82 FR 58971 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment No. 1 to a Proposed Rule Change Amending the Consolidated Audit Trail Funding Fees
SECURITIES AND EXCHANGE COMMISSION Federal Register Volume 82, Issue 239 (December 14, 2017)
Federal Register Volume 82, Issue 239 (December 14, 2017)
| Page Range | 58971-58996 | |
| FR Document | 2017-27024 |
[Federal Register Volume 82, Number 239 (Thursday, December 14, 2017)] [Notices] [Pages 58971-58996] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-27024] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-82264; File No. SR-NYSEARCA-2017-52] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment No. 1 to a Proposed Rule Change Amending the Consolidated Audit Trail Funding Fees December 11, 2017. On May 10, 2017, NYSE Arca, Inc. (``Exchange'' or ``SRO'') filed with the Securities and Exchange Commission (``Commission''), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to adopt a fee schedule to establish the fees for Industry Members related to the National Market System Plan Governing the Consolidated Audit Trail (``CAT NMS Plan''). The proposed rule change was published in the Federal Register for comment on May 22, 2017.\3\ The Commission received seven comment letters on the proposed rule change,\4\ and a response to comments from the Participants.\5\ On June 30, 2017, the Commission temporarily suspended and initiated proceedings to determine whether to approve or disapprove the proposed rule change.\6\ The Commission thereafter received seven comment letters,\7\ and a response to comments from the Participants.\8\ On October 25, 2017, the Exchange filed Amendment No. 1 to the proposed rule change, as described in Items I and II below, which Items have been prepared by the Exchange.\9\ On November 9, 2017, the Commission extended the time period within which to approve the proposed rule change or disapprove the proposed rule change to January 14, 2018.\10\ The Commission is publishing this notice to solicit comments from interested persons on Amendment No. 1.\11\ --------------------------------------------------------------------------- \1\ 15 U.S.C. 78s(b)(1). \2\ 17 CFR 240.19b-4. \3\ See Securities Exchange Act Release No. 80698 (May 16, 2017), 82 FR 23457 (May 22, 2017) (``Original Proposal''). \4\ Since the CAT NMS Plan Participants' proposed rule changes to adopt fees to be charged to Industry Members to fund the consolidated audit trail are substantively identical, the Commission is considering all comments received on the proposed rule changes regardless of the comment file to which they were submitted. See text accompanying notes 13-16 infra, for a list of the CAT NMS Plan Participants. See Letter from Theodore R. Lazo, Managing Director and Associate General Counsel, Securities Industry and Financial Markets Association, to Brent J. Fields, Secretary, Commission (dated June 6, 2017), available at: https://www.sec.gov/comments/sr-batsbzx-2017-38/batsbzx201738-1788188-153228.pdf; Letter from Patricia L. Cerny and Steven O'Malley, Compliance Consultants, to Brent J. Fields, Secretary, Commission (dated June 12, 2017), available at: https://www.sec.gov/comments/sr-cboe-2017-040/cboe2017040-1799253-153675.pdf; Letter from Daniel Zinn, General Counsel, OTC Markets Group Inc., to Eduardo A. Aleman, Assistant Secretary, Commission (dated June 13, 2017), available at: https://www.sec.gov/comments/sr-finra-2017-011/finra2017011-1801717-153703.pdf; Letter from Joanna Mallers, Secretary, FIA Principal Traders Group, to Brent J. Fields, Secretary, Commission (dated June 22, 2017), available at: https://www.sec.gov/comments/sr-cboe-2017-040/cboe2017040-1819670-154195.pdf; Letter from Stuart J. Kaswell, Executive Vice President and Managing Director, General Counsel, Managed Funds Association, to Brent J. Fields, Secretary, Commission (dated June 23, 2017), available at: https://www.sec.gov/comments/sr-finra-2017-011/finra2017011-1822454-154283.pdf; and Letter from Suzanne H. Shatto, Investor, to Commission (dated June 27, 2017), available at: https://www.sec.gov/comments/sr-batsedgx-2017-22/batsedgx201722-154443.pdf. The Commission also received a comment letter which is not pertinent to these proposed rule changes. See Letter from Christina Crouch, Smart Ltd., to Brent J. Fields, Secretary, Commission (dated June 5, 2017), available at: https://www.sec.gov/comments/sr-batsbzx-2017-38/batsbzx201738-1785545-153152.htm. \5\ See Letter from CAT NMS Plan Participants to Brent J. Fields, Secretary, Commission (dated June 29, 2017), available at: https://www.sec.gov/comments/sr-batsbyx-2017-11/batsbyx201711-1832632-154584.pdf. \6\ See Securities Exchange Act Release No. 81067 (June 30, 2017), 82 FR 31656 (July 7, 2017). \7\ See Letter from W. Hardy Callcott, Partner, Sidley Austin LLP, to Brent J. Fields, Secretary, Commission (dated July 27, 2017), available at: https://www.sec.gov/comments/sr-batsbyx-2017-11/batsbyx201711-2148338-157737.pdf; Letter from Kevin Coleman, General Counsel and Chief Compliance Officer, Belvedere Trading LLC, to Brent J. Fields, Secretary, Commission (dated July 28, 2017), available at: https://www.sec.gov/comments/sr-batsbyx-2017-11/batsbyx201711-2148360-157740.pdf; Letter from Joanna Mallers, Secretary, FIA Principal Traders Group, to Brent J. Fields, Secretary, Commission (dated July 28, 2017), available at: https://www.sec.gov/comments/sr-batsbyx-2017-11/batsbyx201711-2151228-157745.pdf; Letter from Theodore R. Lazo, Managing Director and Associate General Counsel, SIFMA, to Brent J. Fields, Secretary, Commission (dated July 28, 2017), available at: https://www.sec.gov/comments/sr-batsbyx-2017-11/batsbyx201711-2150977-157744.pdf; Letter from Stuart J. Kaswell, Executive Vice President and Managing Director, General Counsel, Managed Funds Association, to Brent J. Fields, Secretary, Commission (dated July 28, 2017), available at: https://www.sec.gov/comments/sr-batsbyx-2017-11/batsbyx201711-2150818-157743.pdf; Letter from John Kinahan, Chief Executive Officer, Group One Trading, L.P., to Brent J. Fields, Secretary, Commission (dated August 10, 2017), available at: https://www.sec.gov/comments/sr-finra-2017-011/finra2017011-2214568-160619.pdf; Letter from Joseph Molluso, Executive Vice President and CFO, Virtu Financial, to Brent J. Fields, Commission (dated August 18, 2017), available at: https://www.sec.gov/comments/sr-finra-2017-011/finra2017011-2238648-160830.pdf. \8\ See Letter from Michael Simon, Chair, CAT NMS Plan Operating Committee, to Brent J. Fields, Commission, Secretary (dated November 2, 2017), available at: https://www.sec.gov/comments/sr-batsbyx-2017-11/batsbyx201711-2674608-161412.pdf. \9\ Amendment No. 1 to the proposed rule change replaces and supersedes the Original Proposal in its entirety. \10\ See Securities Exchange Act Release No. 82049 (November 9, 2017), 82 FR 53549 (November 16, 2017). \11\ The Commission notes that on November 29, 2017, the Exchange filed Amendment No. 2 to the proposed rule change. Amendment No. 2 is a partial amendment to the proposed rule change, as amended by Amendment No. 1. Amendment No. 2 proposes to change the parenthetical regarding the OTC Equity Securities discount in paragraph (b)(2) of the proposed fee schedule from ``with a discount for Equity ATSs exclusively trading OTC Equity Securities based on the average shares per trade ratio between NMS Stocks and OTC Equity Securities'' to ``with a discount for OTC Equity Securities market share of Equity ATSs trading OTC Equity Securities based on the average shares per trade ratio between NMS Stocks and OTC Equity Securities.'' Amendment No. 2 also deletes footnote 45 in Section 3(a) on page 23 of the First Amendment which reads, ``The discount is only applied to the market share of Execution Venue ATSs exclusively trading OTC Equity Securities. Accordingly, FINRA's market share, which includes market share from the OTC Reporting Facility, is not discounted as a result of its OTC Equity Securities activity,'' as the footnote is erroneous and was included inadvertently. See Securities Exchange Act Release No. 82265 (December 11, 2017). --------------------------------------------------------------------------- I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend the NYSE Arca Equities Fees and Charges (``Arca Fee Schedule''), and the NYSE Arca Options Fees and Charges (``Arca Options Fee Schedule''), to adopt the fees for Industry Members related to the National Market System Plan Governing the Consolidated Audit Trail (the ``CAT NMS Plan'' or ``Plan'').\12\ The Exchange files this proposed rule change (the ``Amendment'') to amend the Original Proposal. This Amendment replaces the Original Proposal in its entirety, and also describes the changes from the Original Proposal. The proposed rule change is available on the Exchange's website at www.nyse.com, at the principal office of the Exchange, and at the Commission's Public Reference Room. --------------------------------------------------------------------------- \12\ Unless otherwise specified, capitalized terms used in this rule filing are defined as set forth herein, the CAT Compliance Rule Series or in the CAT NMS Plan. --------------------------------------------------------------------------- [[Page 58972]] 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 self-regulatory organization 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 those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change 1. Purpose BOX Options Exchange LLC, Cboe BYX Exchange, Inc., Cboe BZX Exchange, Inc., Cboe EDGA Exchange, Inc., Cboe EDGX Exchange, Inc., Cboe C2 Exchange, Inc., Cboe Exchange, Inc.,\13\ 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,\14\ NASDAQ PHLX LLC, The NASDAQ Stock Market LLC, New York Stock Exchange LLC, NYSE American LLC,\15\ NYSE Arca, Inc. and NYSE National, Inc.\16\ (collectively, the ``Participants'') filed with the Commission, pursuant to Section 11A of the Exchange Act \17\ and Rule 608 of Regulation NMS thereunder,\18\ the CAT NMS Plan.\19\ 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,\20\ and approved by the Commission, as modified, on November 15, 2016.\21\ 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.\22\ 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'').\23\ 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.\24\ Accordingly, the Exchange submitted the Original Proposal to amend the Arca Fee Schedule and the Arca Options Fee Schedule to adopt the Consolidated Audit Trail Funding Fees, which would require Industry Members that are Exchange members to pay the CAT Fees determined by the Operating Committee. --------------------------------------------------------------------------- \13\ Note that Bats BYX Exchange, Inc., Bats BZX Exchange, Inc., Bats EDGA Exchange, Inc., Bats EDGX Exchange, Inc., LLC, C2 Options Exchange, Incorporated, and Chicago Board Options Exchange, Incorporated, have been renamed Cboe BYX Exchange, Inc., Cboe BZX Exchange, Inc., Cboe EDGA Exchange, Inc., Cboe EDGX Exchange, Inc., Cboe C2 Exchange, Inc., Cboe Exchange, Inc., respectively. \14\ 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). \15\ NYSE MKT LLC has been renamed NYSE American LLC. See Securities Exchange Act Rel. No. 80283 (Mar. 21, 2017), 82 FR 15244 (Mar. 27, 2017). \16\ 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). \17\ 15 U.S.C. 78k-1. \18\ 17 CFR 242.608. \19\ 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. \20\ Securities Exchange Act Rel. No. 77724 (Apr. 27, 2016), 81 FR 30614 (May 17, 2016). \21\ Securities Exchange Act Rel. No. 79318 (Nov. 15, 2016), 81 FR 84696 (Nov. 23, 2016) (``Approval Order''). \22\ The Plan also serves as the limited liability company agreement for the Company. \23\ Section 11.1(b) of the CAT NMS Plan. \24\ Id. --------------------------------------------------------------------------- The Commission published the Original Proposal for public comment in the Federal Register on May 22, 2017,\25\ and received comments in response to the Original Proposal or similar fee filings by other Participants.\26\ On June 30, 2017, the Commission suspended, and instituted proceedings to determine whether to approve or disapprove, the Original Proposal.\27\ The Commission received seven comment letters in response to those proceedings.\28\ --------------------------------------------------------------------------- \25\ Securities Exchange Act Rel. No. 80698 (May 16, 2017), 82 FR 23457 (May 22, 2017) (SR-NYSEArca-2017-52). \26\ For a summary of comments, see generally Securities Exchange Act Rel. No. 81067 (June 30, 2017), 82 FR 31656 (July 7, 2017) (``Suspension Order''). \27\ Suspension Order. \28\ See Letter from Stuart J. Kaswell, Executive Vice President, Managing Director and General Counsel, Managed Funds Association, to Brent J. Fields, Secretary, SEC (July 28, 2017) (``MFA Letter''); Letter from Theodore R. Lazo, Managing Director and Associate General Counsel, SIFMA, to Brent J. Fields, Secretary, SEC (July 28, 2017) (``SIFMA Letter''); Joanna Mallers, Secretary, FIA Principal Traders Group, to Brent J. Fields, Secretary, SEC (July 28, 2017) (``FIA Principal Traders Group Letter''); Letter from Kevin Coleman, General Counsel & Chief Compliance Officer, Belvedere Trading LLC, to Brent J. Fields, Secretary, SEC (July 28, 2017) (``Belvedere Letter''); Letter from W. Hardy Callcott, Sidley Austin LLP, to Brent J. Fields, Secretary, SEC (July 27, 2017) (``Sidley Letter''); Letter from John Kinahan, Chief Executive Officer, Group One Trading, L.P., to Brent J. Fields, Secretary, SEC (Aug. 10, 2017) (``Group One Letter''); and Letter from Joseph Molluso, Executive Vice President, Virtu Financial, to Brent J. Fields, Secretary, SEC (Aug. 18, 2017) (``Virtu Financial Letter''). --------------------------------------------------------------------------- In response to the comments on the Original Proposal, the Operating Committee determined to make the following changes to the funding model: (1) Add two additional CAT Fee tiers for Equity Execution Venues; (2) discount the market share of Execution Venue ATSs exclusively trading OTC Equity Securities as well as the market share of the FINRA over-the-counter reporting facility (``ORF'') by the average shares per trade ratio between NMS Stocks and OTC Equity Securities (calculated as 0.17% based on available data from the second quarter of June 2017) when calculating the market share of Execution Venue ATS exclusively trading OTC Equity Securities and FINRA; (3) discount the Options Market Maker quotes by the trade to quote ratio for options (calculated as 0.01% based on available data for June 2016 through June 2017) when calculating message traffic for Options Market Makers; (4) discount equity market maker quotes by the trade to quote ratio for equities (calculated as 5.43% based on available data for June 2016 through June 2017) when calculating message traffic for equity market makers; (5) decrease the number of tiers for Industry Members (other than the Execution Venue ATSs) from nine to seven; (6) change the allocation of CAT costs between Equity Execution Venues and Options Execution Venues from 75%/25% to 67%/33%; (7) adjust tier percentages and recovery allocations for Equity Execution Venues, Options Execution Venues and Industry Members (other than Execution Venue ATSs); (8) focus [[Page 58973]] the comparability of CAT Fees on the individual entity level, rather than primarily on the comparability of affiliated entities; (9) commence invoicing of CAT Reporters as promptly as possible following the latest of the operative date of the Consolidated Audit Trail Funding Fees for each of the Participants and the operative date of the CAT NMS Plan amendment adopting CAT Fees for Participants; and (10) require the proposed fees to automatically expire two years from the operative date of the CAT NMS Plan amendment adopting CAT Fees for Participants. As discussed in detail below, the Exchange proposes to amend the Original Proposal to reflect these changes. (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, as amended by this Amendment. A detailed description of the CAT funding model and the CAT Fees, as amended by this Amendment, as well as the changes made to the Original Proposal follows this executive summary. (A) CAT Funding ModelCAT Costs. The CAT funding model is designed to establish CAT-specific fees to collectively recover the costs of building and operating the CAT from all CAT Reporters, including Industry Members and Participants. The overall CAT costs for the calculation of the CAT Fees in this fee filing are comprised of Plan Processor CAT costs and non-Plan Processor CAT costs incurred, and estimated to be incurred, from November 21, 2016 through November 21, 2017. (See Section 3(a)(2)(E) below) 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) below) Industry Member Fees. Each Industry Member (other than Execution Venue ATSs) will be placed into one of seven 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, quotes and executions 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. To avoid disincentives to quoting behavior, Options Market Maker and equity market maker quotes will be discounted when calculating message traffic. (See Section 3(a)(2)(B) below) Execution Venue Fees. Each Equity Execution Venue will be placed in one of four 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. For purposes of calculating market share, the market share of Execution Venue ATSs exclusively trading OTC Equity Securities as well as the market share of the FINRA ORF will be discounted. 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) 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 67 percent of Execution Venue costs recovered to Equity Execution Venues and 33 percent to Options Execution Venues. (See Section 3(a)(2)(D) below) Comparability of Fees. The CAT funding model charges CAT Reporters with the most CAT-related activity (measured by market share and/or message traffic, as applicable) comparable CAT Fees. (See Section 3(a)(2)(F) 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) 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) 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. Each Industry Member 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) below) Billing Commencement. Industry Members will begin to receive invoices for CAT Fees as promptly as possible following the latest of the operative date of the Consolidated Audit Trail Funding Fees for each of the Participants and the operative date of the Plan amendment adopting CAT Fees for Participants. (See Section 3(a)(2)(G) below) Sunset Provision. The Consolidated Audit Trail Funding Fees will sunset automatically two years from the operative date of the CAT NMS Plan amendment adopting CAT Fees for Participants. (See Section 3(a)(2)(J) 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. In addition to a budget, Article XI of the CAT NMS Plan provides that the Operating Committee has discretion to establish funding for the Company, consistent with 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 [[Page 58974]] 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'' \29\ and ``reflects a reasonable exercise of the Participants' funding authority to recover the Participants' costs related to the CAT.'' \30\ --------------------------------------------------------------------------- \29\ Approval Order at 84796. \30\ Id. at 84794. --------------------------------------------------------------------------- More specifically, the Commission stated in approving the CAT NMS Plan that ``[t]he Commission believes that the proposed funding model is reasonably designed to allocate the costs of the CAT between the Participants and Industry Members.'' \31\ The Commission further noted the following: --------------------------------------------------------------------------- \31\ 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.\32\ --------------------------------------------------------------------------- \32\ Id. at 84794. --------------------------------------------------------------------------- Accordingly, the funding model approved by the Operating Committee imposes fees on both Participants and Industry Members. As discussed in Appendix C of the CAT NMS Plan, in developing and approving the approved funding model, the Operating Committee considered the advantages and disadvantages of a variety of alternative funding and cost allocation models before selecting the proposed model.\33\ 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. --------------------------------------------------------------------------- \33\ Section B.7, Appendix C of the CAT NMS Plan, Approval Order at 85006. --------------------------------------------------------------------------- In particular, 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. 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. In addition, reviews from varying time periods 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.\34\ In addition, in choosing a tiered fee structure, the Operating Committee concluded that the variety of benefits offered by a tiered fee structure, discussed above, outweighed the fact that CAT Reporters in any particular tier would pay different rates per message traffic order event or per market share (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.\35\ The Operating Committee 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 message traffic which will reflect the relative impact of CAT Reporters on the CAT System. --------------------------------------------------------------------------- \34\ Section B.7, Appendix C of the CAT NMS Plan, Approval Order at 85006. \35\ 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 may be easier to implement.'' Approval Order at 84796. --------------------------------------------------------------------------- Accordingly, the CAT NMS Plan contemplates that costs will be allocated across the CAT Reporters on a tiered basis in order to allocate higher costs to those CAT Reporters that contribute more to the costs of creating, implementing and maintaining the CAT and lower costs to those that contribute less.\36\ 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 will be charged a higher fee. Industry Members with lower levels of message traffic will be in lower tiers and will be assessed a lower fee for the CAT.\37\ Correspondingly, Execution Venues with the highest market shares will be in the top tier, and will be charged higher fees. Execution Venues with the lowest market shares will be in the lowest tier and will be assessed lower fees for the CAT.\38\ --------------------------------------------------------------------------- \36\ Approval Order at 85005. \37\ Id. \38\ Id. --------------------------------------------------------------------------- The CAT NMS Plan states that Industry Members (other than Execution Venue ATSs) will be charged based on message traffic, and that Execution Venues will be charged based on market share.\39\ 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.\40\ 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.\41\ --------------------------------------------------------------------------- \39\ Section 11.3(a) and (b) of the CAT NMS Plan. \40\ Section B.7, Appendix C of the CAT NMS Plan, Approval Order at 85005. \41\ Section 11.3(b) of the CAT NMS Plan. --------------------------------------------------------------------------- In contrast to Industry Members, which determine the degree to which they produce message traffic that constitute CAT Reportable Events, the CAT Reportable Events of the Execution Venues are largely derivative of quotations and orders received from Industry Members that they are required to display. The business model for Execution Venues (other than FINRA), however, is focused on executions on their markets. As a result, the Operating Committee believes that it is more equitable to charge Execution Venues based on their market share rather than their message traffic. Focusing on message traffic would make it more difficult to draw distinctions between large and small Execution Venues and, in particular, between large and small options exchanges. For instance, the Operating Committee analyzed the message traffic of Execution Venues and Industry Members for the period of April 2017 to June 2017 and placed all CAT Reporters into a nine-tier framework (i.e., a single tier may include both Execution Venues and Industry Members). The Operating Committee's analysis found that the majority of exchanges (15 total) were [[Page 58975]] grouped in Tiers 1 and 2. Moreover, virtually all of the options exchanges were in Tiers 1 and 2.\42\ Given the resulting concentration of options exchanges in Tiers 1 and 2 under this approach, the analysis shows that a funding model for Execution Venues based on message traffic would make it more difficult to distinguish between large and small options exchanges, as compared to the proposed fee approach that bases fees for Execution Venues on market share. --------------------------------------------------------------------------- \42\ The Operating Committee notes that this analysis did not place MIAX PEARL in Tier 1 or Tier 2 since the exchange commenced trading on February 6, 2017. --------------------------------------------------------------------------- The CAT NMS Plan's funding model also is structured to avoid a ``reduction in market quality.'' \43\ The tiered, fixed fee funding model is designed to limit the disincentives to providing liquidity to the market. For example, the Operating Committee expects that a firm that has 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 are 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.'' \44\ --------------------------------------------------------------------------- \43\ Section 11.2(e) of the CAT NMS Plan. \44\ Approval Order at 84796. --------------------------------------------------------------------------- The funding model also is structured to avoid a reduction in market quality because it discounts Options Market Maker and equity market maker quotes when calculating message traffic for Options Market Makers and equity market makers, respectively. As discussed in more detail below, the Operating Committee determined to discount the Options Market Maker quotes by the trade to quote ratio for options when calculating message traffic for Options Market Makers. Similarly, to avoid disincentives to quoting behavior on the equities side as well, the Operating Committee determined to discount equity market maker quotes by the trade to quote ratio for equities when calculating message traffic for equity market makers. The proposed discounts recognize the value of the market makers' quoting activity to the market as a whole. The CAT NMS Plan is further structured to avoid potential conflicts raised by the Operating Committee determining fees applicable to its own members--the Participants. First, the Company will operate 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.\45\ 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.'' \46\ 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.'' \47\ The Internal Revenue Service recently has determined that the Company is exempt from federal income tax under Section 501(c)(6) of the Internal Revenue Code. --------------------------------------------------------------------------- \45\ Id. at 84792. \46\ 26 U.S.C. 501(c)(6). \47\ Approval Order at 84793. --------------------------------------------------------------------------- The funding model also is structured to take into account distinctions in the securities trading operations of Participants and Industry Members. For example, the Operating Committee designed the model to address the different trading characteristics in the OTC Equity Securities market. Specifically, the Operating Committee proposes to discount the market share of Execution Venue ATSs exclusively trading OTC Equity Securities as well as the market share of the FINRA ORF by the average shares per trade ratio between NMS Stocks and OTC Equity Securities to adjust for the greater number of shares being traded in the OTC Equity Securities market, which is generally a function of a lower per share price for OTC Equity Securities when compared to NMS Stocks. In addition, the Operating Committee also proposes to discount Options Market Maker and equity market maker message traffic in recognition of their role in the securities markets. Furthermore, the funding model creates separate tiers for Equity and Options Execution Venues due to the different trading characteristics of those markets. Finally, by adopting a CAT-specific fee, the Operating Committee 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. 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, [[Page 58976]] including ATSs, are based upon the level of market share; (ii) Industry Members' non-ATS activities are based upon message traffic; (iii) the CAT Reporters with the most CAT-related activity (measured by market share and/or message traffic, as applicable) are generally comparable (where, for these comparability purposes, the tiered fee structure takes into consideration affiliations between or among CAT Reporters, whether Execution Venue and/or Industry Members); To provide for ease of billing and other administrative functions; To avoid any disincentives such as placing an inappropriate burden on competition and a reduction in market quality; and To build financial stability to support the Company as a going concern. (B) Industry Member Tiering Under Section 11.3(b) of the CAT NMS Plan, the Operating Committee is required to establish fixed fees to be payable by Industry Members, based on message traffic generated by such Industry Member, with the Operating Committee establishing at least five and no more than nine tiers. The CAT NMS Plan clarifies that the fixed fees payable by Industry Members pursuant to Section 11.3(b) shall, in addition to any other applicable message traffic, include message traffic generated by: (i) An ATS that does not execute orders that is sponsored by such Industry Member; and (ii) routing orders to and from any ATS sponsored by such Industry Member. In addition, the Industry Member fees will apply to Industry Members that act as routing broker-dealers for exchanges. The Industry Member fees will not be applicable, however, to an ATS that qualifies as an Execution Venue, as discussed in more detail in the section on Execution Venue tiering. In accordance with Section 11.3(b), the Operating Committee approved a tiered fee structure for Industry Members (other than Execution Venue ATSs) as described in this section. In determining the tiers, the Operating Committee considered the funding principles set forth in Section 11.2 of the CAT NMS Plan, seeking to create funding tiers that take into account the relative impact on CAT System resources of different Industry Members, and that establish comparable fees among the CAT Reporters with the most Reportable Events. The Operating Committee has determined that establishing seven tiers results in an allocation of fees that distinguishes between Industry Members with differing levels of message traffic. Thus, each such Industry Member will be placed into one of seven tiers of fixed fees, based on ``message traffic'' for a defined period (as discussed below). A seven tier structure was selected to provide a wide 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 from multiple time periods, 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 seven tiers 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. Furthermore, the selection of seven tiers establishes comparable fees among the largest CAT Reporters. 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 ensure that the total CAT Fees collected recover the expected 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 seven tiers that would group firms with similar levels of message traffic. 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 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 seven Industry Member tiers across the monthly average of total equity and equity options orders, cancels, quotes and executions in the second quarter of 2017 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 driven by fixed percentages of Industry Members across tiers to account for fluctuating levels of message traffic over time. This approach also provides financial stability for 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)(2)(I). [[Page 58977]] [GRAPHIC] [TIFF OMITTED] TN14DE17.048 ------------------------------------------------------------------------ Approximate message traffic per Industry Member tier Industry Member (Q2 2017) (orders, quotes, cancels and executions) ------------------------------------------------------------------------ Tier 1.............................. >10,000,000,000 Tier 2.............................. 1,000,000,000-10,000,000,000 Tier 3.............................. 100,000,000-1,000,000,000 Tier 4.............................. 1,000,000-100,000,000 Tier 5.............................. 100,000-1,000,000 Tier 6.............................. 10,000-100,000 Tier 7.............................. <10,000 ------------------------------------------------------------------------ Based on the above analysis, the Operating Committee approved the following Industry Member Percentages and Industry Member Recovery Allocations: ---------------------------------------------------------------------------------------------------------------- Percentage of Percentage of Industry Percentage of Industry Member tier Industry Member total recovery Members recovery ---------------------------------------------------------------------------------------------------------------- Tier 1.......................................................... 0.900 12.00 9.00 Tier 2.......................................................... 2.150 20.50 15.38 Tier 3.......................................................... 2.800 18.50 13.88 Tier 4.......................................................... 7.750 32.00 24.00 Tier 5.......................................................... 8.300 10.00 7.50 Tier 6.......................................................... 18.800 6.00 4.50 Tier 7.......................................................... 59.300 1.00 0.75 ----------------------------------------------- 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, quotes and executions provided by each exchange and FINRA over the previous three months. 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 executions originated by a member of FINRA, and excluding order rejects, system-modified orders, order routes [[Page 58978]] and implied orders.\48\ 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) and multiple cancels of a complex order. 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. Additionally, prior to the start of CAT reporting, executions would be comprised of the total number of equity and equity option executions received or originated by a member of an exchange or FINRA over a three-month period. --------------------------------------------------------------------------- \48\ 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.\49\ --------------------------------------------------------------------------- \49\ If an Industry Member (other than an Execution Venue ATS) has no orders, cancels, quotes and executions 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. --------------------------------------------------------------------------- Quotes of Options Market Makers and equity market makers will be included in the calculation of total message traffic for those market makers for purposes of tiering under the CAT funding model both prior to CAT reporting and once CAT reporting commences.\50\ To address potential concerns regarding burdens on competition or market quality of including quotes in the calculation of message traffic, however, the Operating Committee determined to discount the Options Market Maker quotes by the trade to quote ratio for options when calculating message traffic for Options Market Makers. Based on available data for June 2016 through June 2017, the trade to quote ratio for options is 0.01%. Similarly, to avoid disincentives to quoting behavior on the equities side, the Operating Committee determined to discount equity market maker quotes by the trade to quote ratio for equities. Based on available data for June 2016 through June 2017, the trade to quote ratio for equities is 5.43%.\51\ The trade to quote ratio for options and the trade to quote ratio for equities will be calculated every three months when tiers are recalculated (as discussed below). --------------------------------------------------------------------------- \50\ 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 Rel. No. 77265 (Mar. 1, 2017, 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. \51\ The trade to quote ratios were calculated based on the inverse of the average of the monthly equity SIP and OPRA quote to trade ratios from June 2016-June 2017 that were compiled by the Financial Information Forum using data from NASDAQ and SIAC. --------------------------------------------------------------------------- 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).'' \52\ --------------------------------------------------------------------------- \52\ 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 Operating Committee determined that ATSs should be included within the definition of Execution Venue. The Operating Committee believes that it is appropriate to treat ATSs as Execution Venues under the proposed funding model since ATSs have business models that are similar to those of exchanges, and ATSs also compete with exchanges. 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 Execution Venues and Options Execution Venues are treated separately for two reasons. First, the differing quoting behavior of Equity Execution Venues 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 [[Page 58979]] 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 four tiers of fixed fees, based on the Execution Venue's NMS Stocks and OTC Equity Securities market share. In choosing four 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 four tiers for Equity Execution Venues, rather than a larger number of tiers as established for non-Execution Venue Industry Members, because the four tiers were sufficient to distinguish between the smaller number of Equity Execution Venues based on market share. Furthermore, the selection of four tiers serves to help establish comparability among the largest CAT Reporters. 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 reviewed historical market share of share volume for Execution Venues. Equity Execution Venue market shares of share volume were sourced from market statistics made publicly-available by Bats Global Markets, Inc. (``Bats''). ATS market shares of share volume was sourced from market statistics made publicly-available by FINRA. FINRA trade reporting facility (``TRF'') and ORF market share of share volume was sourced from market statistics made publicly available by FINRA. Based on data from FINRA and otcmarkets.com, ATSs accounted for 39.12% of the share volume across the TRFs and ORFs during the recent tiering period. A 39.12%/60.88% 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 market share of share volume. The Operating Committee determined to discount the market share of Execution Venue ATSs exclusively trading OTC Equity Securities as well as the market share of the FINRA ORF in recognition of the different trading characteristics of the OTC Equity Securities market as compared to the market in NMS Stocks. Many OTC Equity Securities are priced at less than one dollar--and a significant number at less than one penny-- per share and low-priced shares tend to trade in larger quantities. Accordingly, a disproportionately large number of shares are involved in transactions involving OTC Equity Securities versus NMS Stocks. Because the proposed fee tiers are based on market share calculated by share volume, Execution Venue ATSs exclusively trading OTC Equity Securities and FINRA would likely be subject to higher tiers than their operations may warrant. To address this potential concern, the Operating Committee determined to discount the market share of Execution Venue ATSs exclusively trading OTC Equity Securities and the market share of the FINRA ORF by multiplying such market share by the average shares per trade ratio between NMS Stocks and OTC Equity Securities in order to adjust for the greater number of shares being traded in the OTC Equity Securities market. Based on available data for the second quarter of 2017, the average shares per trade ratio between NMS Stocks and OTC Equity Securities is 0.17%.\53\ The average shares per trade ratio between NMS Stocks and OTC Equity Securities will be recalculated every three months when tiers are recalculated.\54\ --------------------------------------------------------------------------- \53\ The average shares per trade ratio for both NMS Stocks and OTC Equity Securities from the second quarter of 2017 was calculated using publicly available market volume data from Bats and OTC Markets Group, and the totals were divided to determine the average number of shares per trade between NMS Stocks and OTC Equity Securities. \54\ The discount is only applied to the market share of Execution Venue ATSs exclusively trading OTC Equity Securities. Accordingly, FINRA's market share, which includes market share from the OTC Reporting Facility, is not discounted as a result of its OTC Equity Securities activity. --------------------------------------------------------------------------- Based on this, the Operating Committee considered the distribution of Execution Venues, and grouped together Execution Venues with similar levels of market share. 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 to be recovered from 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 cost recovery 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, by using percentages of Equity Execution Venues and cost recovery per tier, the Operating Committee sought to include elasticity within the funding model, allowing the funding model to respond to changes in either the total number of Equity Execution Venues or changes in market share. Based on this analysis, the Operating Committee approved the following Equity Execution Venue Percentages and Recovery Allocations: ---------------------------------------------------------------------------------------------------------------- Percentage of Equity Percentage of Percentage of Equity Execution Venue tier Execution Execution total recovery Venues Venue recovery ---------------------------------------------------------------------------------------------------------------- Tier 1.......................................................... 25.00 33.25 8.31 Tier 2.......................................................... 42.00 25.73 6.43 Tier 3.......................................................... 23.00 8.00 2.00 Tier 4.......................................................... 10.00 0.02 0.01 ----------------------------------------------- Total....................................................... 100 67 16.75 ---------------------------------------------------------------------------------------------------------------- [[Page 58980]] (II) Listed Options Section 11.3(a)(ii) of the CAT NMS Plan states that each Execution Venue that executes transactions in Listed Options will pay a fixed fee depending on the Listed Options market share of that Execution Venue, with the Operating Committee establishing at least two and no more than five tiers of fixed fees, based on an Execution Venue's Listed Options market share. For these purposes, market share will be calculated by contract volume. In accordance with Section 11.3(a)(ii) of the CAT NMS Plan, the Operating Committee approved a tiered fee structure for Options Execution Venues. In determining the tiers, the Operating Committee considered the funding principles set forth in Section 11.2 of the CAT NMS Plan, seeking to create funding tiers that take into account the relative impact on system resources of different Options Execution Venues, and that establish comparable fees among the CAT Reporters with the most Reportable Events. Each Options Execution Venue will be placed into one of two tiers of fixed fees, based on the Execution Venue's Listed Options market share. In choosing two tiers, the Operating Committee performed an analysis similar to that discussed above with regard to Industry Members (other than Execution Venue ATSs) to determine the number of tiers for Options Execution Venues. The Operating Committee determined to establish two tiers for Options Execution Venues, rather than a larger number, 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. Furthermore, the selection of two tiers served to establish comparable fees among the largest CAT Reporters. 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 to be recovered from 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 cost recovery 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 cost recovery per tier, the Operating Committee sought to include 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 Options Percentage of Percentage of Options Execution Venue tier Execution Execution total recovery Venues Venue recovery ---------------------------------------------------------------------------------------------------------------- Tier 1.......................................................... 75.00 28.25 7.06 Tier 2.......................................................... 25.00 4.75 1.19 ----------------------------------------------- Total....................................................... 100 33 8.25 ---------------------------------------------------------------------------------------------------------------- (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 and OTC Markets. Set forth in Exhibit 3 of the proposed rule change 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 (with the discounting of market share of Execution Venue ATSs exclusively trading OTC Equity Securities, as described above). Similarly, market share for Options Execution Venues will be determined by calculating each Options Execution Venue's proportion of the total volume of Listed Options contracts reported by all Options Execution Venues during the relevant time period. The Operating Committee has determined to calculate fee tiers for Execution Venues every three months based on market share from the prior three months. Based on its analysis of historical data, the Operating Committee believes calculating tiers based on three months of data will provide the best balance between reflecting changes in activity by Execution Venues while still providing predictability in the tiering for Execution Venues. (D) Allocation of Costs In addition to the funding principles discussed above, including comparability of fees, Section 11.1(c) of the CAT NMS Plan also requires expenses to be fairly and reasonably shared among the Participants and Industry Members. Accordingly, in developing the proposed fee schedules pursuant to the funding model, the Operating Committee calculated how the CAT costs would be allocated between Industry Members and Execution Venues, and how the portion [[Page 58981]] 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 recovery from such Industry Members and Execution Venues, including 80%/20%, 75%/25%, 70%/30% and 65%/35% allocations. 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. For example, the cost allocation establishes fees for the largest Industry Members (i.e., those Industry Members in Tiers 1) that are comparable to the largest Equity Execution Venues and Options Execution Venues (i.e., those Execution Venues in Tier 1). Furthermore, the allocation of total CAT cost recovery 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 23 times more Industry Members expected to report to the CAT than Execution Venues (e.g., an estimated 1541 Industry Members versus 67 Execution Venues as of June 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 Execution Venues 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 67 percent of Execution Venue costs recovered to Equity Execution Venues and 33 percent to Options Execution Venues. The Operating Committee determined that a 67%/33% allocation between Equity Execution Venues and Options Execution Venues maintained the greatest level of fee equitability and comparability based on the current number of Equity Execution Venues 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. Specifically, Tier 1 Equity Execution Venues would pay a quarterly fee of $81,047 and Tier 1 Options Execution Venues would pay a quarterly fee of $81,379. 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.\55\ --------------------------------------------------------------------------- \55\ It is anticipated that CAT-related costs incurred prior to November 21, 2016 will be addressed via a separate filing. --------------------------------------------------------------------------- The Plan Processor costs relate to costs incurred and to be incurred through November 21, 2017 by the Plan Processor and consist of the Plan Processor's current estimates of average yearly ongoing costs, including development costs, which total $37,500,000. This amount is based upon the fees due to the Plan Processor pursuant to the Company's 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 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 cyber-insurance costs for the year. Based on discussions with potential cyber-insurance providers, assuming $2-5 million cyber- insurance premium on $100 million coverage, the Company has estimated $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 CAT operational reserve, which is comprised of three months of ongoing Plan Processor costs ($9,375,000), third party support costs ($1,300,000) and cyber- insurance costs ($750,000). The Operating Committee aims to accumulate the necessary funds to establish 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 to replenish 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 estimated CAT costs of $50,700,000 for the covered period. ------------------------------------------------------------------------ Cost category Cost component Amount ------------------------------------------------------------------------ Plan Processor................. Operational Costs...... $37,500,000 Non-Plan Processor............. Third Party Support 5,200,000 Costs. Operational Reserve.... \56\ 5,000,000 Cyber-insurance Costs.. 3,000,000 --------------- Estimated Total............ ....................... $50,700,000 ------------------------------------------------------------------------ [[Page 58982]] Based on these estimated costs and the calculations for the funding model described above, the Operating Committee determined to impose the following fees: \57\ --------------------------------------------------------------------------- \56\ This $5,000,000 represents the gradual accumulation of the funds for a target operating reserve of $11,425,000. \57\ Note that all monthly, quarterly and annual CAT Fees have been rounded to the nearest dollar. --------------------------------------------------------------------------- For Industry Members (other than Execution Venue ATSs): ------------------------------------------------------------------------ Percentage of Tier Industry Quarterly CAT Members fee ------------------------------------------------------------------------ 1....................................... 0.900 $81,483 2....................................... 2.150 59,055 3....................................... 2.800 40,899 4....................................... 7.750 25,566 5....................................... 8.300 7,428 6....................................... 18.800 1,968 7....................................... 59.300 105 ------------------------------------------------------------------------ For Execution Venues for NMS Stocks and OTC Equity Securities: ------------------------------------------------------------------------ Percentage of Equity Quarterly CAT Tier Execution fee Venues ------------------------------------------------------------------------ 1....................................... 25.00 $81,048 2....................................... 42.00 37,062 3....................................... 23.00 21,126 4....................................... 10.00 129 ------------------------------------------------------------------------ For Execution Venues for Listed Options: ------------------------------------------------------------------------ Percentage of Options Quarterly CAT Tier Execution fee Venues ------------------------------------------------------------------------ 1....................................... 75.00 $81,381 2....................................... 25.00 37,629 ------------------------------------------------------------------------ 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 Fees assumes 52 Equity Execution Venues, 15 Options Execution Venues and 1,541 Industry Members (other than Execution Venue ATSs) as of June 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.......................................................... 0.900 12.00 9.00 Tier 2.......................................................... 2.150 20.50 15.38 Tier 3.......................................................... 2.800 18.50 13.88 Tier 4.......................................................... 7.750 32.00 24.00 Tier 5.......................................................... 8.300 10.00 7.50 Tier 6.......................................................... 18.800 6.00 4.50 Tier 7.......................................................... 59.300 1.00 0.75 ----------------------------------------------- Total....................................................... 100 100 75 ---------------------------------------------------------------------------------------------------------------- [[Page 58983]] ------------------------------------------------------------------------ Estimated number of Industry Member tier Industry members ------------------------------------------------------------------------ Tier 1.................................................. 14 Tier 2.................................................. 33 Tier 3.................................................. 43 Tier 4.................................................. 119 Tier 5.................................................. 128 Tier 6.................................................. 290 Tier 7.................................................. 914 --------------- Total............................................... 1,541 ------------------------------------------------------------------------ [GRAPHIC] [TIFF OMITTED] TN14DE17.049 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 33.25 8.31 Tier 2.......................................................... 42.00 25.73 6.43 Tier 3.......................................................... 23.00 8.00 2.00 Tier 4.......................................................... 10.00 49.00 0.01 ----------------------------------------------- Total....................................................... 100 67 16.75 ---------------------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------ Estimated number of Equity Execution Venue tier Equity Execution Venues ------------------------------------------------------------------------ Tier 1.................................................. 13 Tier 2.................................................. 22 Tier 3.................................................. 12 Tier 4.................................................. 5 --------------- Total............................................... 52 ------------------------------------------------------------------------ [[Page 58984]] [GRAPHIC] [TIFF OMITTED] TN14DE17.050 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 28.25 7.06 Tier 2.......................................................... 25.00 4.75 1.19 ----------------------------------------------- Total....................................................... 100 33 8.25 ---------------------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------ Estimated number of Options Execution Venue tier Options Execution Venues ------------------------------------------------------------------------ Tier 1.................................................. 11 Tier 2.................................................. 4 --------------- Total............................................... 15 ------------------------------------------------------------------------ [GRAPHIC] [TIFF OMITTED] TN14DE17.051 Traceability of Total CAT Fees ---------------------------------------------------------------------------------------------------------------- Estimated Type Industry Member tier number of CAT fees paid Total recovery members annually ---------------------------------------------------------------------------------------------------------------- Industry Members.................... Tier 1.................... 14 $325,932 $4,563,048 Tier 2.................... 33 236,220 7,795,260 Tier 3.................... 43 163,596 7,034,628 Tier 4.................... 119 102,264 12,169,416 Tier 5.................... 128 29,712 3,803,136 Tier 6.................... 290 7,872 2,282,880 Tier 7.................... 914 420 383,880 ----------------------------------------------- Total........................... .......................... 1,541 .............. 38,032,248 ---------------------------------------------------------------------------------------------------------------- Equity Execution Venues............. Tier 1.................... 13 324,192 4,214,496 Tier 2.................... 22 148,248 3,261,456 Tier 3.................... 12 84,504 1,014,048 Tier 4.................... 5 516 2,580 ----------------------------------------------- Total........................... .......................... 52 .............. 8,492,580 ---------------------------------------------------------------------------------------------------------------- Options Execution Venues............ Tier 1.................... 11 325,524 3,580,764 Tier 2.................... 4 150,516 602,064 ----------------------------------------------- [[Page 58985]] Total........................... .......................... 15 .............. 4,182,828 ---------------------------------------------------------------------------------------------------------------- Total....................... .......................... .............. .............. 50,700,000 ----------------------------------------------- Excess \58\................. .......................... .............. .............. 7,656 ---------------------------------------------------------------------------------------------------------------- (F) Comparability of Fees --------------------------------------------------------------------------- \58\ 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 establish comparable fees for the top tier of Industry Members (other than Execution Venue ATSs), Equity Execution Venues and Options Execution Venues. Specifically, each Tier 1 CAT Reporter would be required to pay a quarterly fee of approximately $81,000. (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. In accordance with the CAT NMS Plan, all CAT Reporters, including both Industry Members and Execution Venues (including Participants), will be invoiced as promptly as possible following the latest of the operative date of the Consolidated Audit Trail Funding Fees for each of the Participants and the operative date of the Plan amendment adopting CAT Fees for Participants. (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.\59\ 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.\60\ 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 the Exchange 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). --------------------------------------------------------------------------- \59\ 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 Participants, such as any changes in costs related to the retirement of existing regulatory systems, such as OATS. \60\ 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. 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, the assignment 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 also on the message traffic/market share across all CAT Reporters. For example, the percentage of Industry Members (other than Execution Venue ATSs) in each tier is relative such that such Industry Member's assigned tier will depend on message traffic generated across all CAT Reporters as well as the total number of CAT Reporters. The Operating Committee will inform CAT Reporters of their assigned tier every three months following the periodic tiering process, as the funding model will compare an individual CAT Reporter's activity to that of other CAT Reporters in the marketplace. The following demonstrates a tier reassignment. In accordance with the funding model, the top 75% of Options Execution Venues in market share are categorized as Tier 1 while the bottom 25% of Options Execution Venues in market share are categorized as Tier 2. In the sample scenario below, Options Execution Venue L is initially categorized as a Tier 2 Options Execution Venue in Period A due to its market share. When market share is recalculated for Period B, the market share of Execution Venue L increases, and it is therefore subsequently reranked and reassigned to Tier 1 in Period B. Correspondingly, Options Execution Venue K, initially a Tier 1 [[Page 58986]] Options Execution Venue in Period A, is reassigned to Tier 2 in Period B due to decreases in its market share. ---------------------------------------------------------------------------------------------------------------- Period A Period B ---------------------------------------------------------------------------------------------------------------- Market share Options Market share Options Execution Venue rank Tier Execution Venue rank Tier ---------------------------------------------------------------------------------------------------------------- Options Execution Venue A.... 1 1 Options 1 1 Execution Venue A. Options Execution Venue B.... 2 1 Options 2 1 Execution Venue B. Options Execution Venue C.... 3 1 Options 3 1 Execution Venue C. Options Execution Venue D.... 4 1 Options 4 1 Execution Venue D. Options Execution Venue E.... 5 1 Options 5 1 Execution Venue E. Options Execution Venue F.... 6 1 Options 6 1 Execution Venue F. Options Execution Venue G.... 7 1 Options 7 1 Execution Venue I. Options Execution Venue H.... 8 1 Options 8 1 Execution Venue H. Options Execution Venue I.... 9 1 Options 9 1 Execution Venue G. Options Execution Venue J.... 10 1 Options 10 1 Execution Venue J. Options Execution Venue K.... 11 1 Options 11 1 Execution Venue L. Options Execution Venue L.... 12 2 Options 12 2 Execution Venue K. Options Execution Venue M.... 13 2 Options 13 2 Execution Venue N. Options Execution Venue N.... 14 2 Options 14 2 Execution Venue M. Options Execution Venue O.... 15 2 Options 15 2 Execution Venue O. ---------------------------------------------------------------------------------------------------------------- For each periodic tier reassignment, the Operating Committee will review the new tier assignments, particularly those assignments for CAT Reporters that shift from the lowest tier to a higher tier. This review is intended to evaluate whether potential changes to the market or CAT Reporters (e.g., dissolution of a large CAT Reporter) adversely affect the tier reassignments. (J) Sunset Provision The Operating Committee developed the proposed funding model by analyzing currently available historical data. Such historical data, however, is not as comprehensive as data that will be submitted to the CAT. Accordingly, the Operating Committee believes that it will be appropriate to revisit the funding model once CAT Reporters have actual experience with the funding model. Accordingly, the Operating Committee determined to include an automatic sunsetting provision for the proposed fees. Specifically, the Operating Committee determined that the CAT Fees should automatically expire two years after the operative date of the CAT NMS Plan amendment adopting CAT Fees for Participants. The Operating Committee intends to monitor the operation of the funding model during this two year period and to evaluate its effectiveness during that period. Such a process will inform the Operating Committee's approach to funding the CAT after the two year period. (3) Proposed CAT Fee Schedule The Exchange proposes the Consolidated Audit Trail Funding Fees to adopt the CAT Fees determined by the Operating Committee on the Exchange's Industry Members. The proposed fee change has four sections, covering definitions, the fee schedule for CAT Fees, the timing and manner of payments, and the automatic sunsetting of the CAT Fees. Each of these sections is discussed in detail below. (A) Definitions Paragraph (a) sets forth the definitions applicable to the proposed Consolidated Audit Trail Funding Fees. Proposed paragraph (a)(1) states that, for purposes of the Consolidated Audit Trail Funding Fees, the terms ``CAT'', ``CAT NMS Plan,'' ``Industry Member,'' ``NMS Stock,'' ``OTC Equity Security'', ``Options Market Maker'', and ``Participant'' are defined as set forth in Rule 11.6810 (Consolidated Audit Trail-- Definitions) of the CAT Compliance Rule.\61\ --------------------------------------------------------------------------- \61\ Securities Exchange Act Rel. No. 80256 (Mar. 15, 2017), 82 FR 14526 (Mar. 21, 2017) (SR-NYSEArca-2017-03). --------------------------------------------------------------------------- The Exchange proposes to adopt different fees for Equity ATSs and Industry Members that are not Equity ATSs. Accordingly, the Exchange proposes to define 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) 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) of the proposed rule change. 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 The Exchange proposes to adopt the CAT Fees applicable to its Industry Members through paragraph (b) of the proposed rule change. Paragraph (b)(1) of the proposed rule change 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 (with discounts for equity market maker quotes and Options Market Maker quotes based on the trade to quote ratio for equities and options, respectively) 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 7. Each quarter, each Industry Member (other than an Equity ATS) shall pay the following [[Page 58987]] CAT Fee corresponding to the tier assigned by the Company for such Industry Member for that quarter: ------------------------------------------------------------------------ Percentage of Tier Industry Quarterly CAT Members fee ------------------------------------------------------------------------ 1....................................... 0.900 $81,483 2....................................... 2.150 59,055 3....................................... 2.800 40,899 4....................................... 7.750 25,566 5....................................... 8.300 7,428 6....................................... 18.800 1,968 7....................................... 59.300 105 ------------------------------------------------------------------------ Paragraph (b)(2) of the proposed rule change sets forth the CAT Fees applicable to Equity ATSs.\62\ 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 (with a discount for Equity ATSs exclusively trading OTC Equity Securities based on the average shares per trade ratio between NMS Stocks and OTC Equity Securities) for the three months prior to the quarterly tier calculation day and assigning each Equity ATS to a tier based on that ranking and predefined Equity Execution Venue percentages. The Equity ATSs with the highest total quarterly market share will be ranked in Tier 1, and the Equity ATSs with the lowest quarterly market share will be ranked in Tier 4. 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: --------------------------------------------------------------------------- \62\ 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 to trading restrictions related to Listed Options. ------------------------------------------------------------------------ Percentage of Equity Quarterly CAT Tier Execution fee Venues ------------------------------------------------------------------------ 1....................................... 25.00 $81,048 2....................................... 42.00 37,062 3....................................... 23.00 21,126 4....................................... 10.00 129 ------------------------------------------------------------------------ (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 rule change 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 rule change, 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. The Exchange will provide Industry Members with details regarding the manner of payment of CAT Fees by Trader Update. All CAT fees will be billed and collected centrally through the Company via the Plan Processor. 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.\63\ --------------------------------------------------------------------------- \63\ 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, the Exchange proposes to adopt paragraph (c)(2), which 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. (D) Sunset Provision The Operating Committee has determined to require that the CAT Fees automatically sunset two years from the operative date of the CAT NMS Plan amendment adopting CAT Fees for Participants. Accordingly, the Exchange proposes to adopt paragraph (d) of the proposed rule change, which states that ``[t]hese Consolidated Audit Trailing Funding Fees will automatically expire two years after the operative date of the amendment of the CAT NMS Plan that adopts CAT fees for the Participants.'' (4) Changes to Original Proposal The proposed funding model set forth in this Amendment is a revised version of the Original Proposal. The Commission received a number of comment letters in response to the Original Proposal.\64\ The SEC suspended the Original Proposal and instituted proceedings to determine whether to approve or disapprove it.\65\ Pursuant to those proceedings, additional comment letters were submitted regarding the proposed funding model.\66\ In developing this Amendment, the Operating Committee carefully considered these comments and made a number of changes to the Original Proposal to address these comments where appropriate. --------------------------------------------------------------------------- \64\ For a description of the comments submitted in response to those Original Proposal, see Suspension Order. \65\ Suspension Order. \66\ See MFA Letter; SIFMA Letter; FIA Principal Traders Group Letter; Belvedere Letter; Sidley Letter; Group One Letter; and Virtu Financial Letter. --------------------------------------------------------------------------- This Amendment makes the following changes to the Original Proposal: (1) Adds two additional CAT Fee tiers for Equity Execution Venues; (2) discounts the market share of Execution Venue ATSs exclusively trading OTC Equity Securities as well as the market share of the FINRA ORF by the average shares per trade ratio between NMS Stocks and OTC Equity Securities (calculated as 0.17% based on available data from the second quarter of June 2017) when calculating the market share of Execution Venue ATSs exclusively trading OTC Equity Securities and FINRA; (3) discounts the Options Market Maker quotes by the trade to quote ratio for options (calculated as 0.01% based on available data for June 2016 through June 2017) when calculating message traffic for Options Market Makers; (4) discounts equity [[Page 58988]] market maker quotes by the trade to quote ratio for equities (calculated as 5.43% based on available data for June 2016 through June 2017) when calculating message traffic for equity market makers; (5) decreases the number of tiers for Industry Members (other than the Execution Venue ATSs) from nine to seven; (6) changes the allocation of CAT costs between Equity Execution Venues and Options Execution Venues from 75%/25% to 67%/33%; (7) adjusts tier percentages and recovery allocations for Equity Execution Venues, Options Execution Venues and Industry Members (other than Execution Venue ATSs); (8) focuses the comparability of CAT Fees on the individual entity level, rather than primarily on the comparability of affiliated entities; (9) commences invoicing of CAT Reporters as promptly as possible following the latest of the operative date of the Consolidated Audit Trail Funding Fees for each of the Participants and the operative date of the CAT NMS Plan amendment adopting CAT Fees for Participants; and (10) requires the proposed fees to automatically expire two years from the operative date of the CAT NMS Plan amendment adopting CAT Fees for the Participants. (A) Equity Execution Venues (i) Small Equity Execution Venues In the Original Proposal, the Operating Committee proposed to establish two fee tiers for Equity Execution Venues. The Commission and commenters raised the concern that, by establishing only two tiers, smaller Equity Execution Venues (e.g., those Equity ATSs representing less than 1% of NMS market share) would be placed in the same fee tier as larger Equity Execution Venues, thereby imposing an undue or inappropriate burden on competition.\67\ To address this concern, the Operating Committee proposes to add two additional tiers for Equity Execution Venues, a third tier for smaller Equity Execution Venues and a fourth tier for the smallest Equity Execution Venues. --------------------------------------------------------------------------- \67\ See Suspension Order at 31664; SIFMA Letter at 3. --------------------------------------------------------------------------- Specifically, the Original Proposal had two tiers of Equity Execution Venues. Tier 1 required the largest Equity Execution Venues to pay a quarterly fee of $63,375. Based on available data, these largest Equity Execution Venues were those that had equity market share of share volume greater than or equal to 1%.\68\ Tier 2 required the remaining smaller Equity Execution Venues to pay a quarterly fee of $38,820. --------------------------------------------------------------------------- \68\ Note that while these equity market share thresholds were referenced as data points 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. --------------------------------------------------------------------------- To address concerns about the potential for the $38,820 quarterly fee to impose an undue burden on smaller Equity Execution Venues, the Operating Committee determined to move to a four tier structure for Equity Execution Venues. Tier 1 would continue to include the largest Equity Execution Venues by share volume (that is, based on currently available data, those with market share of equity share volume greater than or equal to 1%), and these Equity Execution Venues would be required to pay a quarterly fee of $81,048. The Operating Committee determined to divide the original Tier 2 into three tiers. The new Tier 2 Equity Execution Venues, which would include the next largest Equity Execution Venues by equity share volume, would be required to pay a quarterly fee of $37,062. The new Tier 3 Equity Execution Venues would be required to pay a quarterly fee of $21,126. The new Tier 4 Equity Execution Venues, which would include the smallest Equity Execution Venues by share volume, would be required to pay a quarterly fee of $129. In developing the proposed four tier structure, the Operating Committee considered keeping the existing two tiers, as well as shifting to three, four or five Equity Execution Venue tiers (the maximum number of tiers permitted under the Plan), to address the concerns regarding small Equity Execution Venues. For each of the two, three, four and five tier alternatives, the Operating Committee considered the assignment of various percentages of Equity Execution Venues to each tier as well as various percentage of Equity Execution Venue recovery allocations for each alternative. As discussed below in more detail, each of these options was considered in the context of the full model, as changes in each variable in the model affect other variables in the model when allocating the total CAT costs among CAT Reporters. The Operating Committee determined that the four tier alternative addressed the spectrum of different Equity Execution Venues. The Operating Committee determined that neither a two tier structure nor a three tier structure sufficiently accounted for the range of market shares of smaller Equity Execution Venues. The Operating Committee also determined that, given the limited number of Equity Execution Venues, that a fifth tier was unnecessary to address the range of market shares of the Equity Execution Venues. By increasing the number of tiers for Equity Execution Venues and reducing the proposed CAT Fees for the smaller Equity Execution Venues, the Exchange believes that the proposed fees for Equity Execution Venues would not impose an undue or inappropriate burden on competition under Section 6 of the Exchange Act. Moreover, the Exchange believes that the proposed fees appropriately take into account the distinctions in the securities trading operations of different Equity Execution Venues, as required under the funding principles of the CAT NMS Plan.\69\ The larger number of tiers more closely tracks the variety of sizes of equity share volume of Equity Execution Venues. In addition, the reduction in the fees for the smaller Equity Execution Venues recognizes the potential burden of larger fees on smaller entities. In particular, the very small quarterly fee of $129 for Tier 4 Equity Execution Venues reflects the fact that certain Equity Execution Venues have a very small share volume due to their typically more focused business models. --------------------------------------------------------------------------- \69\ Section 11.2(b) of the CAT NMS Plan. --------------------------------------------------------------------------- Accordingly, with this Amendment, the Exchange proposes to amend paragraph (b)(2) of the proposed rule change to add the two additional tiers for Equity Execution Venues, to establish the percentages and fees for Tiers 3 and 4 as described, and to revise the percentages and fees for Tiers 1 and 2 as described. (ii) Execution Venues for OTC Equity Securities In the Original Proposal, the Execution Venues for OTC Equity Securities and Execution Venues for NMS Stocks were grouped in the same tier structure. The Commission and commenters raised concerns as to whether this determination to place Execution Venues for OTC Equity Securities in the same tier structure as Execution Venues for NMS Stocks would result in an undue or inappropriate burden on competition, recognizing that the application of share volume may lead to different outcomes as applied to OTC Equity Securities and NMS Stocks.\70\ To address this concern, the Operating Committee proposes to discount the market share of Execution [[Page 58989]] Venue ATSs exclusively trading OTC Equity Securities as well as the market share of the FINRA ORF by the average shares per trade ratio between NMS Stocks and OTC Equity Securities (0.17% for the second quarter of 2017) in order to adjust for the greater number of shares being traded in the OTC Equity Securities market, which is generally a function of a lower per share price for OTC Equity Securities when compared to NMS Stocks. --------------------------------------------------------------------------- \70\ See Suspension Order at 31664-5. --------------------------------------------------------------------------- As commenters noted, many OTC Equity Securities are priced at less than one dollar--and a significant number at less than one penny--and low-priced shares tend to trade in larger quantities. Accordingly, a disproportionately large number of shares are involved in transactions involving OTC Equity Securities versus NMS Stocks, which has the effect of overstating an Execution Venue's true market share when the Execution Venue is involved in the trading of OTC Equity Securities. Because the proposed fee tiers are based on market share calculated by share volume, Execution Venue ATSs trading OTC Equity Securities and FINRA may be subject to higher tiers than their operations may warrant.\71\ The Operating Committee proposes to address this concern in two ways. First, the Operating Committee proposes to increase the number of Equity Execution Venue tiers, as discussed above. Second, the Operating Committee determined to discount the market share of Execution Venue ATSs exclusively trading OTC Equity Securities as well as the market share of the FINRA ORF when calculating their tier placement. Because the disparity in share volume between Execution Venues trading in OTC Equity Securities and NMS Stocks is based on the different number of shares per trade for OTC Equity Securities and NMS Stocks, the Operating Committee believes that discounting the share volume of such Execution Venue ATSs as well as the market share of the FINRA ORF would address the difference in shares per trade for OTC Equity Securities and NMS Stocks. Specifically, the Operating Committee proposes to impose a discount based on the objective measure of the average shares per trade ratio between NMS Stocks and OTC Equity Securities. Based on available data from the second quarter of 2017, the average shares per trade ratio between NMS Stocks and OTC Equity Securities is 0.17%. --------------------------------------------------------------------------- \71\ Suspension Order at 31664-5. --------------------------------------------------------------------------- The practical effect of applying such a discount for trading in OTC Equity Securities is to shift Execution Venue ATSs exclusively trading OTC Equity Securities to tiers for smaller Execution Venues and with lower fees. For example, under the Original Proposal, one Execution Venue ATS exclusively trading OTC Equity Securities was placed in the first CAT Fee tier, which had a quarterly fee of $63,375. With the imposition of the proposed tier changes and the discount, this ATS would be ranked in Tier 3 and would be subject to a quarterly fee of $21,126. In developing the proposed discount for Equity Execution Venue ATSs exclusively trading OTC Equity Securities and FINRA, the Operating Committee evaluated different alternatives to address the concerns related to OTC Equity Securities, including creating a separate tier structure for Execution Venues trading OTC Equity Securities (like the separate tier for Options Execution Venues) as well as the proposed discounting method for Execution Venue ATSs exclusively trading OTC Equity Securities and FINRA. For these alternatives, the Operating Committee considered how each alternative would affect the recovery allocations. In addition, each of these options was considered in the context of the full model, as changes in each variable in the model affect other variables in the model when allocating the total CAT costs among CAT Reporters. The Operating Committee did not adopt a separate tier structure for Equity Execution Venues trading OTC Equity Securities as they determined that the proposed discount approach appropriately addresses the concern. The Operating Committee determined to adopt the proposed discount because it directly relates to the concern regarding the trading patterns and operations in the OTC Equity Securities markets, and is an objective discounting method. By increasing the number of tiers for Equity Execution Venues and imposing a discount on the market share of share volume calculation for trading in OTC Equity Securities, the Exchange believes that the proposed fees for Equity Execution Venues would not impose an undue or inappropriate burden on competition under Section 6 of the Exchange Act. Moreover, the Exchange believes that the proposed fees appropriately take into account the distinctions in the securities trading operations of different Equity Execution Venues, as required under the funding principles of the CAT NMS Plan.\72\ As discussed above, the larger number of tiers more closely tracks the variety of sizes of equity share volume of Equity Execution Venues. In addition, the proposed discount recognizes the different types of trading operations at Equity Execution Venues trading OTC Equity Securities versus those trading NMS Stocks, thereby more closing matching the relative revenue generation by Equity Execution Venues trading OTC Equity Securities to their CAT Fees. --------------------------------------------------------------------------- \72\ Section 11.2(b) of the CAT NMS Plan. --------------------------------------------------------------------------- Accordingly, with this Amendment, the Exchange proposes to amend paragraph (b)(2) of the proposed rule change to indicate that the market share for Equity ATSs exclusively trading OTC Equity Securities as well as the market share of the FINRA ORF would be discounted. In addition, as discussed above, to address concerns related to smaller ATSs, including those that exclusively trade OTC Equity Securities, the Exchange proposes to amend paragraph (b)(2) of the proposed rule change to add two additional tiers for Equity Execution Venues, to establish the percentages and fees for Tiers 3 and 4 as described, and to revise the percentages and fees for Tiers 1 and 2 as described. (B) Market Makers In the Original Proposal, the proposed funding model included both Options Market Maker quotes and equities market maker quotes in the calculation of total message traffic for such market makers for purposes of tiering for Industry Members (other than Execution Venue ATSs). The Commission and commenters raised questions as to whether the proposed treatment of Options Market Maker quotes may result in an undue or inappropriate burden on competition or may lead to a reduction in market quality.\73\ To address this concern, the Operating Committee determined to discount the Options Market Maker quotes by the trade to quote ratio for options when calculating message traffic for Options Market Makers. Similarly, to avoid disincentives to quoting behavior on the equities side as well, the Operating Committee determined to discount equity market maker quotes by the trade to quote ratio for equities when calculating message traffic for equities market makers. --------------------------------------------------------------------------- \73\ See Suspension Order at 31663-4; SIFMA Letter at 4-5; FIA Principal Traders Group Letter at 3; Sidley Letter at 2-6; Group One Letter at 2-5; and Belvedere Letter at 2. --------------------------------------------------------------------------- In the Original Proposal, market maker quotes were treated the same as other message traffic for purposes of tiering for Industry Members (other than Execution Venue ATSs). Commenters noted, however, that charging Industry Members on the basis of message traffic [[Page 58990]] will impact market makers disproportionately because of their continuous quoting obligations. Moreover, in the context of options market makers, message traffic would include bids and offers for every listed options strikes and series, which are not an issue for equities.\74\ The Operating Committee proposes to address this concern in two ways. First, the Operating Committee proposes to discount Options Market Maker quotes when calculating the Options Market Makers' tier placement. Specifically, the Operating Committee proposes to impose a discount based on the objective measure of the trade to quote ratio for options. Based on available data from June 2016 through June 2017, the trade to quote ratio for options is 0.01%. Second, the Operating Committee proposes to discount equities market maker quotes when calculating the equities market makers' tier placement. Specifically, the Operating Committee proposes to impose a discount based on the objective measure of the trade to quote ratio for equities. Based on available data for June 2016 through June 2017, this trade to quote ratio for equities is 5.43%. --------------------------------------------------------------------------- \74\ Suspension Order at 31664. --------------------------------------------------------------------------- The practical effect of applying such discounts for quoting activity is to shift market makers' calculated message traffic lower, leading to the potential shift to tiers for lower message traffic and reduced fees. Such an approach would move sixteen Industry Member CAT Reporters that are market makers to a lower tier than in the Original Proposal. For example, under the Original Proposal, Broker-Dealer Firm ABC was placed in the first CAT Fee tier, which had a quarterly fee of $101,004. With the imposition of the proposed tier changes and the discount, Broker-Dealer Firm ABC, an options market maker, would be ranked in Tier 3 and would be subject to a quarterly fee of $40,899. In developing the proposed market maker discounts, the Operating Committee considered various discounts for Options Market Makers and equity market makers, including discounts of 50%, 25%, 0.00002%, as well as the 5.43% for option market makers and 0.01% for equity market makers. Each of these options were considered in the context of the full model, as changes in each variable in the model affect other variables in the model when allocating the total CAT costs among CAT Reporters. The Operating Committee determined to adopt the proposed discount because it directly relates to the concern regarding the quoting requirement, is an objective discounting method, and has the desired potential to shift market makers to lower fee tiers. By imposing a discount on Options Market Makers and equities market makers' quoting traffic for the calculation of message traffic, the Exchange believes that the proposed fees for market makers would not impose an undue or inappropriate burden on competition under Section 6 of the Exchange Act. Moreover, the Exchange believes that the proposed fees appropriately take into account the distinctions in the securities trading operations of different Industry Members, and avoid disincentives, such as a reduction in market quality, as required under the funding principles of the CAT NMS Plan.\75\ The proposed discounts recognize the different types of trading operations presented by Options Market Makers and equities market makers, as well as the value of the market makers' quoting activity to the market as a whole. Accordingly, the Exchange believes that the proposed discounts will not impact the ability of small Options Market Makers or equities market makers to provide liquidity. --------------------------------------------------------------------------- \75\ Section 11.2(b) of the CAT NMS Plan. --------------------------------------------------------------------------- Accordingly, with this Amendment, the Exchange proposes to amend paragraph (b)(1) of the proposed rule change to indicate that the message traffic related to equity market maker quotes and Options Market Maker quotes would be discounted. In addition, the Exchange proposes to define the term ``Options Market Maker'' in paragraph (a)(1) of the proposed rule change. (C) Comparability/Allocation of Costs Under the Original Proposal, 75% of CAT costs were allocated to Industry Members (other than Execution Venue ATSs) and 25% of CAT costs were allocated to Execution Venues. This cost allocation sought to maintain the greatest level of comparability across the funding model, where comparability considered affiliations among or between CAT Reporters. The Commission and commenters expressed concerns regarding whether the proposed 75%/25% allocation of CAT costs is consistent with the Plan's funding principles and the Exchange Act, including whether the allocation places a burden on competition or reduces market quality. The Commission and commenters also questioned whether the approach of accounting for affiliations among CAT Reporters in setting CAT Fees disadvantages non-affiliated CAT Reporters or otherwise burdens competition in the market for trading services.\76\ --------------------------------------------------------------------------- \76\ See Suspension Order at 31662-3; SIFMA Letter at 3; Sidley Letter at 6-7; Group One Letter at 2; and Belvedere Letter at 2. --------------------------------------------------------------------------- In response to these concerns, the Operating Committee determined to revise the proposed funding model to focus the comparability of CAT Fees at the individual entity level, rather than primarily on the comparability of affiliated entities. In light of the interconnected nature of the various aspects of the funding model, the Operating Committee determined to revise various aspects of the model to enhance comparability at the individual entity level. Specifically, to achieve such comparability, the Operating Committee determined to (1) decrease the number of tiers for Industry Members (other than Execution Venue ATSs) from nine to seven; (2) change the allocation of CAT costs between Equity Execution Venues and Options Execution Venues from 75%/ 25% to 67%/33%; and (3) adjust tier percentages and recovery allocations for Equity Execution Venues, Options Execution Venues and Industry Members (other than Execution Venue ATSs). With these changes, the proposed funding model provides fee comparability for the largest individual entities, with the largest Industry Members (other than Execution Venue ATSs), Equity Execution Venues and Options Execution Venues each paying a CAT Fee of approximately $81,000 each quarter. (i) Number of Industry Member Tiers In the Original Proposal, the proposed funding model had nine tiers for Industry Members (other than Execution Venue ATSs). The Operating Committee determined that reducing the number of tiers from nine tiers to seven tiers (and adjusting the predefined Industry Member Percentages as well) continues to provide a fair allocation of fees among Industry Members and appropriately distinguishes between Industry Members with differing levels of message traffic. In reaching this conclusion, the Operating Committee considered historical message traffic generated by Industry Members across all exchanges and as submitted to FINRA's 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 seven tiers would group firms with similar levels of [[Page 58991]] message traffic, while also achieving greater comparability in the model for the individual CAT Reporters with the greatest market share or message traffic. In developing the proposed seven tier structure, the Operating Committee considered remaining at nine tiers, as well as reducing the number of tiers down to seven when considering how to address the concerns raised regarding comparability. For each of the alternatives, the Operating Committee considered the assignment of various percentages of Industry Members to each tier as well as various percentages of Industry Member recovery allocations for each alternative. Each of these options was considered in the context of its effects on the full funding model, as changes in each variable in the model affect other variables in the model when allocating the total CAT costs among CAT Reporters. The Operating Committee determined that the seven tier alternative provided the most fee comparability at the individual entity level for the largest CAT Reporters, while both providing logical breaks in tiering for Industry Members with different levels of message traffic and a sufficient number of tiers to provide for the full spectrum of different levels of message traffic for all Industry Members. (ii) Allocation of CAT Costs Between Equity and Options Execution Venues The Operating Committee also determined to adjust the allocation of CAT costs between Equity Execution Venues and Options Execution Venues to enhance comparability at the individual entity level. In the Original Proposal, 75% of Execution Venue CAT costs were allocated to Equity Execution Venues, and 25% of Execution Venue CAT costs were allocated to Options Execution Venues. To achieve the goal of increased comparability at the individual entity level, the Operating Committee analyzed a range of alternative splits for revenue recovery between Equity Execution Venues and Options Execution Venues, along with other changes in the proposed funding model. Based on this analysis, the Operating Committee determined to allocate 67 percent of Execution Venue costs recovered to Equity Execution Venues and 33 percent to Options Execution Venues. The Operating Committee determined that a 67%/33% allocation between Equity Execution Venues and Options Execution Venues enhances the level of fee comparability for the largest CAT Reporters. Specifically, the largest Equity Execution Venues and Options Execution Venues would pay a quarterly CAT Fee of approximately $81,000. In developing the proposed allocation of CAT costs between Equity Execution Venues and Options Execution Venues, the Operating Committee considered various different options for such allocation, including keeping the original 75%25% allocation, as well as shifting to a 70%/ 30%, 67%/33%, or 57.75%/42.25% allocation. For each of the alternatives, the Operating Committee considered the effect each allocation would have on the assignment of various percentages of Equity Execution Venues to each tier as well as various percentages of Equity Execution Venue recovery allocations for each alternative. Moreover, each of these options was considered in the context of the full model, as changes in each variable in the model affect other variables in the model when allocating the total CAT costs among CAT Reporters. The Operating Committee determined that the 67%/33% allocation between Equity Execution Venues and Options Execution Venues provided the greatest level of fee comparability at the individual entity level for the largest CAT Reporters, while still providing for appropriate fee levels across all tiers for all CAT Reporters. (iii) Allocation of Costs Between Execution Venues and Industry Members The Operating Committee determined to allocate 25% of CAT costs to Execution Venues and 75% to Industry Members (other than Execution Venue ATSs), as it had in the Original Proposal. The Operating Committee determined that this 75%/25% allocation, along with the other changes proposed above, led to the most comparable fees for the largest Equity Execution Venues, Options Execution Venues and Industry Members (other than Execution Venue ATSs). The largest Equity Execution Venues, Options Execution Venues and Industry Members (other than Execution Venue ATSs) would each pay a quarterly CAT Fee of approximately $81,000. As a preliminary matter, the Operating Committee determined that it is appropriate to allocate most of the costs to create, implement and maintain the CAT to Industry Members for several reasons. First, there are many more Industry Members expected to report to the CAT than Participants (i.e., 1,541 broker-dealer CAT Reporters versus 22 Participants). Second, since most of the costs to process CAT reportable data is generated by Industry Members, Industry Members could be expected to contribute toward such costs. Finally, as noted by the SEC, the CAT ``substantially enhance[s] the ability of the SROs and the Commission to oversee today's securities markets,'' \77\ thereby benefitting all market participants. After making this determination, the Operating Committee analyzed several different cost allocations, as discussed further below, and determined that an allocation where 75% of the CAT costs should be borne by the Industry Members (other than Execution Venue ATSs) and 25% should be paid by Execution Venues was most appropriate and led to the greatest comparability of CAT Fees for the largest CAT Reporters. --------------------------------------------------------------------------- \77\ Securities Exchange Act Rel. No. 67457 (Jul 18, 2012), 77 FR 45722, 45726 (Aug. 1, 2012) (``Rule 613 Adopting Release''). --------------------------------------------------------------------------- In developing the proposed allocation of CAT costs between Execution Venues and Industry Members (other than Execution Venue ATSs), the Operating Committee considered various different options for such allocation, including keeping the original 75%/25% allocation, as well as shifting to an 80%/20%, 70%/30%, or 65%/35% allocation. Each of these options was considered in the context of the full model, including the effect on each of the changes discussed above, as changes in each variable in the model affect other variables in the model when allocating the total CAT costs among CAT Reporters. In particular, for each of the alternatives, the Operating Committee considered the effect each allocation had on the assignment of various percentages of Equity Execution Venues, Options Execution Venues and Industry Members (other than Execution Venue ATSs) to each relevant tier as well as various percentages of recovery allocations for each tier. The Operating Committee determined that the 75%/25% allocation between Execution Venues and Industry Members (other than Execution Venue ATSs) provided the greatest level of fee comparability at the individual entity level for the largest CAT Reporters, while still providing for appropriate fee levels across all tiers for all CAT Reporters. (iv) Affiliations The funding principles set forth in Section 11.2 of the Plan require that the fees charged to 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 [[Page 58992]] Execution Venue and/or Industry Members). The proposed funding model satisfies this requirement. As discussed above, under the proposed funding model, the largest Equity Execution Venues, Options Execution Venues, and Industry Members (other than Execution Venue ATSs) pay approximately the same fee. Moreover, the Operating Committee believes that the proposed funding model takes into consideration affiliations between or among CAT Reporters as complexes with multiple CAT Reporters will pay the appropriate fee based on the proposed rule change for each of the CAT Reporters in the complex. For example, a complex with a Tier 1 Equity Execution Venue and Tier 2 Industry Member will a pay the same as another complex with a Tier 1 Equity Execution Venue and Tier 2 Industry Member. (v) Fee Schedule Changes Accordingly, with this Amendment, the Exchange proposes to amend paragraphs (b)(1) and (2) of the proposed rule change to reflect the changes discussed in this section. Specifically, the Exchange proposes to amend paragraph (b)(1) and (2) to update the number of tiers, and the fees and percentages assigned to each tier to reflect the described changes. (D) Market Share/Message Traffic In the Original Proposal, the Operating Committee proposed to charge Execution Venues based on market share and Industry Members (other than Execution Venue ATSs) based on message traffic. Commenters questioned the use of the two different metrics for calculating CAT Fees.\78\ The Operating Committee continues to believe that the proposed use of market share and message traffic satisfies the requirements of the Exchange Act and the funding principles set forth in the CAT NMS Plan. Accordingly, the proposed funding model continues to charge Execution Venues based on market share and Industry Members (other than Execution Venue ATSs) based on message traffic. --------------------------------------------------------------------------- \78\ Suspension Order at 31663; FIA Principal Traders Group Letter at 2. --------------------------------------------------------------------------- In drafting the Plan and the Original Proposal, the Operating Committee expressed the view that the correlation between message traffic and size does not apply to Execution Venues, which they described as producing similar amounts of message traffic regardless of size. The Operating Committee believed that charging Execution Venues based on message traffic would result in both large and small Execution Venues paying comparable fees, which would be inequitable, so the Operating Committee determined that it would be more appropriate to treat Execution Venues differently from Industry Members in the funding model. Upon a more detailed analysis of available data, however, the Operating Committee noted that Execution Venues have varying levels of message traffic. Nevertheless, the Operating Committee continues to believe that a bifurcated funding model--where Industry Members (other than Execution Venue ATSs) are charged fees based on message traffic and Execution Venues are charged based on market share--complies with the Plan and meets the standards of the Exchange Act for the reasons set forth below. Charging Industry Members based on message traffic is the most equitable means for establishing fees for Industry Members (other than Execution Venue ATSs). This approach will assess fees to Industry Members that create larger volumes of message traffic that are relatively higher than those fees charged to Industry Members that create smaller volumes of message traffic. Since message traffic, along with fixed costs of the Plan Processor, is a key component of the costs of operating the CAT, message traffic is an appropriate criterion for placing Industry Members in a particular fee tier. The Operating Committee also believes that it is appropriate to charge Execution Venues CAT Fees based on their market share. In contrast to Industry Members (other than Execution Venue ATSs), which determine the degree to which they produce the message traffic that constitutes CAT Reportable Events, the CAT Reportable Events of Execution Venues are largely derivative of quotations and orders received from Industry Members that the Execution Venues are required to display. The business model for Execution Venues, however, is focused on executions on their markets. As a result, the Operating Committee believes that it is more equitable to charge Execution Venues based on their market share rather than their message traffic. Similarly, focusing on message traffic would make it more difficult to draw distinctions between large and small exchanges, including options exchanges in particular. For instance, the Operating Committee analyzed the message traffic of Execution Venues and Industry Members for the period of April 2017 to June 2017 and placed all CAT Reporters into a nine-tier framework (i.e., a single tier may include both Execution Venues and Industry Members). The Operating Committee's analysis found that the majority of exchanges (15 total) were grouped in Tiers 1 and 2. Moreover, virtually all of the options exchanges were in Tiers 1 and 2.\79\ Given the concentration of options exchanges in Tiers 1 and 2, the Operating Committee believes that using a funding model based purely on message traffic would make it more difficult to distinguish between large and small options exchanges, as compared to the proposed bifurcated fee approach. --------------------------------------------------------------------------- \79\ The Participants note that this analysis did not place MIAX PEARL in Tier 1 or Tier 2 since the exchange commenced trading on February 6, 2017. --------------------------------------------------------------------------- In addition, the Operating Committee also believes that it is appropriate to treat ATSs as Execution Venues under the proposed funding model since ATSs have business models that are similar to those of exchanges, and ATSs also compete with exchanges. For these reasons, the Operating Committee believes that charging Execution Venues based on market share is more appropriate and equitable than charging Execution Venues based on message traffic. (E) Time Limit In the Original Proposal, the Operating Committee did not impose any time limit on the application of the proposed CAT Fees. As discussed above, the Operating Committee developed the proposed funding model by analyzing currently available historical data. Such historical data, however, is not as comprehensive as data that will be submitted to the CAT. Accordingly, the Operating Committee believes that it will be appropriate to revisit the funding model once CAT Reporters have actual experience with the funding model. Accordingly, the Operating Committee proposes to include a sunsetting provision in the proposed fee model. The proposed CAT Fees will sunset two years after the operative date of the CAT NMS Plan amendment adopting CAT Fees for Participants. Specifically, the Exchange proposes to add paragraph (d) to the proposed rule change to include this sunsetting provision. Such a provision will provide the Operating Committee and other market participants with the opportunity to reevaluate the performance of the proposed funding model. (F) Tier Structure/Decreasing Cost per Unit In the Original Proposal, the Operating Committee determined to use a tiered fee structure. The Commission [[Page 58993]] and commenters questioned whether the decreasing cost per additional unit (of message traffic in the case of Industry Members, or of share volume in the case of Execution Venues) burdens competition by disadvantaging small Industry Members and Execution Venues and/or by creating barriers to entry in the market for trading services and/or the market for broker-dealer services.\80\ --------------------------------------------------------------------------- \80\ Suspension Order at 31667. --------------------------------------------------------------------------- The Operating Committee does not believe that decreasing cost per additional unit places an unfair competitive burden on Small Industry Members and Execution Venues. While the cost per unit of message traffic or share volume necessarily will decrease as volume increases in any tiered fee model using fixed fee percentages and, as a result, Small Industry Members and small Execution Venues may pay a larger fee per message or share, this comment fails to take account of the substantial differences in the absolute fees paid by Small Industry Members and small Execution Venues as opposed to large Industry Members and large Execution Venues. For example, under the revised funding model, Tier 7 Industry Members would pay a quarterly fee of $105, while Tier 1 Industry Members would pay a quarterly fee of $81,483. Similarly, a Tier 4 Equity Execution Venue would pay a quarterly fee of $129, while a Tier 1 Equity Execution Venue would pay a quarterly fee of $81,048. Thus, Small Industry Members and small Execution Venues are not disadvantaged in terms of the total fees that they actually pay. In contrast to a tiered model using fixed fee percentages, the Operating Committee believes that strictly variable or metered funding models based on message traffic or share volume would be more likely to affect market behavior and may present administrative challenges (e.g., the costs to calculate and monitor fees may exceed the fees charged to the smallest CAT Reporters). (G) Other Alternatives Considered In addition to the various funding model alternatives discussed above regarding discounts, number of tiers and allocation percentages, the Operating Committee also discussed other possible funding models. For example, the Operating Committee considered allocating the total CAT costs equally among each of the Participants, and then permitting each Participant to charge its own members as it deems appropriate.\81\ The Operating Committee determined that such an approach raised a variety of issues, including the likely inconsistency of the ensuing charges, potential for lack of transparency, and the impracticality of multiple SROs submitting invoices for CAT charges. The Operating Committee therefore determined that the proposed funding model was preferable to this alternative. --------------------------------------------------------------------------- \81\ See FIA Principal Traders Group Letter at 2; Belvedere Letter at 4. --------------------------------------------------------------------------- (H) Industry Member Input Commenters expressed concern regarding the level of Industry Member input into the development of the proposed funding model, and certain commenters have recommended a greater role in the governance of the CAT.\82\ The Participants previously addressed this concern in its letters responding to comments on the Plan and the CAT Fees.\83\ As discussed in those letters, the Participants discussed the funding model with the Development Advisory Group (``DAG''), the advisory group formed to assist in the development of the Plan, during its original development.\84\ Moreover, Industry Members currently have representation on the Operating Committee and operation of the CAT generally through the Advisory Committee established pursuant to Rule 613(b)(7) and Section 4.13 of the Plan. The Advisory Committee attends all meetings of the Operating Committee, as well as meetings of various subcommittees and working groups, and provides valuable and critical input for the Participants' and Operating Committee's consideration. The Operating Committee continues to believe that Industry Members have an appropriate voice regarding the funding of the Company. --------------------------------------------------------------------------- \82\ See Suspension Order at 31662; MFA Letter at 1-3. \83\ Letter from Participants to Brent J. Fields, Secretary, SEC (Sept. 23, 2016) (``Plan Response Letter''); Letter from CAT NMS Plan Participants to Brent J. Fields, Secretary, SEC (June 29, 2017) (``Fee Rule Response Letter''). \84\ Fee Rule Response Letter at 2; Plan Response Letter at 18. --------------------------------------------------------------------------- (I) Conflicts of Interest Commenters also raised concerns regarding Participant conflicts of interest in setting the CAT Fees.\85\ The Participants previously responded to this concern in both the Plan Response Letter and the Fee Rule Response Letter.\86\ As discussed in those letters, the Plan, as approved by the SEC, adopts various measures to protect against the potential conflicts issues raised by the Participants' fee-setting authority. Such measures include the operation of the Company as a not for profit business league and on a break-even basis, and the requirement that the Participants file all CAT Fees under Section 19(b) of the Exchange Act. The Operating Committee continues to believe that these measures adequately protect against concerns regarding conflicts of interest in setting fees, and that additional measures, such as an independent third party to evaluate an appropriate CAT Fee, are unnecessary. --------------------------------------------------------------------------- \85\ See Suspension Order at 31662; FIA Principal Traders Group at 3. \86\ See Plan Response Letter at 16, 18; Fee Rule Response Letter at 11-12. --------------------------------------------------------------------------- (J) Fee Transparency Commenters also argued that they could not adequately assess whether the CAT Fees were fair and equitable because the Operating Committee has not provided details as to what the Participants are receiving in return for the CAT Fees.\87\ The Operating Committee provided a detailed discussion of the proposed funding model in the Plan, including the expenses to be covered by the CAT Fees. In addition, the agreement between the Company and the Plan Processor sets forth a comprehensive set of services to be provided to the Company with regard to the CAT. Such services include, without limitation: User support services (e.g., a help desk); tools to allow each CAT Reporter to monitor and correct their submissions; a comprehensive compliance program to monitor CAT Reporters' adherence to Rule 613; publication of detailed Technical Specifications for Industry Members and Participants; performing data linkage functions; creating comprehensive data security and confidentiality safeguards; creating query functionality for regulatory users (i.e., the Participants, and the SEC and SEC staff); and performing billing and collection functions. The Operating Committee further notes that the services provided by the Plan Processor and the costs related thereto were subject to a bidding process. --------------------------------------------------------------------------- \87\ See FIA Principal Traders Group at 3; SIFMA Letter at 3. --------------------------------------------------------------------------- (K) Funding Authority Commenters also questioned the authority of the Operating Committee to impose CAT Fees on Industry Members.\88\ The Participants previously responded to this same comment in the Plan Response Letter and the Fee Rule Response Letter.\89\ As the Participants previously noted, SEC Rule 613 specifically contemplates broker-dealers [[Page 58994]] contributing to the funding of the CAT. In addition, as noted by the SEC, the CAT ``substantially enhance[s] the ability of the SROs and the Commission to oversee today's securities markets,'' \90\ thereby benefitting all market participants. Therefore, the Operating Committing continues to believe that it is equitable for both Participants and Industry Members to contribute to funding the cost of the CAT. --------------------------------------------------------------------------- \88\ See Suspension Order at 31661-2; SIFMA Letter at 2. \89\ See Plan Response Letter at 9; Fee Rule Response Letter at 3-4. \90\ Rule 613 Adopting Release at 45726. --------------------------------------------------------------------------- 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with the provisions of Section 6(b)(4) of the Act,\91\ because it provides for the equitable allocation of reasonable dues, fees, and other charges among members and issuers and other persons using its facilities. The Exchange believes the proposed rule change is also consistent with Section 6(b)(5) of the Act,\92\ which requires, among other things, that the Exchange's rules be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and, in general, to protect investors and the public interest, and not designed to permit unfair discrimination between customers, issuers, brokers and dealers. As discussed above, the SEC approved the bifurcated, tiered, fixed fee funding model in the CAT NMS Plan, finding it was reasonable and that it equitably allocated fees among Participants and Industry Members. The Exchange believes that the proposed tiered fees adopted pursuant to the funding model approved by the SEC in the CAT NMS Plan are reasonable, equitably allocated and not unfairly discriminatory. --------------------------------------------------------------------------- \91\ 15 U.S.C. 78f(b)(4). \92\ 15 U.S.C. 78f(b)(6). --------------------------------------------------------------------------- The Exchange believes that this proposal is consistent with the Act because it implements, interprets or clarifies the provisions of the Plan, and is designed to assist the Exchange and its Industry Members in meeting regulatory obligations pursuant to the Plan. In approving the Plan, the SEC noted that the Plan ``is necessary and appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanism of a national market system, or is otherwise in furtherance of the purposes of the Act.'' \93\ To the extent that this proposal implements, interprets or clarifies the Plan and applies specific requirements to Industry Members, the Exchange believes that this proposal furthers the objectives of the Plan, as identified by the SEC, and is therefore consistent with the Act. --------------------------------------------------------------------------- \93\ Approval Order at 84697. --------------------------------------------------------------------------- The Exchange 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, the Exchange believes that the total level of the CAT Fees is reasonable. In addition, the Exchange believes that the proposed CAT Fees are reasonably designed to allocate the total costs of the CAT equitably between and among the Participants and Industry Members, and are therefore not unfairly discriminatory. As discussed in detail above, the proposed tiered fees impose comparable fees on similarly situated CAT Reporters. For example, those with a larger impact on the CAT (measured via message traffic or market share) pay higher fees, whereas CAT Reporters with a smaller impact pay lower fees. Correspondingly, the tiered structure lessens the impact on smaller CAT Reporters by imposing smaller fees on those CAT Reporters with less market share or message traffic. In addition, the fee structure takes into consideration distinctions in securities trading operations of CAT Reporters, including ATSs trading OTC Equity Securities, and equity and options market makers. Moreover, the Exchange 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 (other than Execution Venue ATSs) and Execution Venues maintains the greatest level of comparability across the funding model. For example, the cost allocation establishes fees for the largest Industry Members (i.e., those Industry Members in Tier 1) that are comparable to the largest Equity Execution Venues and Options Execution Venues (i.e., those Execution Venues in Tier 1). Furthermore, the allocation of total CAT cost recovery recognizes the difference in the number of CAT Reporters that are Industry Members (other than Execution Venue ATSs) versus CAT Reporters that are Execution Venues. Similarly, the 67%/33% division between Equity Execution Venues and Options Execution Venues also helps to provide fee comparability for the largest CAT Reporters. Finally, the Exchange 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. For the foregoing reasons, the Exchange believes that the proposal is consistent with the Act. B. Self-Regulatory Organization's Statement on Burden on Competition Section 6(b)(8) of the Act \94\ require that the Exchange's rules not impose any burden on competition that is not necessary or appropriate. The Exchange 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. The Exchange notes that the proposed rule change implements provisions of the CAT NMS Plan approved by the Commission, and is designed to assist the Exchange in meeting its regulatory obligations pursuant to the Plan. Similarly, all national securities exchanges and FINRA are proposing a similar proposed fee change 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. --------------------------------------------------------------------------- \94\ 15 U.S.C. 78f(b)(8). --------------------------------------------------------------------------- Moreover, as previously described, the Exchange 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 [[Page 58995]] will pay lower fees. Therefore, given that there is generally a relationship between message traffic and market share to the CAT Reporter's size, smaller CAT Reporters generally pay less than larger CAT Reporters. Accordingly, the Exchange does not believe that the CAT Fees would have a disproportionate effect on smaller or larger CAT Reporters. In addition, ATSs and exchanges will pay the same fees based on market share. Therefore, the Exchange does not believe that the fees will impose any burden on the competition between ATSs and exchanges. Accordingly, the Exchange 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. In addition, the Exchange believes that the proposed changes to the Original Proposal, as discussed above in detail, address certain competitive concerns raised by commenters, including concerns related to, among other things, smaller ATSs, ATSs trading OTC Equity Securities, market making quoting and fee comparability. As discussed above, the Exchange believes that this Amendment addresses the competitive concerns raised by commenters. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were solicited or received with respect to the proposed rule change. III. Solicitation of Comments on Amendment No. 1 Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment No. 1 is consistent with the Act. In particular, the Commission seeks comment on the following: Allocation of Costs (1) Commenters' views as to whether the allocation of CAT costs is consistent with the funding principle expressed in the CAT NMS Plan that requires the Operating Committee to ``avoid any disincentives such as placing an inappropriate burden on competition and a reduction in market quality.'' \95\ --------------------------------------------------------------------------- \95\ Section 11.2(e) of the CAT NMS Plan. --------------------------------------------------------------------------- (2) Commenters' views as to whether the allocation of 25% of CAT costs to the Execution Venues (including all the Participants) and 75% to Industry Members, will incentivize or disincentivize the Participants to effectively and efficiently manage the CAT costs incurred by the Participants since they will only bear 25% of such costs. (3) Commenters' views on the determination to allocate 75% of all costs incurred by the Participants from November 21, 2016 to November 21, 2017 to Industry Members (other than Execution Venue ATSs), when such costs are development and build costs and when Industry Member reporting is scheduled to commence a year later, including views on whether such ``fees, costs and expenses . . . [are] fairly and reasonably shared among the Participants and Industry Members'' in accordance with the CAT NMS Plan.\96\ --------------------------------------------------------------------------- \96\ Section 11.1(c) of the CAT NMS Plan. --------------------------------------------------------------------------- (4) Commenters' views on whether an analysis of the ratio of the expected Industry Member-reported CAT messages to the expected SRO- reported CAT messages should be the basis for determining the allocation of costs between Industry Members and Execution Venues.\97\ --------------------------------------------------------------------------- \97\ The Notice for the CAT NMS Plan did not provide a comprehensive count of audit trail message traffic from different regulatory data sources, but the Commission did estimate the ratio of all SRO audit trail messages to OATS audit trail messages to be 1.9431. See Securities Exchange Act Release No. 77724 (April 27, 2016), 81 FR 30613, 30721 n.919 and accompanying text (May 17, 2016). --------------------------------------------------------------------------- (5) Any additional data analysis on the allocation of CAT costs, including any existing supporting evidence. Comparability (6) Commenters' views on the shift in the standard used to assess the comparability of CAT Fees, with the emphasis now on comparability of individual entities instead of affiliated entities, including views as to whether this shift is consistent with the funding principle expressed in the CAT NMS Plan that requires the Operating Committee to establish a fee structure in which the fees charged to ``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).'' \98\ --------------------------------------------------------------------------- \98\ Section 11.2(c) of the CAT NMS Plan. --------------------------------------------------------------------------- (7) Commenters' views as to whether the reduction in the number of tiers for Industry Members (other than Execution Venue ATSs) from nine to seven, the revised allocation of CAT costs between Equity Execution Venues and Options Execution Venues from a 75%/25% split to a 67%/33% split, and the adjustment of all tier percentages and recovery allocations achieves comparability across individual entities, and whether these changes should have resulted in a change to the allocation of 75% of total CAT costs to Industry Members (other than Execution Venue ATSs) and 25% of such costs to Execution Venues. Discounts (8) Commenters' views as to whether the discounts for options market-makers, equities market-makers, and Equity ATSs trading OTC Equity Securities are clear, reasonable, and consistent with the funding principle expressed in the CAT NMS Plan that requires the Operating Committee to ``avoid any disincentives such as placing an inappropriate burden on competition and a reduction in market quality,'' \99\ including views as to whether the discounts for market- makers limit any potential disincentives to act as a market-maker and/ or to provide liquidity due to CAT fees. --------------------------------------------------------------------------- \99\ Section 11.2(e) of the CAT NMS Plan. --------------------------------------------------------------------------- Calculation of Costs and Imposition of CAT Fees (9) Commenters' views as to whether the amendment provides sufficient information regarding the amount of costs incurred from November 21, 2016 to November 21, 2017, particularly, how those costs were calculated, how those costs relate to the proposed CAT Fees, and how costs incurred after November 21, 2017 will be assessed upon Industry Members and Execution Venues; (10) Commenters' views as to whether the timing of the imposition and collection of CAT Fees on Execution Venues and Industry Members is reasonably related to the timing of when the Company expects to incur such development and implementation costs.\100\ --------------------------------------------------------------------------- \100\ Section 11.1(c) of the CAT NMS Plan. --------------------------------------------------------------------------- (11) Commenters' views on dividing CAT costs equally among each of the Participants, and then each Participant charging its own members as it deems appropriate, taking into consideration the possibility of inconsistency in charges, the potential for lack of transparency, and the impracticality of multiple SROs submitting invoices for CAT charges. [[Page 58996]] Burden on Competition and Barriers to Entry (12) Commenters' views as to whether the allocation of 75% of CAT costs to Industry Members (other than Execution Venue ATSs) imposes any burdens on competition to Industry Members, including views on what baseline competitive landscape the Commission should consider when analyzing the proposed allocation of CAT costs. (13) Commenters' views on the burdens on competition, including the relevant markets and services and the impact of such burdens on the baseline competitive landscape in those relevant markets and services. (14) Commenters' views on any potential burdens imposed by the fees on competition between and among CAT Reporters, including views on which baseline markets and services the fees could have competitive effects on and whether the fees are designed to minimize such effects. (15) Commenters' general views on the impact of the proposed fees on economies of scale and barriers to entry. (16) Commenters' views on the baseline economies of scale and barriers to entry for Industry Members and Execution Venues and the relevant markets and services over which these economies of scale and barriers to entry exist. (17) Commenters' views as to whether a tiered fee structure necessarily results in less active tiers paying more per unit than those in more active tiers, thus creating economies of scale, with supporting information if possible. (18) Commenters' views as to how the level of the fees for the least active tiers would or would not affect barriers to entry. (19) Commenters' views on whether the difference between the cost per unit (messages or market share) in less active tiers compared to the cost per unit in more active tiers creates regulatory economies of scale that favor larger competitors and, if so: (a) How those economies of scale compare to operational economies of scale; and (b) Whether those economies of scale reduce or increase the current advantages enjoyed by larger competitors or otherwise alter the competitive landscape. (20) Commenters' views on whether the fees could affect competition between and among national securities exchanges and FINRA, in light of the fact that implementation of the fees does not require the unanimous consent of all such entities, and, specifically: (a) Whether any of the national securities exchanges or FINRA are disadvantaged by the fees; and (b) If so, whether any such disadvantages would be of a magnitude that would alter the competitive landscape. (21) Commenters' views on any potential burden imposed by the fees on competitive quoting and other liquidity provision in the market, including, specifically: (a) Commenters' views on the kinds of disincentives that discourage liquidity provision and/or disincentives that the Commission should consider in its analysis; (b) Commenters' views as to whether the fees could disincentivize the provision of liquidity; and (c) Commenters' views as to whether the fees limit any disincentives to provide liquidity. (22) Commenters' views as to whether the amendment adequately responds to and/or addresses comments received on related filings. 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-NYSEARCA-2017-52 on the subject line. Paper Comments Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090. All submissions should refer to File Number SR-NYSEARCA-2017-52. 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 website (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 website viewing and printing in the Commission's Public Reference Room, 100 F Street NE, Washington, DC 20549 on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NYSEARCA-2017-52 and should be submitted on or before January 4, 2018. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.\101\ --------------------------------------------------------------------------- \101\ 17 CFR 200.30-3(a)(12). --------------------------------------------------------------------------- Robert W. Errett, Deputy Secretary. [FR Doc. 2017-27024 Filed 12-13-17; 8:45 am] BILLING CODE 8011-01-P
![Federal Register / Vol. 82, No. 239 / Thursday, December 14, 2017 / Notices 58971
should be submitted on or before and a response to comments from the Exchange.9 On November 9, 2017, the
January 4, 2018. Participants.5 On June 30, 2017, the Commission extended the time period
For the Commission, by the Division of Commission temporarily suspended and within which to approve the proposed
Trading and Markets, pursuant to delegated initiated proceedings to determine rule change or disapprove the proposed
authority.98 whether to approve or disapprove the rule change to January 14, 2018.10 The
Robert W. Errett, proposed rule change.6 The Commission Commission is publishing this notice to
Deputy Secretary. thereafter received seven comment solicit comments from interested
[FR Doc. 2017–27009 Filed 12–13–17; 8:45 am] letters,7 and a response to comments persons on Amendment No. 1.11
BILLING CODE 8011–01–P
from the Participants.8 On October 25,
2017, the Exchange filed Amendment I. Self-Regulatory Organization’s
No. 1 to the proposed rule change, as Statement of the Terms of Substance of
SECURITIES AND EXCHANGE described in Items I and II below, which the Proposed Rule Change
COMMISSION Items have been prepared by the
The Exchange proposes to amend the
[Release No. 34–82264; File No. SR– cboe2017040-1819670-154195.pdf; Letter from NYSE Arca Equities Fees and Charges
NYSEARCA–2017–52] Stuart J. Kaswell, Executive Vice President and (‘‘Arca Fee Schedule’’), and the NYSE
Managing Director, General Counsel, Managed Arca Options Fees and Charges (‘‘Arca
Self-Regulatory Organizations; NYSE Funds Association, to Brent J. Fields, Secretary,
Arca, Inc.; Notice of Filing of Commission (dated June 23, 2017), available at:
Options Fee Schedule’’), to adopt the
Amendment No. 1 to a Proposed Rule https://www.sec.gov/comments/sr-finra-2017-011/ fees for Industry Members related to the
Change Amending the Consolidated finra2017011-1822454-154283.pdf; and Letter from National Market System Plan Governing
Suzanne H. Shatto, Investor, to Commission (dated
Audit Trail Funding Fees June 27, 2017), available at: https://www.sec.gov/
the Consolidated Audit Trail (the ‘‘CAT
comments/sr-batsedgx-2017-22/batsedgx201722- NMS Plan’’ or ‘‘Plan’’).12 The Exchange
December 11, 2017. 154443.pdf. The Commission also received a files this proposed rule change (the
On May 10, 2017, NYSE Arca, Inc. comment letter which is not pertinent to these ‘‘Amendment’’) to amend the Original
(‘‘Exchange’’ or ‘‘SRO’’) filed with the proposed rule changes. See Letter from Christina
Crouch, Smart Ltd., to Brent J. Fields, Secretary, Proposal. This Amendment replaces the
Securities and Exchange Commission Commission (dated June 5, 2017), available at: Original Proposal in its entirety, and
(‘‘Commission’’), pursuant to Section https://www.sec.gov/comments/sr-batsbzx-2017-38/ also describes the changes from the
19(b)(1) of the Securities Exchange Act batsbzx201738-1785545-153152.htm.
Original Proposal. The proposed rule
of 1934 (‘‘Act’’) 1 and Rule 19b–4 5 See Letter from CAT NMS Plan Participants to
Brent J. Fields, Secretary, Commission (dated June change is available on the Exchange’s
thereunder,2 a proposed rule change to
29, 2017), available at: https://www.sec.gov/ website at www.nyse.com, at the
adopt a fee schedule to establish the fees comments/sr-batsbyx-2017-11/batsbyx201711-
for Industry Members related to the principal office of the Exchange, and at
1832632-154584.pdf.
National Market System Plan Governing 6 See Securities Exchange Act Release No. 81067 the Commission’s Public Reference
the Consolidated Audit Trail (‘‘CAT (June 30, 2017), 82 FR 31656 (July 7, 2017). Room.
7 See Letter from W. Hardy Callcott, Partner,
NMS Plan’’). The proposed rule change
Sidley Austin LLP, to Brent J. Fields, Secretary,
was published in the Federal Register Commission (dated July 27, 2017), available at: 9 Amendment No. 1 to the proposed rule change
for comment on May 22, 2017.3 The https://www.sec.gov/comments/sr-batsbyx-2017-11/ replaces and supersedes the Original Proposal in its
Commission received seven comment batsbyx201711-2148338-157737.pdf; Letter from entirety.
letters on the proposed rule change,4 Kevin Coleman, General Counsel and Chief 10 See Securities Exchange Act Release No. 82049
Compliance Officer, Belvedere Trading LLC, to
Brent J. Fields, Secretary, Commission (dated July (November 9, 2017), 82 FR 53549 (November 16,
98 17 CFR 200.30–3(a)(12). 28, 2017), available at: https://www.sec.gov/ 2017).
1 15 U.S.C. 78s(b)(1). comments/sr-batsbyx-2017-11/batsbyx201711- 11 The Commission notes that on November 29,
2 17 CFR 240.19b–4.
2148360-157740.pdf; Letter from Joanna Mallers, 2017, the Exchange filed Amendment No. 2 to the
3 See Securities Exchange Act Release No. 80698 Secretary, FIA Principal Traders Group, to Brent J. proposed rule change. Amendment No. 2 is a partial
(May 16, 2017), 82 FR 23457 (May 22, 2017) Fields, Secretary, Commission (dated July 28, 2017), amendment to the proposed rule change, as
(‘‘Original Proposal’’). available at: https://www.sec.gov/comments/sr- amended by Amendment No. 1. Amendment No. 2
4 Since the CAT NMS Plan Participants’ proposed batsbyx-2017-11/batsbyx201711-2151228-
proposes to change the parenthetical regarding the
rule changes to adopt fees to be charged to Industry 157745.pdf; Letter from Theodore R. Lazo,
Managing Director and Associate General Counsel, OTC Equity Securities discount in paragraph (b)(2)
Members to fund the consolidated audit trail are
substantively identical, the Commission is SIFMA, to Brent J. Fields, Secretary, Commission of the proposed fee schedule from ‘‘with a discount
considering all comments received on the proposed (dated July 28, 2017), available at: https:// for Equity ATSs exclusively trading OTC Equity
rule changes regardless of the comment file to www.sec.gov/comments/sr-batsbyx-2017-11/ Securities based on the average shares per trade
which they were submitted. See text accompanying batsbyx201711-2150977-157744.pdf; Letter from ratio between NMS Stocks and OTC Equity
notes 13–16 infra, for a list of the CAT NMS Plan Stuart J. Kaswell, Executive Vice President and Securities’’ to ‘‘with a discount for OTC Equity
Participants. See Letter from Theodore R. Lazo, Managing Director, General Counsel, Managed Securities market share of Equity ATSs trading OTC
Managing Director and Associate General Counsel, Funds Association, to Brent J. Fields, Secretary, Equity Securities based on the average shares per
Securities Industry and Financial Markets Commission (dated July 28, 2017), available at: trade ratio between NMS Stocks and OTC Equity
Association, to Brent J. Fields, Secretary, https://www.sec.gov/comments/sr-batsbyx-2017-11/
Securities.’’ Amendment No. 2 also deletes footnote
Commission (dated June 6, 2017), available at: batsbyx201711-2150818-157743.pdf; Letter from
John Kinahan, Chief Executive Officer, Group One 45 in Section 3(a) on page 23 of the First
https://www.sec.gov/comments/sr-batsbzx-2017-38/
batsbzx201738-1788188-153228.pdf; Letter from Trading, L.P., to Brent J. Fields, Secretary, Amendment which reads, ‘‘The discount is only
Patricia L. Cerny and Steven O’Malley, Compliance Commission (dated August 10, 2017), available at: applied to the market share of Execution Venue
Consultants, to Brent J. Fields, Secretary, https://www.sec.gov/comments/sr-finra-2017-011/ ATSs exclusively trading OTC Equity Securities.
Commission (dated June 12, 2017), available at: finra2017011-2214568-160619.pdf; Letter from Accordingly, FINRA’s market share, which includes
https://www.sec.gov/comments/sr-cboe-2017-040/ Joseph Molluso, Executive Vice President and CFO, market share from the OTC Reporting Facility, is
cboe2017040-1799253-153675.pdf; Letter from Virtu Financial, to Brent J. Fields, Commission not discounted as a result of its OTC Equity
sradovich on DSK3GMQ082PROD with NOTICES
Daniel Zinn, General Counsel, OTC Markets Group (dated August 18, 2017), available at: https:// Securities activity,’’ as the footnote is erroneous and
Inc., to Eduardo A. Aleman, Assistant Secretary, www.sec.gov/comments/sr-finra-2017-011/ was included inadvertently. See Securities
Commission (dated June 13, 2017), available at: finra2017011-2238648-160830.pdf.
8 See Letter from Michael Simon, Chair, CAT
Exchange Act Release No. 82265 (December 11,
https://www.sec.gov/comments/sr-finra-2017-011/
2017).
finra2017011-1801717-153703.pdf; Letter from NMS Plan Operating Committee, to Brent J. Fields,
12 Unless otherwise specified, capitalized terms
Joanna Mallers, Secretary, FIA Principal Traders Commission, Secretary (dated November 2, 2017),
Group, to Brent J. Fields, Secretary, Commission available at: https://www.sec.gov/comments/sr- used in this rule filing are defined as set forth
(dated June 22, 2017), available at: https:// batsbyx-2017-11/batsbyx201711-2674608- herein, the CAT Compliance Rule Series or in the
www.sec.gov/comments/sr-cboe-2017-040/ 161412.pdf. CAT NMS Plan.
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![58974 Federal Register / Vol. 82, No. 239 / Thursday, December 14, 2017 / Notices
Venue ATSs) through fixed tier fees permitting CAT Reporters to reasonably applicable) from CAT Reporters in each
based on message traffic. In its order predict their payment obligations for tier. Therefore, Industry Members
approving the CAT NMS Plan, the budgeting purposes. Additionally, a generating the most message traffic will
Commission determined that the strictly variable or metered funding be in the higher tiers, and will be
proposed funding model was model based on message volume would charged a higher fee. Industry Members
‘‘reasonable’’ 29 and ‘‘reflects a be far more likely to affect market with lower levels of message traffic will
reasonable exercise of the Participants’ behavior and place an inappropriate be in lower tiers and will be assessed a
funding authority to recover the burden on competition. lower fee for the CAT.37
Participants’ costs related to the In addition, reviews from varying Correspondingly, Execution Venues
CAT.’’ 30 time periods of current broker-dealer with the highest market shares will be
More specifically, the Commission order and trading data submitted under in the top tier, and will be charged
stated in approving the CAT NMS Plan existing reporting requirements showed higher fees. Execution Venues with the
that ‘‘[t]he Commission believes that the a wide range in activity among broker- lowest market shares will be in the
proposed funding model is reasonably dealers, with a number of broker-dealers lowest tier and will be assessed lower
designed to allocate the costs of the CAT submitting fewer than 1,000 orders per fees for the CAT.38
between the Participants and Industry month and other broker-dealers The CAT NMS Plan states that
Members.’’ 31 The Commission further submitting millions and even billions of Industry Members (other than Execution
noted the following: orders in the same period. Accordingly, Venue ATSs) will be charged based on
The Commission believes that the the CAT NMS Plan includes a tiered message traffic, and that Execution
proposed funding model reflects a approach to fees. The tiered approach Venues will be charged based on market
reasonable exercise of the Participants’ helps ensure that fees are equitably share.39 While there are multiple factors
funding authority to recover the allocated among similarly situated CAT that contribute to the cost of building,
Participants’ costs related to the CAT. Reporters and furthers the goal of maintaining and using the CAT,
The CAT is a regulatory facility jointly lessening the impact on smaller firms.34 processing and storage of incoming
owned by the Participants and . . . the In addition, in choosing a tiered fee message traffic is one of the most
Exchange Act specifically permits the structure, the Operating Committee significant cost drivers for the CAT.40
Participants to charge their members concluded that the variety of benefits Thus, the CAT NMS Plan provides that
fees to fund their self-regulatory offered by a tiered fee structure, the fees payable by Industry Members
obligations. The Commission further discussed above, outweighed the fact (other than Execution Venue ATSs) will
believes that the proposed funding that CAT Reporters in any particular tier be based on the message traffic
model is designed to impose fees would pay different rates per message generated by such Industry Member.41
reasonably related to the Participants’ traffic order event or per market share In contrast to Industry Members,
self-regulatory obligations because the (e.g., an Industry Member with the which determine the degree to which
fees would be directly associated with largest amount of message traffic in one they produce message traffic that
the costs of establishing and tier would pay a smaller amount per constitute CAT Reportable Events, the
maintaining the CAT, and not unrelated order event than an Industry Member in CAT Reportable Events of the Execution
SRO services.32 the same tier with the least amount of Venues are largely derivative of
Accordingly, the funding model message traffic). Such variation is the quotations and orders received from
approved by the Operating Committee natural result of a tiered fee structure.35 Industry Members that they are required
imposes fees on both Participants and The Operating Committee considered to display. The business model for
Industry Members. several approaches to developing a Execution Venues (other than FINRA),
As discussed in Appendix C of the tiered model, including defining fee however, is focused on executions on
CAT NMS Plan, in developing and tiers based on such factors as size of their markets. As a result, the Operating
approving the approved funding model, firm, message traffic or trading dollar Committee believes that it is more
the Operating Committee considered the volume. After analyzing the alternatives, equitable to charge Execution Venues
advantages and disadvantages of a it was concluded that the tiering should based on their market share rather than
variety of alternative funding and cost be based on message traffic which will their message traffic.
allocation models before selecting the reflect the relative impact of CAT Focusing on message traffic would
proposed model.33 After analyzing the Reporters on the CAT System. make it more difficult to draw
various alternatives, the Operating Accordingly, the CAT NMS Plan distinctions between large and small
Committee determined that the contemplates that costs will be allocated Execution Venues and, in particular,
proposed tiered, fixed fee funding across the CAT Reporters on a tiered between large and small options
model provides a variety of advantages basis in order to allocate higher costs to exchanges. For instance, the Operating
in comparison to the alternatives. those CAT Reporters that contribute Committee analyzed the message traffic
In particular, the fixed fee model, as more to the costs of creating, of Execution Venues and Industry
opposed to a variable fee model, implementing and maintaining the CAT Members for the period of April 2017 to
provides transparency, ease of and lower costs to those that contribute June 2017 and placed all CAT Reporters
calculation, ease of billing and other less.36 The fees to be assessed at each into a nine-tier framework (i.e., a single
administrative functions, and tier are calculated so as to recoup a tier may include both Execution Venues
predictability of a fixed fee. Such factors proportion of costs appropriate to the and Industry Members). The Operating
are crucial to estimating a reliable message traffic or market share (as Committee’s analysis found that the
sradovich on DSK3GMQ082PROD with NOTICES
revenue stream for the Company and for 34 Section B.7, Appendix C of the CAT NMS Plan,
majority of exchanges (15 total) were
Approval Order at 85006.
29 Approval Order at 84796. 37 Id.
35 Moreover, as the SEC noted in approving the
30 Id.at 84794. 38 Id.
CAT NMS Plan, ‘‘[t]he Participants also have
31 Id. at 84795. 39 Section11.3(a) and (b) of the CAT NMS Plan.
offered a reasonable basis for establishing a funding
32 Id. at 84794. model based on broad tiers, in that it may be easier 40 SectionB.7, Appendix C of the CAT NMS Plan,
33 Section B.7, Appendix C of the CAT NMS Plan, to implement.’’ Approval Order at 84796. Approval Order at 85005.
Approval Order at 85006. 36 Approval Order at 85005. 41 Section 11.3(b) of the CAT NMS Plan.
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grouped in Tiers 1 and 2. Moreover, members—the Participants. First, the equity market maker message traffic in
virtually all of the options exchanges Company will operate on a ‘‘break- recognition of their role in the securities
were in Tiers 1 and 2.42 Given the even’’ basis, with fees imposed to cover markets. Furthermore, the funding
resulting concentration of options costs and an appropriate reserve. Any model creates separate tiers for Equity
exchanges in Tiers 1 and 2 under this surpluses will be treated as an and Options Execution Venues due to
approach, the analysis shows that a operational reserve to offset future fees the different trading characteristics of
funding model for Execution Venues and will not be distributed to the those markets.
based on message traffic would make it Participants as profits.45 To ensure that Finally, by adopting a CAT-specific
more difficult to distinguish between the Participants’ operation of the CAT fee, the Operating Committee will be
large and small options exchanges, as will not contribute to the funding of fully transparent regarding the costs of
compared to the proposed fee approach their other operations, Section 11.1(c) of the CAT. Charging a general regulatory
that bases fees for Execution Venues on the CAT NMS Plan specifically states fee, which would be used to cover CAT
market share. that ‘‘[a]ny surplus of the Company’s costs as well as other regulatory costs,
The CAT NMS Plan’s funding model revenues over its expenses shall be would be less transparent than the
also is structured to avoid a ‘‘reduction treated as an operational reserve to selected approach of charging a fee
in market quality.’’ 43 The tiered, fixed offset future fees.’’ In addition, as set designated to cover CAT costs only.
fee funding model is designed to limit forth in Article VIII of the CAT NMS A full description of the funding
the disincentives to providing liquidity Plan, the Company ‘‘intends to operate model is set forth below. This
to the market. For example, the in a manner such that it qualifies as a description includes the framework for
Operating Committee expects that a firm ‘business league’ within the meaning of the funding model as set forth in the
that has a large volume of quotes would Section 501(c)(6) of the [Internal CAT NMS Plan, as well as the details as
likely be categorized in one of the upper Revenue] Code.’’ To qualify as a to how the funding model will be
tiers, and would not be assessed a fee business league, an organization must applied in practice, including the
for this traffic directly as they would ‘‘not [be] organized for profit and no number of fee tiers and the applicable
under a more directly metered model. In part of the net earnings of [the fees for each tier. The complete funding
contrast, strictly variable or metered organization can] inure[] to the benefit model is described below, including
funding models based on message of any private shareholder or those fees that are to be paid by the
volume are far more likely to affect individual.’’ 46 As the SEC stated when Participants. The proposed
market behavior. In approving the CAT approving the CAT NMS Plan, ‘‘the Consolidated Audit Trail Funding Fees,
NMS Plan, the SEC stated that ‘‘[t]he Commission believes that the however, do not apply to the
Participants also offered a reasonable Company’s application for Section Participants; the proposed Consolidated
basis for establishing a funding model 501(c)(6) business league status Audit Trail Funding Fees only apply to
based on broad tiers, in that it may be addresses issues raised by commenters Industry Members. The CAT Fees for
. . . less likely to have an incremental about the Plan’s proposed allocation of Participants will be imposed separately
deterrent effect on liquidity profit and loss by mitigating concerns by the Operating Committee pursuant to
provision.’’ 44 that the Company’s earnings could be the CAT NMS Plan.
The funding model also is structured used to benefit individual
to avoid a reduction in market quality (A) Funding Principles
Participants.’’ 47 The Internal Revenue
because it discounts Options Market Service recently has determined that the Section 11.2 of the CAT NMS Plan
Maker and equity market maker quotes Company is exempt from federal income sets forth the principles that the
when calculating message traffic for tax under Section 501(c)(6) of the Operating Committee applied in
Options Market Makers and equity Internal Revenue Code. establishing the funding for the
market makers, respectively. As The funding model also is structured Company. The Operating Committee has
discussed in more detail below, the to take into account distinctions in the considered these funding principles as
Operating Committee determined to securities trading operations of well as the other funding requirements
discount the Options Market Maker Participants and Industry Members. For set forth in the CAT NMS Plan and in
quotes by the trade to quote ratio for example, the Operating Committee Rule 613 in developing the proposed
options when calculating message traffic designed the model to address the funding model. The following are the
for Options Market Makers. Similarly, to different trading characteristics in the funding principles in Section 11.2 of the
avoid disincentives to quoting behavior OTC Equity Securities market. CAT NMS Plan:
on the equities side as well, the Specifically, the Operating Committee • To create transparent, predictable
Operating Committee determined to proposes to discount the market share of revenue streams for the Company that
discount equity market maker quotes by Execution Venue ATSs exclusively are aligned with the anticipated costs to
the trade to quote ratio for equities trading OTC Equity Securities as well as build, operate and administer the CAT
when calculating message traffic for the market share of the FINRA ORF by and other costs of the Company;
equity market makers. The proposed the average shares per trade ratio • To establish an allocation of the
discounts recognize the value of the between NMS Stocks and OTC Equity Company’s related costs among
market makers’ quoting activity to the Securities to adjust for the greater Participants and Industry Members that
market as a whole. number of shares being traded in the is consistent with the Exchange Act,
The CAT NMS Plan is further OTC Equity Securities market, which is taking into account the timeline for
structured to avoid potential conflicts generally a function of a lower per share implementation of the CAT and
raised by the Operating Committee
sradovich on DSK3GMQ082PROD with NOTICES
price for OTC Equity Securities when distinctions in the securities trading
determining fees applicable to its own compared to NMS Stocks. In addition, operations of Participants and Industry
the Operating Committee also proposes Members and their relative impact upon
42 The Operating Committee notes that this
to discount Options Market Maker and the Company’s resources and
analysis did not place MIAX PEARL in Tier 1 or
Tier 2 since the exchange commenced trading on
operations;
February 6, 2017. 45 Id.
at 84792. • To establish a tiered fee structure in
43 Section 11.2(e) of the CAT NMS Plan. 46 26U.S.C. 501(c)(6). which the fees charged to: (i) CAT
44 Approval Order at 84796. 47 Approval Order at 84793. Reporters that are Execution Venues,
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TRACEABILITY OF TOTAL CAT FEES—Continued
Estimated CAT
Industry Total
Type number of fees paid
Member tier recovery
members annually
Total .......................................................................................................... ........................ 15 ........................ 4,182,828
Total .................................................................................................. ........................ ........................ ........................ 50,700,000
Excess 58 ........................................................................................... ........................ ........................ ........................ 7,656
(F) Comparability of Fees least an annual basis and shall make any message traffic, as applicable, from the
The funding principles require a changes to such fee schedule that it prior three months. For the initial tier
funding model in which the fees deems appropriate. The Operating assignments, the Company will
charged to the CAT Reporters with the Committee is authorized to review such calculate the relevant tier for each CAT
most CAT-related activity (measured by fee schedule on a more regular basis, but Reporter using the three months of data
market share and/or message traffic, as shall not make any changes on more prior to the commencement date. As
applicable) are generally comparable than a semi-annual basis unless, with the initial tier assignment, for the
(where, for these comparability pursuant to a Supermajority Vote, the tri-monthly reassignments, the
purposes, the tiered fee structure takes Operating Committee concludes that Company will calculate the relevant tier
into consideration affiliations between such change is necessary for the using the three months of data prior to
or among CAT Reporters, whether adequate funding of the Company.’’ the relevant tri-monthly date. Any
Execution Venue and/or Industry With such reviews, the Operating movement of CAT Reporters between
Members). Accordingly, in creating the Committee will review the distribution tiers will not change the criteria for each
model, the Operating Committee sought of Industry Members and Execution tier or the fee amount corresponding to
to establish comparable fees for the top Venues across tiers, and make any each tier.
tier of Industry Members (other than updates to the percentage of CAT In performing the tri-monthly
Execution Venue ATSs), Equity Reporters allocated to each tier as may reassignments, the assignment of CAT
Execution Venues and Options be necessary. In addition, the reviews Reporters in each assigned tier is
Execution Venues. Specifically, each will evaluate the estimated ongoing relative. Therefore, a CAT Reporter’s
Tier 1 CAT Reporter would be required CAT costs and the level of the operating assigned tier will depend, not only on
to pay a quarterly fee of approximately reserve. To the extent that the total CAT its own message traffic or market share,
$81,000. costs decrease, the fees would be but also on the message traffic/market
adjusted downward, and to the extent share across all CAT Reporters. For
(G) Billing Onset that the total CAT costs increase, the example, the percentage of Industry
Under Section 11.1(c) of the CAT fees would be adjusted upward.59 Members (other than Execution Venue
NMS Plan, to fund the development and Furthermore, any surplus of the ATSs) in each tier is relative such that
implementation of the CAT, the Company’s revenues over its expenses is such Industry Member’s assigned tier
Company shall time the imposition and to be included within the operational will depend on message traffic
collection of all fees on Participants and reserve to offset future fees. The generated across all CAT Reporters as
Industry Members in a manner limitations on more frequent changes to well as the total number of CAT
reasonably related to the timing when the fee, however, are intended to Reporters. The Operating Committee
the Company expects to incur such provide budgeting certainty for the CAT will inform CAT Reporters of their
development and implementation costs. Reporters and the Company.60 To the assigned tier every three months
The Company is currently incurring extent that the Operating Committee following the periodic tiering process,
such development and implementation approves changes to the number of tiers as the funding model will compare an
costs and will continue to do so prior in the funding model or the fees individual CAT Reporter’s activity to
to the commencement of CAT reporting assigned to each tier, then the Exchange that of other CAT Reporters in the
and thereafter. In accordance with the will file such changes with the SEC marketplace.
CAT NMS Plan, all CAT Reporters, pursuant to Section 19(b) of the The following demonstrates a tier
including both Industry Members and Exchange Act, and any such changes reassignment. In accordance with the
Execution Venues (including will become effective in accordance funding model, the top 75% of Options
Participants), will be invoiced as with the requirements of Section 19(b). Execution Venues in market share are
promptly as possible following the latest categorized as Tier 1 while the bottom
of the operative date of the Consolidated (I) Initial and Periodic Tier
Reassignments 25% of Options Execution Venues in
Audit Trail Funding Fees for each of the market share are categorized as Tier 2.
Participants and the operative date of The Operating Committee has In the sample scenario below, Options
the Plan amendment adopting CAT Fees determined to calculate fee tiers every Execution Venue L is initially
for Participants. three months based on market share or categorized as a Tier 2 Options
Execution Venue in Period A due to its
sradovich on DSK3GMQ082PROD with NOTICES
(H) Changes to Fee Levels and Tiers 59 The CAT Fees are designed to recover the costs
associated with the CAT. Accordingly, CAT Fees market share. When market share is
Section 11.3(d) of the CAT NMS Plan
would not be affected by increases or decreases in recalculated for Period B, the market
states that ‘‘[t]he Operating Committee other non-CAT expenses incurred by the share of Execution Venue L increases,
shall review such fee schedule on at Participants, such as any changes in costs related and it is therefore subsequently
to the retirement of existing regulatory systems,
58 The amount in excess of the total CAT costs such as OATS. reranked and reassigned to Tier 1 in
will contribute to the gradual accumulation of the 60 Section B.7, Appendix C of the CAT NMS Plan, Period B. Correspondingly, Options
target operating reserve of $11.425 million. Approval Order at 85006. Execution Venue K, initially a Tier 1
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CAT Fee corresponding to the tier responsibility as a function of the Plan until such fee is paid at a per annum
assigned by the Company for such Processor or another administrator. To rate equal to the lesser of: (i) The Prime
Industry Member for that quarter: implement the payment process to be Rate plus 300 basis points; or (ii) the
adopted by the Operating Committee, maximum rate permitted by applicable
Percentage paragraph (c)(1) of the proposed rule law.
Quarterly
Tier of Industry change states that the Company will
CAT fee (D) Sunset Provision
Members
provide each Industry Member with one
1 ................ 0.900 $81,483 invoice each quarter for its CAT Fees as The Operating Committee has
2 ................ 2.150 59,055 determined pursuant to paragraph (b) of determined to require that the CAT Fees
3 ................ 2.800 40,899 the proposed rule change, regardless of automatically sunset two years from the
4 ................ 7.750 25,566 whether the Industry Member is a operative date of the CAT NMS Plan
5 ................ 8.300 7,428 member of multiple self-regulatory amendment adopting CAT Fees for
6 ................ 18.800 1,968 organizations. Paragraph (c)(1) further Participants. Accordingly, the Exchange
7 ................ 59.300 105 proposes to adopt paragraph (d) of the
states that each Industry Member will
pay its CAT Fees to the Company via proposed rule change, which states that
Paragraph (b)(2) of the proposed rule ‘‘[t]hese Consolidated Audit Trailing
the centralized system for the collection
change sets forth the CAT Fees Funding Fees will automatically expire
of CAT Fees established by the
applicable to Equity ATSs.62 These are two years after the operative date of the
Company in the manner prescribed by
the same fees that Participants that trade amendment of the CAT NMS Plan that
the Company. The Exchange will
NMS Stocks and/or OTC Equity adopts CAT fees for the Participants.’’
provide Industry Members with details
Securities will pay. Specifically,
regarding the manner of payment of (4) Changes to Original Proposal
paragraph (b)(2) states that the Company
CAT Fees by Trader Update.
will assign each Equity ATS to a fee tier The proposed funding model set forth
All CAT fees will be billed and
once every quarter, where such tier in this Amendment is a revised version
collected centrally through the
assignment is calculated by ranking of the Original Proposal. The
Company via the Plan Processor.
each Equity Execution Venue based on Commission received a number of
Although each Participant will adopt its
its total market share of NMS Stocks and comment letters in response to the
own fee schedule regarding CAT Fees,
OTC Equity Securities (with a discount Original Proposal.64 The SEC suspended
no CAT Fees or portion thereof will be
for Equity ATSs exclusively trading the Original Proposal and instituted
collected by the individual Participants.
OTC Equity Securities based on the proceedings to determine whether to
Each Industry Member will receive from
average shares per trade ratio between approve or disapprove it.65 Pursuant to
the Company one invoice for its
NMS Stocks and OTC Equity Securities) those proceedings, additional comment
applicable CAT fees, not separate
for the three months prior to the letters were submitted regarding the
invoices from each Participant of which
quarterly tier calculation day and proposed funding model.66 In
it is a member. The Industry Members
assigning each Equity ATS to a tier developing this Amendment, the
will pay the CAT Fees to the Company
based on that ranking and predefined Operating Committee carefully
via the centralized system for the
Equity Execution Venue percentages. considered these comments and made a
collection of CAT fees established by
The Equity ATSs with the highest total number of changes to the Original
the Company.63
quarterly market share will be ranked in Section 11.4 of the CAT NMS Plan Proposal to address these comments
Tier 1, and the Equity ATSs with the also states that Participants shall require where appropriate.
lowest quarterly market share will be each Industry Member to pay all This Amendment makes the following
ranked in Tier 4. Specifically, paragraph applicable authorized CAT Fees within changes to the Original Proposal: (1)
(b)(2) states that, each quarter, each thirty days after receipt of an invoice or Adds two additional CAT Fee tiers for
Equity ATS shall pay the following CAT other notice indicating payment is due Equity Execution Venues; (2) discounts
Fee corresponding to the tier assigned (unless a longer payment period is the market share of Execution Venue
by the Company for such Equity ATS for otherwise indicated). Section 11.4 ATSs exclusively trading OTC Equity
that quarter: further states that, if an Industry Securities as well as the market share of
Member fails to pay any such fee when the FINRA ORF by the average shares
Percentage per trade ratio between NMS Stocks and
of Equity Quarterly due, such Industry Member shall pay
Tier interest on the outstanding balance from OTC Equity Securities (calculated as
Execution CAT fee
Venues such due date until such fee is paid at 0.17% based on available data from the
a per annum rate equal to the lesser of: second quarter of June 2017) when
1 ................ 25.00 $81,048 (i) The Prime Rate plus 300 basis points; calculating the market share of
2 ................ 42.00 37,062 Execution Venue ATSs exclusively
3 ................ 23.00 21,126
or (ii) the maximum rate permitted by
4 ................ 10.00 129 applicable law. Therefore, in accordance trading OTC Equity Securities and
with Section 11.4 of the CAT NMS Plan, FINRA; (3) discounts the Options
(C) Timing and Manner of Payment the Exchange proposes to adopt Market Maker quotes by the trade to
paragraph (c)(2), which states that each quote ratio for options (calculated as
Section 11.4 of the CAT NMS Plan Industry Member shall pay CAT Fees 0.01% based on available data for June
states that the Operating Committee within thirty days after receipt of an 2016 through June 2017) when
shall establish a system for the invoice or other notice indicating calculating message traffic for Options
collection of fees authorized under the
sradovich on DSK3GMQ082PROD with NOTICES
payment is due (unless a longer Market Makers; (4) discounts equity
CAT NMS Plan. The Operating payment period is otherwise indicated).
Committee may include such collection If an Industry Member fails to pay any 64 For a description of the comments submitted in
such fee when due, such Industry response to those Original Proposal, see Suspension
62 Note that no fee schedule is provided for Order.
Member shall pay interest on the 65 Suspension Order.
Execution Venue ATSs that execute transactions in
Listed Options, as no such Execution Venue ATSs outstanding balance from such due date 66 See MFA Letter; SIFMA Letter; FIA Principal
currently exist due to trading restrictions related to Traders Group Letter; Belvedere Letter; Sidley
Listed Options. 63 Section 11.4 of the CAT NMS Plan. Letter; Group One Letter; and Virtu Financial Letter.
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message traffic, while also achieving Execution Venues would pay a quarterly expected to contribute toward such
greater comparability in the model for CAT Fee of approximately $81,000. costs. Finally, as noted by the SEC, the
the individual CAT Reporters with the In developing the proposed allocation CAT ‘‘substantially enhance[s] the
greatest market share or message traffic. of CAT costs between Equity Execution ability of the SROs and the Commission
In developing the proposed seven tier Venues and Options Execution Venues, to oversee today’s securities markets,’’ 77
structure, the Operating Committee the Operating Committee considered thereby benefitting all market
considered remaining at nine tiers, as various different options for such participants. After making this
well as reducing the number of tiers allocation, including keeping the determination, the Operating Committee
down to seven when considering how to original 75%25% allocation, as well as analyzed several different cost
address the concerns raised regarding shifting to a 70%/30%, 67%/33%, or allocations, as discussed further below,
comparability. For each of the 57.75%/42.25% allocation. For each of and determined that an allocation where
alternatives, the Operating Committee the alternatives, the Operating 75% of the CAT costs should be borne
considered the assignment of various Committee considered the effect each by the Industry Members (other than
percentages of Industry Members to allocation would have on the Execution Venue ATSs) and 25%
each tier as well as various percentages assignment of various percentages of should be paid by Execution Venues
of Industry Member recovery allocations Equity Execution Venues to each tier as was most appropriate and led to the
for each alternative. Each of these well as various percentages of Equity greatest comparability of CAT Fees for
options was considered in the context of Execution Venue recovery allocations the largest CAT Reporters.
its effects on the full funding model, as for each alternative. Moreover, each of In developing the proposed allocation
changes in each variable in the model these options was considered in the of CAT costs between Execution Venues
affect other variables in the model when context of the full model, as changes in and Industry Members (other than
allocating the total CAT costs among each variable in the model affect other Execution Venue ATSs), the Operating
CAT Reporters. The Operating variables in the model when allocating Committee considered various different
the total CAT costs among CAT options for such allocation, including
Committee determined that the seven
Reporters. The Operating Committee keeping the original 75%/25%
tier alternative provided the most fee
determined that the 67%/33% allocation, as well as shifting to an 80%/
comparability at the individual entity
allocation between Equity Execution 20%, 70%/30%, or 65%/35%
level for the largest CAT Reporters,
Venues and Options Execution Venues allocation. Each of these options was
while both providing logical breaks in
provided the greatest level of fee considered in the context of the full
tiering for Industry Members with
comparability at the individual entity model, including the effect on each of
different levels of message traffic and a
level for the largest CAT Reporters, the changes discussed above, as changes
sufficient number of tiers to provide for
while still providing for appropriate fee in each variable in the model affect
the full spectrum of different levels of
levels across all tiers for all CAT other variables in the model when
message traffic for all Industry Reporters.
Members. allocating the total CAT costs among
(iii) Allocation of Costs Between CAT Reporters. In particular, for each of
(ii) Allocation of CAT Costs Between Execution Venues and Industry the alternatives, the Operating
Equity and Options Execution Venues Members Committee considered the effect each
The Operating Committee also allocation had on the assignment of
The Operating Committee determined
determined to adjust the allocation of various percentages of Equity Execution
to allocate 25% of CAT costs to
CAT costs between Equity Execution Venues, Options Execution Venues and
Execution Venues and 75% to Industry
Venues and Options Execution Venues Industry Members (other than Execution
Members (other than Execution Venue
to enhance comparability at the Venue ATSs) to each relevant tier as
ATSs), as it had in the Original
individual entity level. In the Original well as various percentages of recovery
Proposal. The Operating Committee
Proposal, 75% of Execution Venue CAT allocations for each tier. The Operating
determined that this 75%/25%
costs were allocated to Equity Execution Committee determined that the 75%/
allocation, along with the other changes
Venues, and 25% of Execution Venue proposed above, led to the most 25% allocation between Execution
CAT costs were allocated to Options comparable fees for the largest Equity Venues and Industry Members (other
Execution Venues. To achieve the goal Execution Venues, Options Execution than Execution Venue ATSs) provided
of increased comparability at the Venues and Industry Members (other the greatest level of fee comparability at
individual entity level, the Operating than Execution Venue ATSs). The the individual entity level for the largest
Committee analyzed a range of largest Equity Execution Venues, CAT Reporters, while still providing for
alternative splits for revenue recovery Options Execution Venues and Industry appropriate fee levels across all tiers for
between Equity Execution Venues and Members (other than Execution Venue all CAT Reporters.
Options Execution Venues, along with ATSs) would each pay a quarterly CAT (iv) Affiliations
other changes in the proposed funding Fee of approximately $81,000. The funding principles set forth in
model. Based on this analysis, the As a preliminary matter, the
Section 11.2 of the Plan require that the
Operating Committee determined to Operating Committee determined that it
fees charged to CAT Reporters with the
allocate 67 percent of Execution Venue is appropriate to allocate most of the
most CAT-related activity (measured by
costs recovered to Equity Execution costs to create, implement and maintain
market share and/or message traffic, as
Venues and 33 percent to Options the CAT to Industry Members for
applicable) are generally comparable
Execution Venues. The Operating several reasons. First, there are many
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(where, for these comparability
Committee determined that a 67%/33% more Industry Members expected to
purposes, the tiered fee structure takes
allocation between Equity Execution report to the CAT than Participants (i.e.,
into consideration affiliations between
Venues and Options Execution Venues 1,541 broker-dealer CAT Reporters
or among CAT Reporters, whether
enhances the level of fee comparability versus 22 Participants). Second, since
for the largest CAT Reporters. most of the costs to process CAT 77 Securities Exchange Act Rel. No. 67457 (Jul 18,
Specifically, the largest Equity reportable data is generated by Industry 2012), 77 FR 45722, 45726 (Aug. 1, 2012) (‘‘Rule
Execution Venues and Options Members, Industry Members could be 613 Adopting Release’’).
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![58994 Federal Register / Vol. 82, No. 239 / Thursday, December 14, 2017 / Notices
contributing to the funding of the CAT. objectives of the Plan, as identified by Industry Members (other than Execution
In addition, as noted by the SEC, the the SEC, and is therefore consistent with Venue ATSs) versus CAT Reporters that
CAT ‘‘substantially enhance[s] the the Act. are Execution Venues. Similarly, the
ability of the SROs and the Commission The Exchange believes that the 67%/33% division between Equity
to oversee today’s securities markets,’’ 90 proposed tiered fees are reasonable. Execution Venues and Options
thereby benefitting all market First, the total CAT Fees to be collected Execution Venues also helps to provide
participants. Therefore, the Operating would be directly associated with the fee comparability for the largest CAT
Committing continues to believe that it costs of establishing and maintaining Reporters.
is equitable for both Participants and the CAT, where such costs include Plan Finally, the Exchange believes that
Industry Members to contribute to Processor costs and costs related to the proposed fees are reasonable
funding the cost of the CAT. insurance, third party services and the because they would provide ease of
operational reserve. The CAT Fees calculation, ease of billing and other
2. Statutory Basis would not cover Participant services administrative functions, and
The Exchange believes that the unrelated to the CAT. In addition, any predictability of a fixed fee. Such factors
proposed rule change is consistent with surplus CAT Fees cannot be distributed are crucial to estimating a reliable
the provisions of Section 6(b)(4) of the to the individual Participants; such revenue stream for the Company and for
Act,91 because it provides for the surpluses must be used as a reserve to permitting CAT Reporters to reasonably
equitable allocation of reasonable dues, offset future fees. Given the direct predict their payment obligations for
fees, and other charges among members relationship between the fees and the budgeting purposes.
and issuers and other persons using its CAT costs, the Exchange believes that For the foregoing reasons, the
facilities. The Exchange believes the the total level of the CAT Fees is Exchange believes that the proposal is
proposed rule change is also consistent reasonable. consistent with the Act.
with Section 6(b)(5) of the Act,92 which In addition, the Exchange believes
B. Self-Regulatory Organization’s
requires, among other things, that the that the proposed CAT Fees are
Statement on Burden on Competition
Exchange’s rules be designed to prevent reasonably designed to allocate the total
fraudulent and manipulative acts and costs of the CAT equitably between and Section 6(b)(8) of the Act 94 require
practices, to promote just and equitable among the Participants and Industry that the Exchange’s rules not impose
principles of trade, and, in general, to Members, and are therefore not unfairly any burden on competition that is not
protect investors and the public interest, discriminatory. As discussed in detail necessary or appropriate. The Exchange
and not designed to permit unfair above, the proposed tiered fees impose does not believe that the proposed rule
discrimination between customers, comparable fees on similarly situated change will result in any burden on
issuers, brokers and dealers. As CAT Reporters. For example, those with competition that is not necessary or
discussed above, the SEC approved the a larger impact on the CAT (measured appropriate in furtherance of the
bifurcated, tiered, fixed fee funding via message traffic or market share) pay purposes of the Act. The Exchange notes
model in the CAT NMS Plan, finding it higher fees, whereas CAT Reporters that the proposed rule change
was reasonable and that it equitably with a smaller impact pay lower fees. implements provisions of the CAT NMS
allocated fees among Participants and Correspondingly, the tiered structure Plan approved by the Commission, and
Industry Members. The Exchange lessens the impact on smaller CAT is designed to assist the Exchange in
believes that the proposed tiered fees Reporters by imposing smaller fees on meeting its regulatory obligations
adopted pursuant to the funding model those CAT Reporters with less market pursuant to the Plan. Similarly, all
approved by the SEC in the CAT NMS share or message traffic. In addition, the national securities exchanges and
Plan are reasonable, equitably allocated fee structure takes into consideration FINRA are proposing a similar proposed
and not unfairly discriminatory. distinctions in securities trading fee change to implement the
The Exchange believes that this operations of CAT Reporters, including requirements of the CAT NMS Plan.
proposal is consistent with the Act ATSs trading OTC Equity Securities, Therefore, this is not a competitive fee
because it implements, interprets or and equity and options market makers. filing and, therefore, it does not raise
clarifies the provisions of the Plan, and Moreover, the Exchange believes that competition issues between and among
is designed to assist the Exchange and the division of the total CAT costs the exchanges and FINRA.
its Industry Members in meeting between Industry Members and Moreover, as previously described,
regulatory obligations pursuant to the Execution Venues, and the division of the Exchange believes that the proposed
Plan. In approving the Plan, the SEC the Execution Venue portion of total rule change fairly and equitably
noted that the Plan ‘‘is necessary and costs between Equity and Options allocates costs among CAT Reporters. In
appropriate in the public interest, for Execution Venues, is reasonably particular, the proposed fee schedule is
the protection of investors and the designed to allocate CAT costs among structured to impose comparable fees on
maintenance of fair and orderly markets, CAT Reporters. The 75%/25% division similarly situated CAT Reporters, and
to remove impediments to, and perfect between Industry Members (other than lessen the impact on smaller CAT
the mechanism of a national market Execution Venue ATSs) and Execution Reporters. CAT Reporters with similar
system, or is otherwise in furtherance of Venues maintains the greatest level of levels of CAT activity will pay similar
the purposes of the Act.’’ 93 To the comparability across the funding model. fees. For example, Industry Members
extent that this proposal implements, For example, the cost allocation (other than Execution Venue ATSs) with
interprets or clarifies the Plan and establishes fees for the largest Industry higher levels of message traffic will pay
Members (i.e., those Industry Members
sradovich on DSK3GMQ082PROD with NOTICES
applies specific requirements to higher fees, and those with lower levels
Industry Members, the Exchange in Tier 1) that are comparable to the of message traffic will pay lower fees.
believes that this proposal furthers the largest Equity Execution Venues and Similarly, Execution Venue ATSs and
Options Execution Venues (i.e., those other Execution Venues with larger
90 Rule 613 Adopting Release at 45726. Execution Venues in Tier 1). market share will pay higher fees, and
91 15 U.S.C. 78f(b)(4). Furthermore, the allocation of total CAT those with lower levels of market share
92 15 U.S.C. 78f(b)(6). cost recovery recognizes the difference
93 Approval Order at 84697. in the number of CAT Reporters that are 94 15 U.S.C. 78f(b)(8).
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![Federal Register / Vol. 82, No. 239 / Thursday, December 14, 2017 / Notices 58995
will pay lower fees. Therefore, given inappropriate burden on competition (7) Commenters’ views as to whether
that there is generally a relationship and a reduction in market quality.’’ 95 the reduction in the number of tiers for
between message traffic and market (2) Commenters’ views as to whether Industry Members (other than Execution
share to the CAT Reporter’s size, smaller the allocation of 25% of CAT costs to Venue ATSs) from nine to seven, the
CAT Reporters generally pay less than the Execution Venues (including all the revised allocation of CAT costs between
larger CAT Reporters. Accordingly, the Participants) and 75% to Industry Equity Execution Venues and Options
Exchange does not believe that the CAT Members, will incentivize or Execution Venues from a 75%/25%
Fees would have a disproportionate disincentivize the Participants to split to a 67%/33% split, and the
effect on smaller or larger CAT effectively and efficiently manage the adjustment of all tier percentages and
Reporters. In addition, ATSs and CAT costs incurred by the Participants recovery allocations achieves
exchanges will pay the same fees based since they will only bear 25% of such comparability across individual entities,
on market share. Therefore, the costs. and whether these changes should have
Exchange does not believe that the fees (3) Commenters’ views on the resulted in a change to the allocation of
will impose any burden on the determination to allocate 75% of all 75% of total CAT costs to Industry
competition between ATSs and costs incurred by the Participants from Members (other than Execution Venue
exchanges. Accordingly, the Exchange November 21, 2016 to November 21, ATSs) and 25% of such costs to
2017 to Industry Members (other than Execution Venues.
believes that the proposed fees will
Execution Venue ATSs), when such
minimize the potential for adverse Discounts
costs are development and build costs
effects on competition between CAT
and when Industry Member reporting is (8) Commenters’ views as to whether
Reporters in the market.
scheduled to commence a year later, the discounts for options market-
Furthermore, the tiered, fixed fee including views on whether such ‘‘fees, makers, equities market-makers, and
funding model limits the disincentives costs and expenses . . . [are] fairly and Equity ATSs trading OTC Equity
to providing liquidity to the market. reasonably shared among the Securities are clear, reasonable, and
Therefore, the proposed fees are Participants and Industry Members’’ in consistent with the funding principle
structured to limit burdens on accordance with the CAT NMS Plan.96 expressed in the CAT NMS Plan that
competitive quoting and other liquidity (4) Commenters’ views on whether an requires the Operating Committee to
provision in the market. analysis of the ratio of the expected ‘‘avoid any disincentives such as
In addition, the Exchange believes Industry Member-reported CAT placing an inappropriate burden on
that the proposed changes to the messages to the expected SRO-reported competition and a reduction in market
Original Proposal, as discussed above in CAT messages should be the basis for quality,’’ 99 including views as to
detail, address certain competitive determining the allocation of costs whether the discounts for market-
between Industry Members and makers limit any potential disincentives
concerns raised by commenters,
Execution Venues.97 to act as a market-maker and/or to
including concerns related to, among (5) Any additional data analysis on
other things, smaller ATSs, ATSs provide liquidity due to CAT fees.
the allocation of CAT costs, including
trading OTC Equity Securities, market any existing supporting evidence. Calculation of Costs and Imposition of
making quoting and fee comparability. CAT Fees
As discussed above, the Exchange Comparability
(9) Commenters’ views as to whether
believes that this Amendment addresses (6) Commenters’ views on the shift in the amendment provides sufficient
the competitive concerns raised by the standard used to assess the information regarding the amount of
commenters. comparability of CAT Fees, with the costs incurred from November 21, 2016
emphasis now on comparability of to November 21, 2017, particularly, how
C. Self-Regulatory Organization’s
individual entities instead of affiliated those costs were calculated, how those
Statement on Comments on the
entities, including views as to whether costs relate to the proposed CAT Fees,
Proposed Rule Change Received From
this shift is consistent with the funding and how costs incurred after November
Members, Participants, or Others
principle expressed in the CAT NMS 21, 2017 will be assessed upon Industry
No written comments were solicited Plan that requires the Operating Members and Execution Venues;
or received with respect to the proposed Committee to establish a fee structure in (10) Commenters’ views as to whether
rule change. which the fees charged to ‘‘CAT the timing of the imposition and
Reporters with the most CAT-related collection of CAT Fees on Execution
III. Solicitation of Comments on activity (measured by market share and/ Venues and Industry Members is
Amendment No. 1 or message traffic, as applicable) are reasonably related to the timing of when
generally comparable (where, for these the Company expects to incur such
Interested persons are invited to comparability purposes, the tiered fee
submit written data, views, and development and implementation
structure takes into consideration costs.100
arguments concerning the foregoing, affiliations between or among CAT
including whether Amendment No. 1 is (11) Commenters’ views on dividing
Reporters, whether Execution Venues CAT costs equally among each of the
consistent with the Act. In particular, and/or Industry Members).’’ 98
the Commission seeks comment on the Participants, and then each Participant
following: 95 Section
charging its own members as it deems
11.2(e) of the CAT NMS Plan.
96 Section
appropriate, taking into consideration
11.1(c) of the CAT NMS Plan.
sradovich on DSK3GMQ082PROD with NOTICES
Allocation of Costs 97 The Notice for the CAT NMS Plan did not the possibility of inconsistency in
provide a comprehensive count of audit trail charges, the potential for lack of
(1) Commenters’ views as to whether message traffic from different regulatory data transparency, and the impracticality of
the allocation of CAT costs is consistent sources, but the Commission did estimate the ratio multiple SROs submitting invoices for
with the funding principle expressed in of all SRO audit trail messages to OATS audit trail
CAT charges.
the CAT NMS Plan that requires the messages to be 1.9431. See Securities Exchange Act
Release No. 77724 (April 27, 2016), 81 FR 30613,
Operating Committee to ‘‘avoid any 30721 n.919 and accompanying text (May 17, 2016). 99 Section 11.2(e) of the CAT NMS Plan.
disincentives such as placing an 98 Section 11.2(c) of the CAT NMS Plan. 100 Section 11.1(c) of the CAT NMS Plan.
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![58996 Federal Register / Vol. 82, No. 239 / Thursday, December 14, 2017 / Notices
Burden on Competition and Barriers to (a) Whether any of the national filing also will be available for
Entry securities exchanges or FINRA are inspection and copying at the principal
disadvantaged by the fees; and office of the Exchange. All comments
(12) Commenters’ views as to whether (b) If so, whether any such
the allocation of 75% of CAT costs to received will be posted without change.
disadvantages would be of a magnitude Persons submitting comments are
Industry Members (other than Execution that would alter the competitive
Venue ATSs) imposes any burdens on cautioned that we do not redact or edit
landscape. personal identifying information from
competition to Industry Members, (21) Commenters’ views on any
including views on what baseline comment submissions. You should
potential burden imposed by the fees on
competitive landscape the Commission submit only information that you wish
competitive quoting and other liquidity
should consider when analyzing the to make available publicly. All
provision in the market, including,
proposed allocation of CAT costs. specifically: submissions should refer to File
(13) Commenters’ views on the (a) Commenters’ views on the kinds of Number SR–NYSEARCA–2017–52 and
burdens on competition, including the disincentives that discourage liquidity should be submitted on or before
relevant markets and services and the provision and/or disincentives that the January 4, 2018.
impact of such burdens on the baseline Commission should consider in its For the Commission, by the Division of
competitive landscape in those relevant analysis; Trading and Markets, pursuant to delegated
markets and services. (b) Commenters’ views as to whether authority.101
(14) Commenters’ views on any the fees could disincentivize the Robert W. Errett,
potential burdens imposed by the fees provision of liquidity; and
(c) Commenters’ views as to whether Deputy Secretary.
on competition between and among
CAT Reporters, including views on the fees limit any disincentives to [FR Doc. 2017–27024 Filed 12–13–17; 8:45 am]
which baseline markets and services the provide liquidity. BILLING CODE 8011–01–P
fees could have competitive effects on (22) Commenters’ views as to whether
and whether the fees are designed to the amendment adequately responds to
minimize such effects. and/or addresses comments received on SECURITIES AND EXCHANGE
(15) Commenters’ general views on related filings. COMMISSION
the impact of the proposed fees on Electronic Comments
economies of scale and barriers to entry. [Release No. 34–82240; File No. SR–
(16) Commenters’ views on the • Use the Commission’s internet CboeEDGX–2017–003]
baseline economies of scale and barriers comment form (http://www.sec.gov/
to entry for Industry Members and rules/sro.shtml); or Self-Regulatory Organizations; Cboe
• Send an email to rule-comments@ EDGX Exchange, Inc.; Notice of Filing
Execution Venues and the relevant
sec.gov. Please include File Number SR– and Immediate Effectiveness of a
markets and services over which these
NYSEARCA–2017–52 on the subject Proposed Rule Change Related to
economies of scale and barriers to entry
line.
exist. Transaction Fees for Exchange’s
(17) Commenters’ views as to whether Paper Comments Equity Trading Platform
a tiered fee structure necessarily results • Send paper comments in triplicate December 8, 2017.
in less active tiers paying more per unit to Brent J. Fields, Secretary, Securities
than those in more active tiers, thus and Exchange Commission, 100 F Street Pursuant to Section 19(b)(1) of the
creating economies of scale, with NE, Washington, DC 20549–1090. Securities Exchange Act of 1934
supporting information if possible. All submissions should refer to File (‘‘Act’’),1 and Rule 19b–4 thereunder,2
(18) Commenters’ views as to how the Number SR–NYSEARCA–2017–52. This notice is hereby given that on November
level of the fees for the least active tiers file number should be included on the 30, 2017, Cboe EDGX Exchange, Inc.
would or would not affect barriers to subject line if email is used. To help the (‘‘EDGX’’ or ‘‘Exchange’’) filed with the
entry. Commission process and review your Securities and Exchange Commission
(19) Commenters’ views on whether comments more efficiently, please use (‘‘Commission’’) the proposed rule
the difference between the cost per unit only one method. The Commission will change as described in Items I, II and III
(messages or market share) in less active post all comments on the Commission’s below, which Items have been prepared
tiers compared to the cost per unit in internet website (http://www.sec.gov/ by the Exchange. The Exchange has
more active tiers creates regulatory rules/sro.shtml). Copies of the designated the proposed rule change as
economies of scale that favor larger submission, all subsequent one establishing or changing a member
competitors and, if so: amendments, all written statements due, fee, or other charge imposed by the
(a) How those economies of scale with respect to the proposed rule Exchange under Section 19(b)(3)(A)(ii)
compare to operational economies of change that are filed with the of the Act 3 and Rule 19b–4(f)(2)
scale; and Commission, and all written thereunder,4 which renders the
(b) Whether those economies of scale communications relating to the proposed rule change effective upon
reduce or increase the current proposed rule change between the filing with the Commission. The
advantages enjoyed by larger Commission and any person, other than Commission is publishing this notice to
competitors or otherwise alter the those that may be withheld from the
solicit comments on the proposed rule
competitive landscape. public in accordance with the
sradovich on DSK3GMQ082PROD with NOTICES
change from interested persons.
(20) Commenters’ views on whether provisions of 5 U.S.C. 552, will be
the fees could affect competition available for website viewing and
between and among national securities printing in the Commission’s Public 101 17CFR 200.30–3(a)(12).
exchanges and FINRA, in light of the Reference Room, 100 F Street NE, 1 15 U.S.C. 78s(b)(1).
fact that implementation of the fees does Washington, DC 20549 on official 2 17 CFR 240.19b–4.
not require the unanimous consent of all business days between the hours of 3 15 U.S.C. 78s(b)(3)(A)(ii).
such entities, and, specifically: 10:00 a.m. and 3:00 p.m. Copies of the 4 17 CFR 240.19b–4(f)(2).
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Document Created: 2018-10-25 10:53:49
Document Modified: 2018-10-25 10:53:49
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| Collection | Federal Register | |
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