exchanges and as submitted to              and seeking to identify relative
                                                  the Operating Committee approved a                      OATS, and considered the distribution                 breakpoints in the message traffic
                                                  tiered fee structure for Industry                       of firms with similar levels of message               between such groupings. In reviewing
                                                  Members (other than Execution Venue                     traffic, grouping together firms with                 the chart and its corresponding table,
                                                  ATSs) as described in this section. In                  similar levels of message traffic. Based              note that while these distribution
                                                  determining the tiers, the Operating                    on this, the Operating Committee                      illustrations were referenced to help
                                                  Committee considered the funding                        identified tiers that would group firms               differentiate between Industry Member
                                                  principles set forth in Section 11.2 of                 with similar levels of message traffic,               tiers, the proposed funding model is
                                                  the CAT NMS Plan, seeking to create                     charging those firms with higher impact               directly driven, not by fixed message
                                                  funding tiers that take into account the                on the CAT more, while lowering the                   traffic thresholds, but rather by fixed
                                                  relative impact on CAT System                           burden on Industry Members that have                  percentages of Industry Members across
                                                  resources of different Industry Members,                less CAT-related activity.                            tiers to account for fluctuating levels of
                                                  and that establish comparable fees                         The percentage of costs recovered by               message traffic across time and to
                                                  among the CAT Reporters with the most                   each Industry Member tier will be                     provide for the financial stability of the
                                                  Reportable Events. The Operating                        determined by predefined percentage                   CAT by ensuring that the funding model
                                                  Committee has determined that                           allocations (the ‘‘Industry Member                    will recover the required amounts
                                                  establishing nine tiers results in the                  Recovery Allocation’’). In determining                regardless of changes in the number of
                                                  fairest allocation of fees, best                        the fixed percentage allocation of costs              Industry Members or the amount of
                                                  distinguishing between Industry                         recovered for each tier, the Operating                message traffic. Actual messages in any
                                                  Members with differing levels of                        Committee considered the impact of                    tier will vary based on the actual traffic
                                                  message traffic. Thus, each such                        CAT Reporter message traffic on the                   in a given measurement period, as well
                                                  Industry Member will be placed into                     CAT System as well as the distribution                as the number of firms included in the
                                                  one of nine tiers of fixed fees, based on               of total message volume across Industry               measurement period. The Industry
                                                  ‘‘message traffic’’ for a defined period                Members while seeking to maintain                     Member Percentages and Industry
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                                                  (as discussed below). A nine tier                       comparable fees among the largest CAT                 Member Recovery Allocation for each
                                                  structure was selected to provide the                   Reporters. Accordingly, following the                 tier will remain fixed with each
                                                  widest range of levels for tiering                      determination of the percentage of                    Industry Member’s tier to be reassigned
                                                  Industry Members such that Industry                     Industry Members in each tier, the                    periodically, as described below in
                                                  Members submitting significantly less                   Operating Committee identified the                    Section 3(a)(1)(H) [sic].




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                                                                                               Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices                                                                                              25453




                                                                                                                                                                                                                                                     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
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                                                     For the purposes of creating these                                          for the period after the start of CAT                                           start of CAT reporting, ‘‘message traffic’’
                                                  tiers based on message traffic, the                                            reporting. The different definition for                                         will be comprised of historical equity
                                                  Operating Committee determined to                                              message traffic is necessary as there will                                      and equity options orders, cancels and
                                                  define the term ‘‘message traffic’’                                            be no Reportable Events as defined in                                           quotes provided by each exchange and
                                                  separately for the period before the                                           the Plan, prior to the commencement of                                          FINRA over the previous three
                                                  commencement of CAT reporting and                                              CAT reporting. Accordingly, prior to the
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                                                  25454                          Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices

                                                  months.39 Prior to the start of CAT                     Industry Members while still providing                 model treats the two types of Execution
                                                  reporting, orders would be comprised of                 predictability in the tiering for Industry             Venues.
                                                  the total number of equity and equity                   Members. Because fee tiers will be
                                                                                                                                                                 (I) NMS Stocks and OTC Equity
                                                  options orders received and originated                  calculated based on message traffic from
                                                                                                                                                                 Securities
                                                  by a member of an exchange or FINRA                     the prior three months, the Operating
                                                  over the previous three-month period,                   Committee will begin calculating                          Section 11.3(a)(i) of the CAT NMS
                                                  including principal orders, cancel/                     message traffic based on an Industry                   Plan states that each Execution Venue
                                                  replace orders, market maker orders                     Member’s Reportable Events reported to                 that (i) executes transactions or, (ii) in
                                                  originated by a member of an exchange,                  the CAT once the Industry Member has                   the case of a national securities
                                                  and reserve (iceberg) orders as well as                 been reporting to the CAT for three                    association, has trades reported by its
                                                  order routes and executions originated                  months. Prior to that, fee tiers will be               members to its trade reporting facility or
                                                  by a member of FINRA, and excluding                     calculated as discussed above with                     facilities for reporting transactions
                                                  order rejects and implied orders.40 In                  regard to the period prior to CAT                      effected otherwise than on an exchange,
                                                  addition, prior to the start of CAT                     reporting.                                             in NMS Stocks or OTC Equity Securities
                                                  reporting, cancels would be comprised                                                                          will pay a fixed fee depending on the
                                                  of the total number of equity and equity                (C) Execution Venue Tiering                            market share of that Execution Venue in
                                                  option cancels received and originated                     Under Section 11.3(a) of the CAT                    NMS Stocks and OTC Equity Securities,
                                                  by a member of an exchange or FINRA                     NMS Plan, the Operating Committee is                   with the Operating Committee
                                                  over a three-month period, excluding                    required to establish fixed fees payable               establishing at least two and not more
                                                  order modifications (e.g., order updates,               by Execution Venues. Section 1.1 of the                than five tiers of fixed fees, based on an
                                                  order splits, partial cancels).                         CAT NMS Plan defines an Execution                      Execution Venue’s NMS Stocks and
                                                  Furthermore, prior to the start of CAT                  Venue as ‘‘a Participant or an alternative             OTC Equity Securities market share. For
                                                  reporting, quotes would be comprised of                 trading system (‘‘ATS’’) (as defined in                these purposes, market share for
                                                  information readily available to the                    Rule 300 of Regulation ATS) that                       Execution Venues that execute
                                                  exchanges and FINRA, such as the total                  operates pursuant to Rule 301 of                       transactions will be calculated by share
                                                  number of historical equity and equity                  Regulation ATS (excluding any such                     volume, and market share for a national
                                                  options quotes received and originated                  ATS that does not execute orders).’’ 42                securities association that has trades
                                                  by a member of an exchange or FINRA                        The Participants determined that                    reported by its members to its trade
                                                  over the prior three-month period.                      ATSs should be included within the                     reporting facility or facilities for
                                                    After an Industry Member begins                       definition of Execution Venue. Given                   reporting transactions effected
                                                  reporting to the CAT, ‘‘message traffic’’               the similarity between the activity of                 otherwise than on an exchange in NMS
                                                  will be calculated based on the Industry                                                                       Stocks or OTC Equity Securities will be
                                                                                                          exchanges and ATSs, both of which
                                                  Member’s Reportable Events reported to                                                                         calculated based on share volume of
                                                                                                          meet the definition of an ‘‘exchange’’ as
                                                  the CAT as will be defined in the                                                                              trades reported, provided, however, that
                                                                                                          set forth in the Exchange Act and the
                                                  Technical Specifications.41                                                                                    the share volume reported to such
                                                                                                          fact that the similar trading models
                                                    The Operating Committee has                                                                                  national securities association by an
                                                                                                          would have similar anticipated burdens
                                                  determined to calculate fee tiers every                                                                        Execution Venue shall not be included
                                                                                                          on the CAT, the Participants determined
                                                  three months, on a calendar quarter                                                                            in the calculation of such national
                                                                                                          that ATSs should be treated in the same
                                                  basis, based on message traffic from the                                                                       security association’s market share.
                                                                                                          manner as the exchanges for the                           In accordance with Section 11.3(a)(i)
                                                  prior three months. Based on its
                                                                                                          purposes of determining the level of fees              of the CAT NMS Plan, the Operating
                                                  analysis of historical data, the Operating
                                                                                                          associated with the CAT.43                             Committee approved a tiered fee
                                                  Committee believes that calculating tiers
                                                                                                             Given the differences between                       structure for Equity Execution Venues
                                                  based on three months of data will
                                                                                                          Execution Venues that trade NMS                        and Option Execution Venues. In
                                                  provide the best balance between
                                                                                                          Stocks and/or OTC Equity Securities                    determining the Equity Execution
                                                  reflecting changes in activity by
                                                                                                          and Execution Venues that trade Listed                 Venue Tiers, the Operating Committee
                                                     39 The SEC approved exemptive relief permitting      Options, Section 11.3(a) addresses                     considered the funding principles set
                                                  Options Market Maker quotes to be reported to the       Execution Venues that trade NMS                        forth in Section 11.2 of the CAT NMS
                                                  Central Repository by the relevant Options              Stocks and/or OTC Equity Securities                    Plan, seeking to create funding tiers that
                                                  Exchange in lieu of requiring that such reporting be    separately from Execution Venues that
                                                  done by both the Options Exchange and the Options                                                              take into account the relative impact on
                                                  Market Maker, as required by Rule 613 of
                                                                                                          trade Listed Options. Equity and                       system resources of different Equity
                                                  Regulation NMS. See Securities Exchange Act             Options Execution Venues are treated                   Execution Venues, and that establish
                                                  Release No. 77265 (Mar. 1, 2017 [sic], 81 FR 11856      separately for two reasons. First, the                 comparable fees among the CAT
                                                  (Mar. 7, 2016). This exemption applies to Options       differing quoting behavior of Equity and
                                                  Market Maker quotes for CAT reporting purposes
                                                                                                                                                                 Reporters with the most Reportable
                                                  only. Therefore, notwithstanding the reporting
                                                                                                          Options Execution Venues makes                         Events. Each Equity Execution Venue
                                                  exemption provided for Options Market Maker             comparison of activity between                         will be placed into one of two tiers of
                                                  quotes, Options Market Maker quotes will be             Execution Venues difficult. Second,                    fixed fees, based on the Execution
                                                  included in the calculation of total message traffic    Execution Venue tiers are calculated
                                                  for Options Market Makers for purposes of tiering
                                                                                                                                                                 Venue’s NMS Stocks and OTC Equity
                                                  under the CAT funding model both prior to CAT
                                                                                                          based on market share of share volume,                 Securities market share. In choosing two
                                                  reporting and once CAT reporting commences.             and it is therefore difficult to compare               tiers, the Operating Committee
                                                     40 Consequently, firms that do not have ‘‘message    market share between asset classes (i.e.,              performed an analysis similar to that
                                                  traffic’’ reported to an exchange or OATS before        equity shares versus options contracts).               discussed above with regard to the non-
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                                                  they are reporting to the CAT would not be subject      Discussed below is how the funding
                                                  to a fee until they begin to report information to                                                             Execution Venue Industry Members to
                                                  CAT.                                                                                                           determine the number of tiers for Equity
                                                     41 If an Industry Member (other than an Execution      42 Although FINRA does not operate an execution
                                                                                                                                                                 Execution Venues. The Operating
                                                  Venue ATS) has no orders, cancels or quotes prior       venue, because it is a Participant, it is considered   Committee determined to establish two
                                                  to the commencement of CAT Reporting, or no             an ‘‘Execution Venue’’ under the Plan for purposes
                                                  Reportable Events after CAT reporting commences,        of determining fees.                                   tiers for Equity Execution Venues, rather
                                                  then the Industry Member would not have a CAT             43 Section B.7, Appendix C of the CAT NMS Plan,      than a larger number of tiers as
                                                  fee obligation.                                         Approval Order at 85005.                               established for non-Execution Venue


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                                                                                             Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices                                                                            25455

                                                  Industry Members, because the two tiers                                      during the recent tiering period. A                                        largest CAT Reporters. Accordingly,
                                                  were sufficient to distinguish between                                       37.80/62.20 split was applied to the                                       following the determination of the
                                                  the smaller number of Equity Execution                                       ATS and non-ATS breakdown of FINRA                                         percentage of Execution Venues in each
                                                  Venues based on market share.                                                market share, with FINRA tiered based                                      tier, the Operating Committee identified
                                                  Furthermore, the incorporation of                                            only on the non-ATS portion of its TRF                                     the percentage of total market volume
                                                  additional Equity Execution Venue tiers                                      market share of share volume.                                              for each tier based on the historical
                                                  would result in significantly higher fees                                       Based on this, the Operating                                            market share upon which Execution
                                                  for Tier 1 Equity Execution Venues and                                       Committee considered the distribution                                      Venues had been initially ranked.
                                                  diminish comparability between                                               of Execution Venues, and grouped                                           Taking this into account along with the
                                                  Execution Venues and Industry                                                together Execution Venues with similar                                     resulting percentage of total recovery,
                                                  Members.                                                                     levels of market share of share volume.                                    the percentage allocation of costs
                                                     Each Equity Execution Venue will be                                       In doing so, the Participants considered                                   recovered for each tier were assigned,
                                                  ranked by market share and tiered by                                         that, as previously noted, Execution                                       allocating higher percentages of
                                                  predefined Execution Venue                                                   Venues in many cases have similar                                          recovery to the tier with a higher level
                                                  percentages, (the ‘‘Equity Execution                                         levels of message traffic due to quoting                                   of market share while avoiding any
                                                  Venue Percentages’’). In determining the                                     activity, and determined that it was                                       inappropriate burden on competition.
                                                  fixed percentage of Equity Execution                                         simpler and more appropriate to have                                       Furthermore, due to the similar levels of
                                                  Venues in each tier, the Operating                                           fewer, rather than more, Execution                                         impact on the CAT System across
                                                  Committee looked at historical market                                        Venue tiers to distinguish between                                         Execution Venues, there is less variation
                                                  share of share volume for execution                                          Execution Venues.                                                          in CAT Fees between the highest and
                                                  venues. Equities Execution Venue                                                The percentage of costs recovered by                                    lowest of tiers for Execution Venues.
                                                  market share of share volume were                                            each Equity Execution Venue tier will                                      Furthermore, by using percentages of
                                                  sourced from market statistics made                                          be determined by predefined percentage                                     Equity Execution Venues and costs
                                                  publicly-available by Bats Global                                            allocations (the ‘‘Equity Execution                                        recovered per tier, the Operating
                                                  Markets, Inc. (‘‘Bats’’). ATS market                                         Venue Recovery Allocation’’). In                                           Committee sought to include stability
                                                  share of share volume was sourced from                                       determining the fixed percentage                                           and elasticity within the funding model,
                                                  market statistics made publicly-                                             allocation of costs recovered for each                                     allowing the funding model to respond
                                                  available by FINRA. FINRA trading [sic]                                      tier, the Operating Committee                                              to changes in either the total number of
                                                  reporting facility (‘‘TRF’’) market share                                    considered the impact of CAT Reporter                                      Equity Execution Venues or changes in
                                                  of share volume was sourced from                                             market share activity on the CAT                                           market share.
                                                  market statistics made publicly                                              System as well as the distribution of                                         Based on this analysis, the Operating
                                                  available by Bats. As indicated by                                           total market volume across Equity                                          Committee approved the following
                                                  FINRA, ATSs accounted for 37.80% of                                          Execution Venues while seeking to                                          Equity Execution Venue Percentages
                                                  the share volume across the TRFs                                             maintain comparable fees among the                                         and Recovery Allocations:

                                                                                                                                                                                                        Percentage of     Percentage of
                                                                                                                                                                                                           Equity          Execution      Percentage of
                                                                                                     Equity Execution Venue tier                                                                         Execution           Venue        total 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                                          tier to be reassigned periodically, as                    For these purposes, market share will be
                                                  relative separation of market share of                                       described below in Section 3(a)(1)(I)                     calculated by contract volume.
                                                  share volume between Tier 1 and Tier                                         [sic].                                                      In accordance with Section 11.3(a)(ii)
                                                  2 Equity Execution Venues. In                                                                                                          of the CAT NMS Plan, the Operating
                                                  reviewing the table, note that while this                                                                                Equity market Committee approved a tiered fee
                                                  division was referenced as a data point                                                                                    share of
                                                                                                                                                                           share volume structure for Options Execution Venues.
                                                                                                                                Equity Execution Venue tier
                                                  to help differentiate between Equity                                                                                          (%)      In determining the tiers, the Operating
                                                  Execution Venue tiers, the proposed                                                                                                    Committee considered the funding
                                                  funding model is directly driven not by                                      Tier 1 ....................................            ≥1 principles set forth in Section 11.2 of
                                                  market share thresholds, but rather by                                       Tier 2 ....................................            <1 the CAT NMS Plan, seeking to create
                                                  fixed percentages of Equity Execution                                                                                                  funding tiers that take into account the
                                                  Venues across tiers to account for                                           (II) Listed Options                                       relative impact on system resources of
                                                  fluctuating levels of market share across                                                                                              different Options Execution Venues,
                                                  time. Actual market share in any tier                                           Section 11.3(a)(ii) of the CAT NMS                     and that establish comparable fees
                                                  will vary based on the actual market                                         Plan states that each Execution Venue                     among the CAT Reporters with the most
                                                  activity in a given measurement period,                                      that executes transactions in Listed                      Reportable Events. Each Options
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                                                  as well as the number of Equity                                              Options will pay a fixed fee depending                    Execution Venue will be placed into one
                                                  Execution Venues included in the                                             on the Listed Options market share of                     of two tiers of fixed fees, based on the
                                                  measurement period. The Equity                                               that Execution Venue, with the                            Execution Venue’s Listed Options
                                                  Execution Venue Percentages and                                              Operating Committee establishing at                       market share. In choosing two tiers, the
                                                  Equity Execution Venue Recovery                                              least two and no more than five tiers of                  Operating Committee performed an
                                                  Allocation for each tier will remain                                         fixed fees, based on an Execution                         analysis similar to that discussed above
                                                  fixed with each Equity Execution Venue                                       Venue’s Listed Options market share.                      with regard to Industry Members (other


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                                                  25456                                      Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices

                                                  than Execution Venue ATSs) to                                                Venue Percentages’’). To determine the                                     market share activity on the CAT
                                                  determine the number of tiers for                                            fixed percentage of Options Execution                                      System as well as the distribution of
                                                  Options Execution Venues. The                                                Venues in each tier, the Operating                                         total market volume across Options
                                                  Operating Committee determined to                                            Committee analyzed the historical and                                      Execution Venues while seeking to
                                                  establish two tiers for Options                                              publicly available market share of                                         maintain comparable fees among the
                                                  Execution Venues, rather than a larger                                       Options Execution Venues to group                                          largest CAT Reporters. Furthermore, by
                                                  number of tiers as established for                                           Options Execution Venues with similar                                      using percentages of Options Execution
                                                  Industry Members (other than Execution                                       market shares across the tiers. Options                                    Venues and costs recovered per tier, the
                                                  Venue ATSs), because the two tiers                                           Execution Venue market share of share                                      Operating Committee sought to include
                                                  were sufficient to distinguish between                                       volume were sourced from market
                                                                                                                                                                                                          stability and elasticity within the
                                                  the smaller number of Options                                                statistics made publicly-available by
                                                                                                                                                                                                          funding model, allowing the funding
                                                  Execution Venues based on market                                             Bats. The process for developing the
                                                  share. Furthermore, due to the smaller                                       Options Execution Venue Percentages                                        model to respond to changes in either
                                                  number of Options Execution Venues,                                          was the same as discussed above with                                       the total number of Options Execution
                                                  the incorporation of additional Options                                      regard to Equity Execution Venues.                                         Venues or changes in market share. The
                                                  Execution Venue tiers would result in                                           The percentage of costs recovered by                                    process for developing the Options
                                                  significantly higher fees for Tier 1                                         each Options Execution Venue tier will                                     Execution Venue Recovery Allocation
                                                  Options Execution Venues and reduce                                          be determined by predefined percentage                                     was the same as discussed above with
                                                  comparability between Execution                                              allocations (the ‘‘Options Execution                                       regard to Equity Execution Venues.
                                                  Venues and Industry Members.                                                 Venue Recovery Allocation’’). In                                             Based on this analysis, the Operating
                                                    Each Options Execution Venue will                                          determining the fixed percentage                                           Committee approved the following
                                                  be ranked by market share and tiered by                                      allocation of costs recovered for each                                     Options Execution Venue Percentages
                                                  predefined Execution Venue                                                   tier, the Operating Committee                                              and Recovery Allocations:
                                                  percentages, (the ‘‘Options Execution                                        considered the impact of CAT Reporter

                                                                                                                                                                                                        Percentage of     Percentage of
                                                                                                                                                                                                           Options         Execution      Percentage of
                                                                                                    Options Execution Venue tier                                                                         Execution           Venue        total 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                                                                                       during the relevant time period.
                                                                                                                                                                                  Options mar-
                                                  relative separation of market share of                                                                                    Similarly, market share for Options
                                                                                                                                                                                       ket
                                                  share volume between Tier 1 and Tier                             Options Execution Venue tier                                  share of share
                                                                                                                                                                            Execution Venues will be determined by
                                                                                                                                                                                    volume
                                                                                                                                                                            calculating each Options Execution
                                                  2 Options Execution Venues. In                                                                                                       (%)
                                                  reviewing the table, note that while this                                                                                 Venue’s proportion of the total volume
                                                  division was referenced as a data point                          Tier 2 ....................................           <1 of Listed Options contracts reported by
                                                  to help differentiate between Options                                                                                     all Options Execution Venues during
                                                  Execution Venue tiers, the proposed                              (III) Market Share/Tier Assignments                      the relevant time period.
                                                  funding model is directly driven, not by                                                                                     The Operating Committee has
                                                                                                                      The Operating Committee determined determined to calculate fee tiers for
                                                  market share thresholds, but rather by                           that, prior to the start of CAT reporting,
                                                  fixed percentages of Options Execution                                                                                    Execution Venues every three months
                                                                                                                   market share for Execution Venues                        based on market share from the prior
                                                  Venues across tiers to account for                               would be sourced from publicly-
                                                  fluctuating levels of market share across                                                                                 three months. Based on its analysis of
                                                                                                                   available market data. Options and                       historical data, the Operating Committee
                                                  time. Actual market share in any tier                            equity volumes for Participants will be                  believes calculating tiers based on three
                                                  will vary based on the actual market                             sourced from market data made publicly months of data will provide the best
                                                  activity in a given measurement period,                          available by Bats while Execution                        balance between reflecting changes in
                                                  as well as the number of Options                                 Venue ATS volumes will be sourced                        activity by Execution Venues while still
                                                  Execution Venues included in the                                 from market data made publicly                           providing predictability in the tiering
                                                  measurement period. The Options                                  available by FINRA. Set forth in the                     for Execution Venues.
                                                  Execution Venue Percentages and                                  Appendix are two charts, one listing the
                                                  Equity Execution Venue Recovery                                  current Equity Execution Venues, each                    (D) Allocation of Costs
                                                  Allocation for each tier will remain                             with its rank and tier, and one listing                     In addition to the funding principles
                                                  fixed with each Options Execution                                the current Options Execution Venues,                    discussed above, including
                                                  Venue tier to be reassigned periodically,                        each with its rank and tier.                             comparability of fees, Section 11.1(c) of
                                                  as described below in Section 3(a)(1)(I)                            After the commencement of CAT                         the CAT NMS Plan also requires
                                                  [sic].                                                           reporting, market share for Execution                    expenses to be fairly and reasonably
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                                                                                                                   Venues will be sourced from data                         shared among the Participants and
                                                                                                     Options mar-  reported to the CAT. Equity Execution                    Industry Members. Accordingly, in
                                                                                                          ket      Venue market share will be determined                    developing the proposed fee schedules
                                                  Options Execution Venue tier                      share of share
                                                                                                       volume      by  calculating        each     Equity      Execution    pursuant to the funding model, the
                                                                                                          (%)      Venue’s proportion of the total volume                   Operating Committee calculated how
                                                                                                                   of NMS Stock and OTC Equity shares                       the CAT costs would be allocated
                                                  Tier 1 ....................................                   ≥1 reported by all Equity Execution Venues between Industry Members and



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                                                                                          Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices                                                                               25457

                                                  Execution Venues, and how the portion                                 than Execution Venues (e.g., an                                        costs to be comprised of Plan Processor
                                                  of CAT costs allocated to Execution                                   estimated 1,630 Industry Members                                       costs and non-Plan Processor costs,
                                                  Venues would be allocated between                                     versus 70 Execution Venues as of                                       which are estimated to be $50,700,000
                                                  Equity Execution Venues and Options                                   January 2017).                                                         in total for the year beginning November
                                                  Execution Venues. These                                                                                                                      21, 2016.44
                                                                                                                        (II) Allocation Between Equity
                                                  determinations are described below.                                                                                                             The Plan Processor costs relate to
                                                                                                                        Execution Venues and Options
                                                  (I) Allocation Between Industry                                       Execution Venues                                                       costs incurred by the Plan Processor and
                                                  Members and Execution Venues                                                                                                                 consist of the Plan Processor’s current
                                                                                                                           The Operating Committee also
                                                                                                                                                                                               estimates of average yearly ongoing
                                                     In determining the cost allocation                                 analyzed how the portion of CAT costs
                                                                                                                                                                                               costs, including development cost,
                                                  between Industry Members (other than                                  allocated to Execution Venues would be
                                                                                                                                                                                               which total $37,500,000. This amount is
                                                  Execution Venue ATSs) and Execution                                   allocated between Equity Execution
                                                                                                                                                                                               based upon the fees due to the Plan
                                                  Venues, the Operating Committee                                       Venues and Options Execution Venues.
                                                                                                                                                                                               Processor pursuant to the agreement
                                                  analyzed a range of possible splits for                               In considering this allocation of costs,
                                                                                                                                                                                               with the Plan Processor.
                                                  revenue recovered from such Industry                                  the Operating Committee analyzed a
                                                  Members and Execution Venues. Based                                   range of alternative splits for revenue                                   The non-Plan Processor estimated
                                                  on this analysis, the Operating                                       recovered between Equity and Options                                   costs incurred and to be incurred by the
                                                  Committee determined that 75 percent                                  Execution Venues, including a 70/30,                                   Company through November 21, 2017
                                                  of total costs recovered would be                                     67/33, 65/35, 50/50 and 25/75 split.                                   consist of three categories of costs. The
                                                  allocated to Industry Members (other                                  Based on this analysis, the Operating                                  first category of such costs are third
                                                  than Execution Venue ATSs) and 25                                     Committee determined to allocate 75                                    party support costs, which include
                                                  percent would be allocated to Execution                               percent of Execution Venue costs                                       historic legal fees, consulting fees and
                                                  Venues. The Operating Committee                                       recovered to Equity Execution Venues                                   audit fees from November 21, 2016 until
                                                  determined that this 75/25 division                                   and 25 percent to Options Execution                                    the date of filing as well as estimated
                                                  maintained the greatest level of                                      Venues. The Operating Committee                                        third party support costs for the rest of
                                                  comparability across the funding model,                               determined that a 75/25 division                                       the year. These amount to an estimated
                                                  keeping in view that comparability                                    between Equity and Options Execution                                   $5,200,000. The second category of non-
                                                  should consider affiliations among or                                 Venues maintained elasticity across the                                Plan Processor costs are estimated
                                                  between CAT Reporters (e.g., firms with                               funding model as well the greatest level                               insurance costs for the year. Based on
                                                  multiple Industry Members and/or                                      of fee equitability and comparability                                  discussions with potential insurance
                                                  exchange licenses). For example, the                                  based on the current number of Equity                                  providers, assuming $2–5 million
                                                  cost allocation establishes fees for the                              and Options Execution Venues. For                                      insurance premium on $100 million in
                                                  largest Industry Members (i.e., those                                 example, the allocation establishes fees                               coverage, the Company has received an
                                                  Industry Members in Tiers 1, 2 and 3)                                 for the larger Equity Execution Venues                                 estimate of $3,000,000 for the annual
                                                  that are comparable to the largest Equity                             that are comparable to the larger                                      cost. The final cost figures will be
                                                  Execution Venues and Options                                          Options Execution Venues, and fees for                                 determined following receipt of final
                                                  Execution Venues (i.e., those Execution                               the smaller Equity Execution Venues                                    underwriter quotes. The third category
                                                  Venues in Tier 1). In addition, the cost                              that are comparable to the smaller                                     of non-Plan Processor costs is the
                                                  allocation establishes fees for Execution                             Options Execution Venues. In addition                                  operational reserve, which is comprised
                                                  Venue complexes that are comparable to                                to fee comparability between Equity                                    of three months of ongoing Plan
                                                  those of Industry Member complexes.                                   Execution Venues and Options                                           Processor costs ($9,375,000), third party
                                                  For example, when analyzing                                           Execution Venues, the allocation also                                  support costs ($1,300,000) and
                                                  alternative allocations, other possible                               establishes equitability between larger                                insurance costs ($750,000). The
                                                  allocations led to much higher fees for                               (Tier 1) and smaller (Tier 2) Execution                                Operating Committee aims to
                                                  larger Industry Members than for larger                               Venues based upon the level of market                                  accumulate the necessary funds for the
                                                  Execution Venues or vice versa, and/or                                share. Furthermore, the allocation is                                  establishment of the three-month
                                                  led to much higher fees for Industry                                  intended to reflect the relative levels of                             operating reserve for the Company
                                                  Member complexes than Execution                                       current equity and options order events.                               through the CAT Fees charged to CAT
                                                  Venue complexes or vice versa.                                                                                                               Reporters for the year. On an ongoing
                                                     Furthermore, the allocation of total                               (E) Fee Levels                                                         basis, the Operating Committee will
                                                  CAT costs recovered recognizes the                                      The Operating Committee determined                                   account for any potential need for the
                                                  difference in the number of CAT                                       to establish a CAT-specific fee to                                     replenishment of the operating reserve
                                                  Reporters that are Industry Members                                   collectively recover the costs of building                             or other changes to total cost during its
                                                  versus CAT Reporters that are Execution                               and operating the CAT. Accordingly,                                    annual budgeting process. The
                                                  Venues. Specifically, the cost allocation                             under the funding model, the sum of the                                following table summarizes the Plan
                                                  takes into consideration that there are                               CAT Fees is designed to recover the                                    Processor and non-Plan Processor cost
                                                  approximately 25 times more Industry                                  total cost of the CAT. The Operating                                   components which comprise the total
                                                  Members expected to report to the CAT                                 Committee has determined overall CAT                                   CAT costs of $50,700,000.

                                                                                     Cost category                                                                              Cost component                                               Amount

                                                  Plan Processor ............................................................................   Operational Costs ......................................................................    $37,500,000
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                                                  Non-Plan Processor ....................................................................       Third Party Support Costs .........................................................            5,200,000
                                                                                                                                                Operational Reserve ..................................................................      45 5,000,000

                                                                                                                                                Insurance Costs .........................................................................      3,000,000




                                                     44 It is anticipated that CAT-related costs incurred

                                                  prior to November 21, 2016 will be addressed via
                                                  a separate fee filing.

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                                                  25458                                        Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices

                                                                                         Cost category                                                                                           Cost component                                                       Amount

                                                         Estimated Total ....................................................................               ....................................................................................................      50,700,000



                                                    Based on the estimated costs and the                                         Committee determined to impose the                                               For Industry Members (other than
                                                  calculations for the funding model                                             following fees: 46                                                             Execution Venue ATSs):
                                                  described above, the Operating

                                                                                                                                                                                                             Monthly CAT                Quarterly CAT              CAT fees paid
                                                                                                                          Tier                                                                                   fee                         fee                    annually 47

                                                  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:

                                                                                                                                                                                                             Monthly CAT                Quarterly CAT              CAT fees paid
                                                                                                                          Tier                                                                                   fee                         fee                    annually 48

                                                  1 ...................................................................................................................................................                $21,125                     $63,375             $253,500
                                                  2 ...................................................................................................................................................                 12,940                      38,820              155,280



                                                   For Execution Venues for Listed
                                                  Options:

                                                                                                                                                                                                             Monthly CAT                Quarterly CAT              CAT fees paid
                                                                                                                          Tier                                                                                   fee                         fee                    annually 49

                                                  1 ...................................................................................................................................................                $19,205                     $57,615             $230,460
                                                  2 ...................................................................................................................................................                 13,204                      39,612              158,448



                                                    As noted above, the fees set forth in                                        Operating Committee also determined                                            Execution Venue ATSs) and Execution
                                                  the tables reflect the Operating                                               that the fees for Execution Venue                                              Venues in the following manner. Note
                                                  Committee’s decision to ensure                                                 complexes should be comparable to                                              that the calculation of CAT Reporter
                                                  comparable fees between Execution                                              those of Industry Member complexes.                                            fees assumes 53 Equity Execution
                                                  Venues and Industry Members. The fees                                          The difference in the fees reflects this                                       Venues, 15 Options Execution Venues
                                                  of the top tiers for Industry Members                                          decision to recognize affiliations.                                            and 1,631 Industry Members (other than
                                                  (other than Execution Venue ATSs) are                                            The Operating Committee has                                                  Execution Venue ATSs) as of January
                                                  not identical to the top tier for                                              calculated the schedule of effective fees                                      2017.
                                                  Execution Venues, however, because the                                         for Industry Members (other than

                                                                                                    CALCULATION OF ANNUAL TIER FEES FOR INDUSTRY MEMBERS (‘‘IM’’)
                                                                                                                                                                                                                                          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
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                                                    45 This $5,000,000 represents the gradual                                    (other than Execution Venue ATSs) (i.e., ‘‘CAT Fees                            ‘‘CAT Fees Paid Annually’’ = ‘‘Monthly CAT Fee’’
                                                  accumulation of the funds for a target operating                               Paid Annually’’ = ‘‘Monthly CAT Fee’’ × 12                                     × 12 months).
                                                  reserve of $11,425,000.                                                        months).                                                                          49 This column represents the approximate total
                                                    46 Note that all monthly, quarterly and annual
                                                                                                                                   48 This column represents the approximate total                              CAT Fees paid each year by each Execution Venue
                                                  CAT Fees have been rounded to the nearest dollar.
                                                    47 This column represents the approximate total
                                                                                                                                 CAT Fees paid each year by each Execution Venue                                for Listed Options (i.e., ‘‘CAT Fees Paid Annually’’
                                                                                                                                 for NMS Stocks and OTC Equity Securities (i.e.,                                = ‘‘Monthly CAT Fee’’ × 12 months).
                                                  CAT Fees paid each year by each Industry Member



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                                                                                               Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices                                                                                                   25459

                                                                                        CALCULATION OF ANNUAL TIER FEES FOR INDUSTRY MEMBERS (‘‘IM’’)—Continued
                                                                                                                                                                                                                                           Percentage
                                                                                                                                                                                                               Percentage                                           Percentage
                                                                                                                                                                                                                                           of Industry
                                                                                                             Industry Member tier                                                                              of Industry                                            of total
                                                                                                                                                                                                                                            Member
                                                                                                                                                                                                                Members                                              recovery
                                                                                                                                                                                                                                            recovery

                                                  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 of
                                                                                                                                        Industry Member tier                                                                                                         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


                                                  BILLING CODE 8011–01–P
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                                                  25460                           Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices

                                                                                   Calculation 1.1 (Calculation of a Tier 1 Industry Member Monthly Fee)
                                                                       1,631 [Estimated Tot. IMs] x 0.5% [%of Tier 1 IMs] = 8 [Estimated Tier 1 IMs]
                                                                            $50, 700,000 [Tot.Ann.CAT Costs]x 75% [IM% ofTot.Ann.CAT Costs]x8.50% [%of Tier 1 IM Recovery])           +
                                                                        (                                        8 [Estimated Tier 1 !Ms]
                                                                                 12 [Months per year]               $33,668

                                                                                   Calculation 1.2 (Calculation of a Tier 2 Industry Member Monthly Fee)
                                                                       1,631 [Estimated Tot. IMs] x 2.5% [%of Tier 2 IMs] = 41 [Estimated Tier 2 IMs]
                                                                            $50, 700,000 fTot.Ann.CAT Costs]x 75% [IM% ofTot.Ann.CAT Costs]x35% [%of Tier 2 IM Recovery])         +
                                                                        (                                       41 [Estimated Tier 2 JMs]
                                                                                 12 [Months per year] = $27,051

                                                                                   Calculation 1.3 (Calculation of a Tier 3 Industry Member Monthly Fee)
                                                                       1,631 [Estimated Tot. IMs] x 2.125% [%of Tier 3 IMs] = 35 [Estimated Tier 3 IMs]
                                                                            $50,700,000 [Tot.Ann.CAT Costs]x 75% [IM% ofTot.Ann.CAT Costs]x21.25% [%of Tier 3 JM Recovery]) +
                                                                        (                                       35 [Estimated Tier 3 !Msj
                                                                                 12 [Months per year]           = $19,239
                                                                                   Calculation 1.4 (Calculation of a Tier 4 Industry Member Monthly Fee)
                                                                       1,631 [Estimated Tot. IMs] x 4.625% [%of Tier 4 IMs] = 75 [Estimated Tier 4 IMs]
                                                                            $50,700,000 [Tot.Ann.CAT Costs]x 75% [IM% ofTot.Ann.CAT Costs]x15.750ft, l% of Tier 4 IM Recovery]) +
                                                                        (                                       75 [Estimated Tier 4 !Ms]
                                                                                 12 [Months peryear] = $6,655

                                                                                   Calculation 1.5 (Calculation of a Tier 5 Industry Membet· Annual Fee)
                                                                       1,631 [Estimated Tot. IMs] x 3.625% [%of Tier 5 IMs] =59 [Estimated Tier 5 IMs]
                                                                            $50,700,000 [Tot.Ann.CAT Costs]x 75% fJM% ofTot.Ann.CAT Costs]x7.75% [%of Tier 5 IM Recovery])            +
                                                                        (                                       59 [Estimated Tier 5 IMs]
                                                                                 12 [Months per year]              $4,163

                                                                                   Calculation 1.6 (Calculation of a Tier 6 Industry Member Monthly Fee)
                                                                       1,631 [Estimated Tot. IMs] x 4% [%of Tier 6 IMs] = 65 [Estimated Tier 6 IMs]
                                                                            $50,700,000 [Tot.Ann.CAT Costs]x 75% [IM% ofTot.Ann.CAT Costs]x5.25% [%of Tier 6 JM Recovery])            +
                                                                        (                                       65 [Estimated Tier 6 !Ms]
                                                                                 12 [Months per year] = $2,560

                                                                                   Calculation 1.7 (Calculation of a Tier 7 Industry Member Monthly Fee)
                                                                       1,631 [Estimated Tot. IMs] x 17.5% [%of Tier 7 IMs] = 285 [Estimated Tier 7 IMs]
                                                                            $50,700,000 [Tot.Ann.CAT Costs]x 75% [IM% ofTot.Ann.CAT Costsjx4.50% [%of Tier 7 IM Recovery])            +
                                                                        (                                      285 [Estimated Tier 7 !Ms]
                                                                                 12 [Months per year] = $501

                                                                                          Calculation 1.8 (Calculation of a Tier 8 Industry Member Monthly Fee)
                                                                       1,631 [Estimated Tot. IMs] x 20.125% [%of Tier 8 IMs] = 328 [Estimated Tier 8 IMs]
                                                                            $50,700,000 [Tot.Ann.CAT Costs]x 75% [IM% ofTot.Ann.CAT Costs]x1.50% [%of Tier 8 JM Recovery]) +
                                                                        (                                          328 [Estimated Tier 8 !Ms]
                                                                                 12 [Months per year]= $145

                                                                                   Calculation 1.9 (Calculation of a Tier 9 Industry Member Monthly Fee)
                                                                       1,631 [Estimated Tot. IMs] x 45% [%of Tier 9 IMs] = 735 [Estimated Tier 9 IMs]
                                                                            $50,700,000 [Tot.Ann.CAT Costs]x 75% [IM% ofTot.Ann.CAT Costs]xO.SO% [%of Tier 9 IM Recovery])        +
                                                                        (                                          735 [Est. Tier 9 !Ms]
                                                                                 12 [Months per year] = $22
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                                                  BILLING CODE 8011–01–C
                                                                                                                                                                                          EN01JN17.017</GPH>




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                                                                                              Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices                                                                                                 25461

                                                                                           CALCULATION OF ANNUAL TIER FEES FOR EQUITY EXECUTION VENUES (‘‘EV’’)
                                                                                                                                                                                                            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


                                                                                                                                                                                                                                                                 Estimated
                                                                                                                                                                                                                                                                  number
                                                                                                                                 Equity Execution Venue tier                                                                                                     of Equity
                                                                                                                                                                                                                                                                 Execution
                                                                                                                                                                                                                                                                  Venues

                                                  Tier 1 ....................................................................................................................................................................................................                13
                                                  Tier 2 ....................................................................................................................................................................................................                40

                                                         Total ..............................................................................................................................................................................................                53




                                                                                          CALCULATION OF ANNUAL TIER FEES FOR OPTIONS EXECUTION VENUES (‘‘EV’’)
                                                                                                                                                                                                            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


                                                                                                                                                                                                                                                                Estimated
                                                                                                                                                                                                                                                                 number
                                                                                                                             Options Execution Venue tier                                                                                                       of Options
                                                                                                                                                                                                                                                                Execution
                                                                                                                                                                                                                                                                 Venues

                                                  Tier 1 ..............................................................................................................................................................................................                      11
                                                  Tier 2 ..............................................................................................................................................................................................                       4
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                                                         Total ........................................................................................................................................................................................                      15
                                                                                                                                                                                                                                                                                  EN01JN17.018</GPH>




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                                                  25462                                     Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices




                                                                                                                                 TRACEABILITY OF TOTAL CAT FEES
                                                                                                                                                                                                         Estimated
                                                                                                                                                                              Industry                                           CAT fees paid
                                                                                                        Type                                                                                             number of                                          Total recovery
                                                                                                                                                                             Member tier                                           annually
                                                                                                                                                                                                         members

                                                  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
                                                                                                                                                                           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 50 ...........................................................................................        ........................   ........................   ........................           9,036



                                                  (F) Comparability of Fees                                                   model, the Operating Committee sought                                       aggregate fees that would be paid by
                                                    The funding principles require a                                          to take account of the affiliations                                         such firms.
                                                  funding model in which the fees                                             between or among CAT Reporters—that                                           While the proposed fees for Tier 1 and
                                                  charged to the CAT Reporters with the                                       is, where affiliated entities may have                                      Tier 2 Industry Members are relatively
                                                  most CAT-related activity (measured by                                      multiple Industry Member and/or                                             higher than those of Tier 1 and Tier 2
                                                  market share and/or message traffic, as                                     Execution Venue licenses, by                                                Execution Venues, Execution Venue
                                                  applicable) are generally comparable                                        maintaining relative comparability of                                       complex fees are relatively higher than
                                                  (where, for these comparability                                             fees among such affiliations with the                                       those of Industry Member complexes
                                                  purposes, the tiered fee structure takes                                    most expected CAT-related activity. To                                      largely due to affiliations between
                                                  into consideration affiliations between                                     do this, the Participants identified                                        Execution Venues. The tables set forth
                                                  or among CAT Reporters, whether                                             representative affiliations in the largest                                  below describe the largest Execution
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                                                  Execution Venue and/or Industry                                             tier of both Execution Venues and                                           Venue and Industry Member complexes
                                                  Members). Accordingly, in creating the                                      Industry Members and compared the                                           and their associated fees: 51



                                                    50 The amount in excess of the total CAT costs                              51 Note that the analysis of the complexes was                            between the 1631 Industry Members may not be
                                                  will contribute to the gradual accumulation of the                          performed on a best efforts basis, as all affiliations                      included.
                                                                                                                                                                                                                                                                             EN01JN17.019</GPH>




                                                  target operating reserve of $11.425 million.



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                                                                                     Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices                                                                                       25463

                                                                                                                     EXECUTION VENUE COMPLEXES
                                                                                                                                       Listing of Equity Execution                          Listing of options Execution                     Total fees by
                                                                        Execution Venue complex                                                Venue tiers                                           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                                                                                                 Listing of ATS tiers
                                                                                                                                                    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)



                                                  (G) Billing Onset                                             deems appropriate. The Operating                                            extent that the Operating Committee
                                                     Under Section 11.1(c) of the CAT                           Committee is authorized to review such                                      approves changes to the number of tiers
                                                  NMS Plan, to fund the development and                         fee schedule on a more regular basis, but                                   in the funding model or the fees
                                                  implementation of the CAT, the                                shall not make any changes on more                                          assigned to each tier, then Bats will file
                                                  Company shall time the imposition and                         than a semi-annual basis unless,                                            such changes with the SEC pursuant to
                                                  collection of all fees on Participants and                    pursuant to a Supermajority Vote, the                                       Section 19(b) of the Exchange Act, and
                                                  Industry Members in a manner                                  Operating Committee concludes that                                          any such changes will become effective
                                                  reasonably related to the timing when                         such change is necessary for the                                            in accordance with the requirements of
                                                  the Company expects to incur such                             adequate funding of the Company.’’                                          Section 19(b).
                                                  development and implementation costs.                         With such reviews, the Operating
                                                                                                                Committee will review the distribution                                      (I) Initial and Periodic Tier
                                                  The Company is currently incurring                                                                                                        Reassignments
                                                  such development and implementation                           of Industry Members and Execution
                                                  costs and will continue to do so prior                        Venues across tiers, and make any                                              The Operating Committee has
                                                  to the commencement of CAT reporting                          updates to the percentage of CAT                                            determined to calculate fee tiers every
                                                  and thereafter. For example, the Plan                         Reporters allocated to each tier as may                                     three months based on market share or
                                                  Processor has required up-front                               be necessary. In addition, the reviews                                      message traffic, as applicable, from the
                                                  payments to begin building the CAT. In                        will evaluate the estimated ongoing                                         prior three months. For the initial tier
                                                  addition, the Company continues to                            CAT costs and the level of the operating                                    assignments, the Company will
                                                  incur consultant and legal expenses on                        reserve. To the extent that the total CAT                                   calculate the relevant tier for each CAT
                                                  an on-going basis to implement the                            costs decrease, the fees would be                                           Reporter using the three months of data
                                                  CAT. Accordingly, the Operating                               adjusted downward, and, to the extent                                       prior to the commencement date. As
                                                  Committee determined that all CAT                             that the total CAT costs increase, the                                      with the initial tier assignment, for the
                                                  Reporters, including both Industry                            fees would be adjusted upward.52                                            tri-monthly reassignments, the
                                                  Members and Execution Venues                                  Furthermore, any surplus of the                                             Company will calculate the relevant tier
                                                  (including Participants), would begin to                      Company’s revenues over its expenses is                                     using the three months of data prior to
                                                  be invoiced as promptly as possible                           to be included within the operational                                       the relevant tri-monthly date. Bats notes
                                                  following the establishment of a billing                      reserve to offset future fees. The                                          that any movement of CAT Reporters
                                                  mechanism. Bats will issue a Regulatory                       limitations on more frequent changes to                                     between tiers will not change the
                                                  Circular to its members when the billing                      the fee, however, are intended to                                           criteria for each tier or the fee amount
                                                  mechanism is established, specifying                          provide budgeting certainty for the CAT                                     corresponding to each tier.
                                                                                                                Reporters and the Company.53 To the                                            In performing the tri-monthly
                                                  the date when such invoicing of
                                                  Industry Members will commence.                                                                                                           reassignments, Bats notes that the
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                                                                                                                  52 The CAT Fees are designed to recover the costs

                                                                                                                associated with the CAT. Accordingly, CAT Fees
                                                                                                                                                                                            percentage of CAT Reporters in each
                                                  (H) Changes to Fee Levels and Tiers                                                                                                       assigned tier is relative. Therefore, a
                                                                                                                would not be affected by increases or decreases in
                                                    Section 11.3(d) of the CAT NMS Plan                         other non-CAT expenses incurred by the SROs,                                CAT Reporter’s assigned tier will
                                                  states that ‘‘[t]he Operating Committee                       such as any changes in costs related to the                                 depend, not only on its own message
                                                                                                                retirement of existing regulatory systems, such as
                                                  shall review such fee schedule on at                          OATS.                                                                       traffic or market share, but it also will
                                                  least an annual basis and shall make any                        53 Section B.7, Appendix C of the CAT NMS Plan,                           depend on the message traffic/market
                                                  changes to such fee schedule that it                          Approval Order at 85006.                                                    share across all CAT Reporters. For


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                                                  25464                           Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices

                                                  example, the percentage of Industry                        that of other CAT Reporters in the                       market share. When market share is
                                                  Members (other than Execution Venue                        marketplace.                                             recalculated for Period B, the market
                                                  ATSs) in each tier is relative such that                     The following demonstrates a tier                      share of Execution Venue L increases,
                                                  such Industry Member’s assigned tier                       reassignment. In accordance with the                     and it is therefore subsequently
                                                  will depend on message traffic                             funding model, the top 75% of Options                    reranked and reassigned to Tier 1 in
                                                  generated across all CAT Reporters as                      Execution Venues in market share are                     Period B. Correspondingly, Options
                                                  well as the total number of CAT                            categorized as Tier 1 while the bottom                   Execution Venue K, initially a Tier 1
                                                  Reporters. The Operating Committee                         25% of Options Execution Venues in                       Options Execution Venue in Period A,
                                                  will inform CAT Reporters of their                         market share are categorized as Tier 2.                  is reassigned to Tier 2 in Period B due
                                                  assigned tier every three months                           In the sample scenario below, Options
                                                                                                                                                                      to decreases in its market share of share
                                                  following the periodic tiering process,                    Execution Venue L is initially
                                                                                                                                                                      volume.
                                                  as the funding model will compare an                       categorized as a Tier 2 Options
                                                  individual CAT Reporter’s activity to                      Execution Venue in Period A due to its

                                                                                        Period A                                                                                Period B

                                                                                                    Market share                                                                             Market share
                                                        Options Execution Venue                                            Tier                Options Execution Venue                                      Tier
                                                                                                       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
                                                  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
                                                  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                              system as defined in Rule 300(a) of                      (B) Fee Schedule
                                                    Bats proposes the Consolidated Audit                     Regulation ATS under the Securities                         Bats proposes to impose the CAT Fees
                                                  Trail Funding Fees to implement the                        Exchange Act of 1934, as amended, that                   applicable to its Industry Members
                                                  CAT Fees determined by the Operating                       operates pursuant to Rule 301 of                         through paragraph (b) of the proposed
                                                  Committee on SRO’s Industry Members.                       Regulation ATS. This is the same                         fee schedule. Paragraph (b)(1) of the
                                                  The proposed fee schedule has three                        definition of an ATS as set forth in                     proposed fee schedule sets forth the
                                                  sections, covering definitions, the fee                    Section 1.1 of the CAT NMS Plan in the                   CAT Fees applicable to Industry
                                                  schedule for CAT Fees, and the timing                      definition of an ‘‘Execution Venue.’’                    Members other than Equity ATSs.
                                                  and manner of payments. Each of these                      Then, paragraph (a)(4) defines an                        Specifically, paragraph (b)(1) states that
                                                  sections is discussed in detail below.                     ‘‘Equity ATS’’ as an ATS that executes                   the Company will assign each Industry
                                                                                                             transactions in NMS Stocks and/or OTC                    Member (other than an Equity ATS) to
                                                  (A) Definitions                                            Equity Securities.                                       a fee tier once every quarter, where such
                                                     Paragraph (a) of the proposed fee                          Paragraph (a)(3) of the proposed fee                  tier assignment is calculated by ranking
                                                  schedule sets forth the definitions for                    schedule defines the term ‘‘CAT Fee’’ to                 each Industry Member based on its total
                                                  the proposed fee schedule. Paragraph                       mean the Consolidated Audit Trail                        message traffic for the three months
                                                  (a)(1) states that, for purposes of the                    Funding Fee(s) to be paid by Industry                    prior to the quarterly tier calculation
                                                  Consolidated Audit Trail Funding Fees,                     Members as set forth in paragraph (b) in                 day and assigning each Industry
                                                  the terms ‘‘CAT NMS Plan,’’ ‘‘Industry                     the proposed fee schedule.                               Member to a tier based on that ranking
                                                  Member,’’ ‘‘NMS Stock,’’ ‘‘OTC Equity                                                                               and predefined Industry Member
                                                  Security’’, and ‘‘Participant’’ are defined                   Finally, Paragraph (a)(6) defines an                  percentages. The Industry Members
                                                  as set forth in Rule 4.5 (Consolidated                     ‘‘Execution Venue’’ as a Participant or                  with the highest total quarterly message
                                                  Audit Trail—Definitions).                                  an ATS (excluding any such ATS that                      traffic will be ranked in Tier 1, and the
                                                     The proposed fee schedule imposes                       does not execute orders). This definition                Industry Members with lowest quarterly
                                                  different fees on Equity ATSs and                          is the same substantive definition as set                message traffic will be ranked in Tier 9.
                                                  Industry Members that are not Equity                       forth in Section 1.1 of the CAT NMS                      Each quarter, each Industry Member
                                                  ATSs. Accordingly, the proposed fee                        Plan. Paragraph (a)(5) defines an                        (other than an Equity ATS) shall pay the
                                                  schedule defines the term ‘‘Equity                         ‘‘Equity Execution Venue’’ as an                         following CAT Fee corresponding to the
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                                                  ATS.’’ First, paragraph (a)(2) defines an                  Execution Venue that trades NMS                          tier assigned by the Company for such
                                                  ‘‘ATS’’ to mean an alternative trading                     Stocks and/or OTC Equity Securities.                     Industry Member for that quarter:




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                                                                                               Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices                                                                                        25465

                                                                                                                                                                                                                                        Percentage     Quarterly CAT
                                                                                                                                        Tier                                                                                            of Industry         fee
                                                                                                                                                                                                                                         Members

                                                  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                                         each Equity Execution Venue based on                                            be ranked in Tier 1, and the Equity
                                                  schedule sets forth the CAT Fees                                               its total market share of NMS Stocks and                                        Execution Venues with the lower
                                                  applicable to Equity ATSs.54 These are                                         OTC Equity Securities for the three                                             quarterly market share will be ranked in
                                                  the same fees that Participants that trade                                     months prior to the quarterly tier                                              Tier 2. Specifically, paragraph (b)(2)
                                                  NMS Stocks and/or OTC Equity                                                   calculation day and assigning each                                              states that, each quarter, each Equity
                                                  Securities will pay. Specifically,                                             Equity Execution Venue to a tier based                                          ATS shall pay the following CAT Fee
                                                  paragraph (b)(2) states that the Company                                       on that ranking and predefined Equity                                           corresponding to the tier assigned by the
                                                  will assign each Equity ATS to a fee tier                                      Execution Venue percentages. The                                                Company for such Equity ATS for that
                                                  once every quarter, where such tier                                            Equity Execution Venues with the                                                quarter:
                                                  assignment is calculated by ranking                                            higher total quarterly market share will

                                                                                                                                                                                                                                        Percentage
                                                                                                                                                                                                                                         of Equity     Quarterly CAT
                                                                                                                                        Tier                                                                                             Execution          fee
                                                                                                                                                                                                                                          Venues

                                                  1 ...............................................................................................................................................................................            25.00          $63,375
                                                  2 ...............................................................................................................................................................................            75.00           38,820



                                                  (C) Timing and Manner of Payment                                               not yet been established, all CAT fees                                          (i) The Prime Rate plus 300 basis points;
                                                                                                                                 will be billed and collected centrally                                          or (ii) the maximum rate permitted by
                                                    Section 11.4 of the CAT NMS Plan
                                                  states that the Operating Committee                                            through the Company, via the Plan                                               applicable law. Therefore, in accordance
                                                  shall establish a system for the                                               Processor or otherwise. Although each                                           with Section 11.4 of the CAT NMS Plan,
                                                  collection of fees authorized under the                                        Participant will adopt its own fee                                              Bats proposes to adopt paragraph (c)(2)
                                                  CAT NMS Plan. The Operating                                                    schedule regarding CAT Fees, no CAT                                             of the proposed fee schedule. Paragraph
                                                  Committee may include such collection                                          Fees or portion thereof will be collected                                       (c)(2) of the proposed fee schedule states
                                                  responsibility as a function of the Plan                                       by the individual Participants. Each                                            that each Industry Member shall pay
                                                  Processor or another administrator. To                                         Industry Member will receive from the                                           CAT Fees within thirty days after
                                                  implement the payment process to be                                            Company one invoice for its applicable                                          receipt of an invoice or other notice
                                                  adopted by the Operating Committee,                                            CAT fees, not separate invoices from                                            indicating payment is due (unless a
                                                  paragraph (c)(1) of the proposed fee                                           each Participant of which it is a                                               longer payment period is otherwise
                                                  schedule states that the Company will                                          member. The Industry Members will                                               indicated). If an Industry Member fails
                                                  provide each Industry Member with one                                          pay the CAT Fees to the Company via                                             to pay any such fee when due, such
                                                  invoice each quarter for its CAT Fees as                                       the centralized system for the collection                                       Industry Member shall pay interest on
                                                  determined pursuant to paragraph (b) of                                        of CAT fees established by the                                                  the outstanding balance from such due
                                                  the proposed fee schedule, regardless of                                       Company.55                                                                      date until such fee is paid at a per
                                                  whether the Industry Member is a                                                 Section 11.4 of the CAT NMS Plan                                              annum rate equal to the lesser of: (i) The
                                                  member of multiple self-regulatory                                             also states that Participants shall require                                     Prime Rate plus 300 basis points; or (ii)
                                                  organizations. Paragraph (c)(1) further                                        each Industry Member to pay all                                                 the maximum rate permitted by
                                                  states that each Industry Member will                                          applicable authorized CAT Fees within                                           applicable law.
                                                  pay its CAT Fees to the Company via                                            thirty days after receipt of an invoice or                                      2. Statutory Basis
                                                  the centralized system for the collection                                      other notice indicating payment is due
                                                  of CAT Fees established by the                                                 (unless a longer payment period is                                                 Bats believes that the proposed rule
                                                  Company in the manner prescribed by                                            otherwise indicated). Section 11.4                                              change is consistent with the provisions
                                                  the Company. Bats will provide                                                 further states that, if an Industry                                             of Section 6(b)(5) of the Act,56 which
                                                  Industry Members with details                                                  Member fails to pay any such fee when                                           require, among other things, that the
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                                                  regarding the manner of payment of                                             due, such Industry Member shall pay                                             SRO rules must be designed to prevent
                                                  CAT Fees by Regulatory Circular.                                               interest on the outstanding balance from                                        fraudulent and manipulative acts and
                                                    Although the exact fee collection                                            such due date until such fee is paid at                                         practices, to promote just and equitable
                                                  system and processes for CAT fees has                                          a per annum rate equal to the lesser of:                                        principles of trade, and, in general, to
                                                    54 Note that no fee schedule is provided for                                 currently exist due trading restrictions related to                                55 Section   11.4 of the CAT NMS Plan.
                                                  Execution Venue ATSs that execute transactions in                              Listed Options.                                                                    56 15   U.S.C. 78f(b)(5).
                                                  Listed Options, as no such Execution Venue ATSs



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                                                  25466                              Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices

                                                  protect investors and the public interest,                discriminatory. As discussed in detail                 regulatory obligations pursuant to the
                                                  and not designed to permit unfair                         above, the proposed tiered fees impose                 Plan. Similarly, all national securities
                                                  discrimination between customers,                         comparable fees on similarly situated                  exchanges and FINRA are proposing
                                                  issuers, brokers and dealers, and Section                 CAT Reporters. For example, those with                 this proposed fee schedule to
                                                  6(b)(4) of the Act,57 which requires that                 a larger impact on the CAT (measured                   implement the requirements of the CAT
                                                  SRO rules provide for the equitable                       via message traffic or market share) pay               NMS Plan. Therefore, this is not a
                                                  allocation of reasonable dues, fees, and                  higher fees, whereas CAT Reporters                     competitive fee filing and, therefore, it
                                                  other charges among members and                           with a smaller impact pay lower fees.                  does not raise competition issues
                                                  issuers and other persons using its                       Correspondingly, the tiered structure                  between and among the exchanges and
                                                  facilities. As discussed above, the SEC                   lessens the impact on smaller CAT                      FINRA.
                                                  approved the bifurcated, tiered, fixed                    Reporters by imposing smaller fees on                     Moreover, as previously described,
                                                  fee funding model in the CAT NMS                          those CAT Reporters with less market                   Bats believes that the proposed rule
                                                  Plan, finding it was reasonable and that                  share or message traffic. In addition, the             change fairly and equitably allocates
                                                  it equitably allocated fees among                         funding model takes into consideration                 costs among CAT Reporters. In
                                                  Participants and Industry Members. Bats                   affiliations between CAT Reporters,                    particular, the proposed fee schedule is
                                                  believes that the proposed tiered fees                    imposing comparable fees on such                       structured to impose comparable fees on
                                                  adopted pursuant to the funding model                     affiliated entities.                                   similarly situated CAT Reporters, and
                                                  approved by the SEC in the CAT NMS                           Moreover, Bats believes that the                    lessen the impact on smaller CAT
                                                  Plan are reasonable, equitably allocated                  division of the total CAT costs between                Reporters. CAT Reporters with similar
                                                  and not unfairly discriminatory.                          Industry Members and Execution                         levels of CAT activity will pay similar
                                                     Bats believes that this proposal is                    Venues, and the division of the                        fees. For example, Industry Members
                                                  consistent with the Act because it                        Execution Venue portion of total costs                 (other than Execution Venue ATSs) with
                                                  implements, interprets or clarifies the                   between Equity and Options Execution                   higher levels of message traffic will pay
                                                  provisions of the Plan, and is designed                   Venues, is reasonably designed to                      higher fees, and those with lower levels
                                                  to assist Bats and its Industry Members                   allocate CAT costs among CAT                           of message traffic will pay lower fees.
                                                  in meeting regulatory obligations                         Reporters. The 75/25 division between                  Similarly, Execution Venue ATSs and
                                                  pursuant to the Plan. In approving the                    Industry Members and Execution                         other Execution Venues with larger
                                                  Plan, the SEC noted that the Plan ‘‘is                    Venues maintains the greatest level of                 market share will pay higher fees, and
                                                  necessary and appropriate in the public                   comparability across the funding model,                those with lower levels of market share
                                                  interest, for the protection of investors                 keeping in view that comparability                     will pay lower fees. Therefore, given
                                                  and the maintenance of fair and orderly                   should consider affiliations among or                  that there is generally a relationship
                                                  markets, to remove impediments to, and                    between CAT Reporters (e.g., firms with                between message traffic and market
                                                  perfect the mechanism of a national                       multiple Industry Members or exchange                  share to the CAT Reporter’s size, smaller
                                                  market system, or is otherwise in                         licenses). Similarly, the 75/25 division               CAT Reporters generally pay less than
                                                  furtherance of the purposes of the                        between Equity and Options Execution
                                                                                                                                                                   larger CAT Reporters. Accordingly, Bats
                                                  Act.’’ 58 To the extent that this proposal                Venues maintains elasticity across the
                                                                                                                                                                   does not believe that the CAT Fees
                                                  implements, interprets or clarifies the                   funding model as well as the greatest
                                                                                                                                                                   would have a disproportionate effect on
                                                  Plan and applies specific requirements                    level of fee equitability and
                                                                                                                                                                   smaller or larger CAT Reporters. In
                                                  to Industry Members, Bats believes that                   comparability based on the current
                                                                                                                                                                   addition, ATSs and exchanges will pay
                                                  this proposal furthers the objectives of                  number of Equity and Options
                                                                                                                                                                   the same fees based on market share.
                                                  the Plan, as identified by the SEC, and                   Execution Venues.
                                                                                                               Finally, Bats believes that the                     Therefore, Bats does not believe that the
                                                  is therefore consistent with the Act.
                                                     Bats believes that the proposed tiered                 proposed fees are reasonable because                   fees will impose any burden on the
                                                  fees are reasonable. First, the total CAT                 they would provide ease of calculation,                competition between ATSs and
                                                  Fees to be collected would be directly                    ease of billing and other administrative               exchanges. Accordingly, Bats believes
                                                  associated with the costs of establishing                 functions, and predictability of a fixed               that the proposed fees will minimize the
                                                  and maintaining the CAT, where such                       fee. Such factors are crucial to                       potential for adverse effects on
                                                  costs include Plan Processor costs and                    estimating a reliable revenue stream for               competition between CAT Reporters in
                                                  costs related to insurance, third party                   the Company and for permitting CAT                     the market.
                                                  services and the operational reserve.                     Reporters to reasonably predict their                     Furthermore, the tiered, fixed fee
                                                  The CAT Fees would not cover                              payment obligations for budgeting                      funding model limits the disincentives
                                                  Participant services unrelated to the                     purposes.                                              to providing liquidity to the market.
                                                  CAT. In addition, any surplus CAT Fees                                                                           Therefore, the proposed fees are
                                                                                                            (B) Self-Regulatory Organization’s                     structured to limit burdens on
                                                  cannot be distributed to the individual
                                                                                                            Statement on Burden on Competition                     competitive quoting and other liquidity
                                                  Participants; such surpluses must be
                                                  used as a reserve to offset future fees.                     Section 6(b)(8) of the Act 59 require               provision in the market.
                                                  Given the direct relationship between                     that SRO rules not impose any burden                   (C) Self-Regulatory Organization’s
                                                  the fees and the CAT costs, Bats believes                 on competition that is not necessary or                Statement on Comments on the
                                                  that the total level of the CAT Fees is                   appropriate. Bats does not believe that                Proposed Rule Change Received From
                                                  reasonable.                                               the proposed rule change will result in                Members, Participants or Others
                                                     In addition, Bats believes that the                    any burden on competition that is not
                                                  proposed CAT Fees are reasonably                          necessary or appropriate in furtherance                  Written comments were neither
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                                                  designed to allocate the total costs of the               of the purposes of the Act. Bats notes                 solicited nor received.
                                                  CAT equitably between and among the                       that the proposed rule change                          III. Date of Effectiveness of the
                                                  Participants and Industry Members, and                    implements provisions of the CAT NMS                   Proposed Rule Change and Timing for
                                                  are therefore not unfairly                                Plan approved by the Commission, and                   Commission Action
                                                                                                            is designed to assist Bats in meeting its
                                                    57 15   U.S.C. 78f(b)(4).                                                                                         The foregoing rule change has become
                                                    58 Approval    Order at 84697.                           59 15   U.S.C. 78f(b)(8).                             effective pursuant to Section 19(b)(3)(A)


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                                                                                    Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices                                                      25467

                                                  of the Act 60 and paragraph (f) of Rule                    submissions. You should submit only                    APPLICANTS:    PIMCO Equity Series (the
                                                  19b–4 thereunder.61 At any time within                     information that you wish to make                      ‘‘Trust’’), a Delaware statutory trust that
                                                  60 days of the filing of the proposed rule                 available publicly. All submissions                    is registered under the Act as an open-
                                                  change, the Commission summarily may                       should refer to File Number SR–                        end management investment company
                                                  temporarily suspend such rule change if                    BatsEDGA–2017–13 and should be                         with multiple series, Pacific Investment
                                                  it appears to the Commission that such                     submitted on or before June 22, 2017.                  Management Company LLC (the ‘‘Initial
                                                  action is necessary or appropriate in the                    For the Commission, by the Division of               Adviser’’), a Delaware limited liability
                                                  public interest, for the protection of                     Trading and Markets, pursuant to delegated             company registered as an investment
                                                  investors, or otherwise in furtherance of                  authority.62                                           adviser under the Investment Advisers
                                                  the purposes of the Act.                                   Eduardo A. Aleman,                                     Act of 1940, and PIMCO Investments
                                                                                                             Assistant Secretary.                                   LLC (the ‘‘Distributor’’), a Delaware
                                                  IV. Solicitation of Comments                                                                                      limited liability company and broker-
                                                                                                             [FR Doc. 2017–11360 Filed 5–31–17; 8:45 am]
                                                    Interested persons are invited to                                                                               dealer registered under the Securities
                                                                                                             BILLING CODE 8011–01–P
                                                  submit written data, views and                                                                                    Exchange Act of 1934 (‘‘Exchange
                                                  arguments concerning the foregoing,                                                                               Act’’).1
                                                  including whether the proposal is                          SECURITIES AND EXCHANGE                                FILING DATES: The application was filed
                                                  consistent with the Act. Comments may                      COMMISSION                                             on November 18, 2016 and amended on
                                                  be submitted by any of the following                                                                              March 13, 2017, May 2, 2017 and May
                                                  methods:                                                   [Investment Company Act Release No.                    25, 2017.
                                                                                                             32661; 812–14715]
                                                  Electronic Comments                                                                                               HEARING OR NOTIFICATION OF HEARING: An
                                                                                                             PIMCO Equity Series, et al.                            order granting the requested relief will
                                                    • Use the Commission’s Internet                                                                                 be issued unless the Commission orders
                                                  comment form (http://www.sec.gov/                          May 25, 2017.                                          a hearing. Interested persons may
                                                  rules/sro.shtml); or                                       AGENCY: Securities and Exchange                        request a hearing by writing to the
                                                    • Send an email to rule-comments@                        Commission (‘‘Commission’’).                           Commission’s Secretary and serving
                                                  sec.gov. Please include File Number SR–                    ACTION: Notice.                                        applicants with a copy of the request,
                                                  BatsEDGA–2017–13 on the subject line.                                                                             personally or by mail. Hearing requests
                                                                                                                Notice of an application for an order               should be received by the Commission
                                                  Paper Comments
                                                                                                             under section 6(c) of the Investment                   by 5:30 p.m. on June 19, 2017, and
                                                     • Send paper comments in triplicate                     Company Act of 1940 (the ‘‘Act’’) for an
                                                  to Secretary, Securities and Exchange                                                                             should be accompanied by proof of
                                                                                                             exemption from sections 2(a)(32),                      service on applicants, in the form of an
                                                  Commission, 100 F Street NE.,                              5(a)(1), 22(d), and 22(e) of the Act and               affidavit, or for lawyers, a certificate of
                                                  Washington, DC 20549–1090.                                 rule 22c–1 under the Act, under
                                                  All submissions should refer to File                                                                              service. Pursuant to rule 0–5 under the
                                                                                                             sections 6(c) and 17(b) of the Act for an              Act, hearing requests should state the
                                                  Number SR–BatsEDGA–2017–13. This                           exemption from sections 17(a)(1) and
                                                  file number should be included on the                                                                             nature of the writer’s interest, any facts
                                                                                                             17(a)(2) of the Act, and under section                 bearing upon the desirability of a
                                                  subject line if email is used. To help the                 12(d)(1)(J) for an exemption from
                                                  Commission process and review your                                                                                hearing on the matter, the reason for the
                                                                                                             sections 12(d)(1)(A) and 12(d)(1)(B) of                request, and the issues contested.
                                                  comments more efficiently, please use                      the Act. The requested order would                     Persons who wish to be notified of a
                                                  only one method. The Commission will                       permit (a) index-based series of certain               hearing may request notification by
                                                  post all comments on the Commission’s                      open-end management investment                         writing to the Commission’s Secretary.
                                                  Internet Web site (http://www.sec.gov/                     companies (‘‘Funds’’) to issue shares
                                                  rules/sro.shtml). Copies of the                                                                                   ADDRESSES: Secretary, Securities and
                                                                                                             redeemable in large aggregations
                                                  submission, all subsequent                                 (‘‘Creation Units’’); (b) secondary market             Exchange Commission, 100 F Street NE.,
                                                  amendments, all written statements                         transactions in Fund shares to occur at                Washington, DC 20549–1090;
                                                  with respect to the proposed rule                          negotiated market prices rather than at                Applicants: Joshua D. Ratner, Esq.,
                                                  change that are filed with the                             net asset value (‘‘NAV’’); (c) certain                 Pacific Investment Management
                                                  Commission, and all written                                Funds to pay redemption proceeds,                      Company LLC, 650 Newport Center
                                                  communications relating to the                             under certain circumstances, more than                 Drive, Newport Beach, CA 92660 and
                                                  proposed rule change between the                           seven days after the tender of shares for              Douglas P. Dick, Esq., Dechert LLP, 1900
                                                  Commission and any person, other than                      redemption; (d) certain affiliated                     K Street NW., Washington, DC 20006.
                                                  those that may be withheld from the                        persons of a Fund to deposit securities                FOR FURTHER INFORMATION CONTACT:
                                                  public in accordance with the                              into, and receive securities from, the                 Barbara T. Heussler, Senior Counsel, at
                                                  provisions of 5 U.S.C. 552, will be                        Fund in connection with the purchase                   (202) 551–6990, or Robert H. Shapiro,
                                                  available for Web site viewing and                         and redemption of Creation Units; (e)                  Branch Chief, at (202) 551–6821
                                                  printing in the Commission’s Public                        certain registered management                          (Division of Investment Management,
                                                  Reference Room, 100 F Street NE.,                          investment companies and unit                          Chief Counsel’s Office).
                                                  Washington, DC 20549, on official                          investment trusts outside of the same                  SUPPLEMENTARY INFORMATION: The
                                                  business days between the hours of                         group of investment companies as the                   following is a summary of the
                                                  10:00 a.m. and 3:00 p.m. Copies of such                    Funds (‘‘Funds of Funds’’) to acquire                  application. The complete application
                                                  filing will also be available for                          shares of the Funds; (f) certain Funds
                                                                                                                                                                      1 The Initial Adviser has previously received
                                                  inspection and copying at the principal                    (‘‘Feeder Funds’’) to create and redeem
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                                                                                                                                                                    exemptive relief from the Commission permitting it
                                                  office of the Exchange. All comments                       Creation Units in-kind in a master-                    to operate ETFs (defined below) that track fixed
                                                  received will be posted without change;                    feeder structure; and (g) certain Funds                income securities indexes created by an unaffiliated
                                                  the Commission does not edit personal                      to issue shares in less than Creation                  index provider. See Pacific Investment Management
                                                                                                             Unit size to investors participating in a              Company LLC, et al., Investment Company Act
                                                  identifying information from                                                                                      Release Nos. 28723 (May 11, 2009) (notice) and
                                                                                                             distribution reinvestment program.                     28752 (Jun. 1, 2009) (order) (‘‘Existing Relief’’). No
                                                    60 15   U.S.C. 78s(b)(3)(A).                                                                                    Fund relying on the requested order will rely on the
                                                    61 17   CFR 240.19b–4(f).                                  62 17   CFR 200.30–3(a)(12).                         Existing Relief.



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Document Created: 2017-06-01 03:04:51
Document Modified: 2017-06-01 03:04:51
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation82 FR 25448 

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