[Federal Register Volume 75, Number 20 (Monday, February 1, 2010)]
[Notices]
[Pages 5157-5166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1969]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61419; File No. SR-BATS-2009-031]


Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of 
Filing of Amendment No. 1 and Order Granting Accelerated Approval of a 
Proposed Rule Change, as Modified by Amendment No. 1 Thereto, To 
Establish Rules Governing the Trading of Options on the BATS Options 
Exchange

January 26, 2010.

I. Introduction

    On November 10, 2009, BATS Exchange, Inc. (``Exchange'' or 
``BATS'') filed with the Securities and Exchange Commission 
(``Commission'') a proposed rule change pursuant to Section 19(b)(1) of 
the Securities Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 
thereunder,\2\ to adopt rules governing the trading of options on the 
BATS Options Exchange Market (``BATS Options Exchange'' or ``BATS 
Options''), which will be an options trading facility of the Exchange. 
The proposed rule change was published for comment in the Federal 
Register on December 8, 2009.\3\ On January 21, 2010, BATS filed 
Amendment 1 to the proposed rule change.\4\ The Commission received no

[[Page 5158]]

comments on the proposal. This order provides notice of the filing of 
Amendment No. 1 and approves the proposed rule change, as modified by 
Amendment No. 1 thereto, on an accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 61097 (December 2, 
2009), 74 FR 64788 (``Notice'').
    \4\ In Amendment No. 1, the Exchange: (1) Clarified the Form 
19b-4 discussion regarding establishing strike prices for Quarterly 
Options Series to conform to the proposed rule text; (2) clarified 
in its Form 19b-4 that the Exchange will not include options classes 
in its pilot program for quoting certain options in one-cent 
increments when the issuer of the underlying security is subject to 
an announced merger or is in the process of being acquired by 
another company or is in bankruptcy and that, for purposes of 
assessing average daily volume, the Exchange will use Options 
Clearing Corporation data; (3) amended its Form 19b-4 and rules 
relating to that pilot program to provide for the quoting of all 
options on IWM and SPY in one-cent increments; (4) included in its 
Exhibit 5 an updated table of contents; (5) made technical changes 
to defined terms in BATS Rule 2.12(d) and proposed BATS Options Rule 
21.1(d)(6) to conform to the terms as defined in proposed BATS 
Options Rule 16.1(a); (6) deleted proposed BATS Option Rule 16.2(d); 
(7) added references to ``BATS Options'' in the title of Chapters 
XVI and XVII of the proposed rules; (8) stated its intent to amend 
its existing regulatory services agreement with FINRA to capture 
certain aspects of regulation specifically applicable to BATS 
Options and the regulation and discipline of Options Members; (9) 
clarified proposed BATS Options Rule 26.14(a) to conform to FINRA 
Rule 2150(c)(1); and (10) represented that it will comply with the 
specifications of the Consolidated Options Audit Trail System 
(``COATS'') in submitting data for purposes of creating a 
consolidated audit trail, as well as receive COATS data for purposes 
of its surveillance operations.
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II. Discussion and Commission Findings

    After careful review, the Commission finds that the proposed rule 
change is consistent with the requirements of the Act and the rules and 
regulations thereunder applicable to a national securities exchange.\5\ 
Specifically, the Commission finds that the proposal is consistent with 
Section 6(b)(5) of the Act,\6\ which requires, among other things, that 
the rules of a national securities exchange be designed to prevent 
fraudulent and manipulative acts and practices; to promote just and 
equitable principles of trade; to foster cooperation and coordination 
with persons engaged in regulating, clearing, settling, and processing 
information with respect to, and facilitating transactions in 
securities; to remove impediments to and perfect the mechanism of a 
free and open market and a national market system; and, in general, to 
protect investors and the public interest. Section 6(b)(5) also 
requires that the rules of an exchange not be designed to permit unfair 
discrimination among customers, issuers, brokers, or dealers. Further, 
the Commission finds that the proposal is consistent with Sections 
6(b)(1) of the Act,\7\ which requires, among other things, that a 
national securities exchange be so organized and have the capacity to 
carry out the purposes of the Act, and to comply and enforce compliance 
by its members and persons associated with its members, with the 
provisions of the Act, the rules and regulation thereunder, and the 
rules of the exchange.
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    \5\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. 15 U.S.C. 78c(f).
    \6\ 15 U.S.C. 78f(b)(5).
    \7\ 15 U.S.C. 78f(b)(1).
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    Overall, the Commission believes that approving the proposed rule 
change could confer important benefits on the public and market 
participants. In particular, BATS Options' entry into the marketplace 
could provide market participants with an additional venue for 
executing orders in standardized options, enhance innovation, and 
increase competition between and among the options exchanges, resulting 
in better prices and executions for investors.
    This discussion does not review every detail of the proposal, but 
focuses on the most significant rules and policy issues considered in 
review of the proposal.

A. BATS Options Members

    Only Options Members may transact business on BATS Options via the 
System.\8\ There will be two types of Options Members: Options Order 
Entry Firms (``OEFs'') and Options Market Makers. An Options Member 
must be a member of BATS Exchange, and another registered options 
exchange that is not registered solely under Section 6(g) of the Act 
\9\ or FINRA.\10\ As a BATS Exchange Member, Options Members must 
satisfy the requirements in Chapter II of the Exchange Rules, as well 
as additional requirements set forth in the BATS Options Rules.\11\ An 
OEF may only transact business with Public Customers if such Options 
Member also is an Options Member of another registered national 
securities exchange or association with which the Exchange has entered 
into an agreement under Rule 17d-2 under the Act pursuant to which such 
other exchange or association shall be the designated options examining 
authority for the OEF.\12\ Further, Options Members that transact 
business with Public Customers must at all times be members of 
FINRA.\13\
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    \8\ See proposed BATS Options Rule 17.1(a). An Options Member 
means a firm or organization that is registered with the Exchange 
pursuant to Chapter XVII of the BATS Options Rules for purposes of 
participating in options trading on BATS Options. See proposed BATS 
Options Rule 16.1(a)(38).
    \9\ 15 U.S.C. 78f(g).
    \10\ See proposed BATS Options Rule 17.2(f).
    \11\ See Chapter XVII of the proposed BATS Options Rules. Except 
to the extent that specific rules relating to options govern or 
unless the context otherwise requires, the provisions of the 
Exchange Rules shall be applicable to Options Members and to the 
trading of option contracts on BATS Options. See proposed BATS 
Options Rule 16.2(b). Exchange Rules is defined to mean the rules of 
the Exchange, including those for equities and options. See proposed 
BATS Options Rule 16.1(a)(5).
    \12\ See proposed BATS Options Rule 26.1.
    \13\ See id.
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    Among other things, each Options Member must be registered as a 
broker-dealer and have as the principal purpose of being an Options 
Member the conduct of a securities business, which shall be deemed to 
exist if and so long as: (1) The Options Member has qualified and acts 
in respect of its business on BATS Options as either an OEF or an 
Options Market Maker or both; and (2) all transactions effected by the 
Options Member are in compliance with Section 11(a) of the Act and the 
rules and regulation adopted thereunder. Participants may trade options 
for their own proprietary accounts or, if authorized to do so under 
applicable law, may conduct business on behalf of customers.\14\
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    \14\ See proposed BATS Options Rule 17.1(a).
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    OEFs are those Options Members representing as agent Customer 
Orders on BATS Options or trading as principal on BATS Options. OEFs 
also may register as Market Makers.\15\ A Market Maker that engages in 
specified Other Business Activities, or that is affiliated with a 
broker-dealer that engages in Other Business Activities, including 
functioning as an OEF, must have an Information Barrier between the 
market making activities and the Other Business Activities.\16\ Options 
Market Makers are Options Members registered with the Exchange as 
Options Market Makers and registered with BATS Options in an option 
series listed on BATS Options. To become an Options Market Maker, an 
Options Member is required to register by filing a written application 
with BATS, which will consider an applicant's market making ability and 
other factors it deems appropriate in determining whether to approve an 
applicant's registration.\17\ Such registration will consist of at 
least one options series and may include all series traded on the 
Exchange.\18\ All Market Makers are designated as specialists on BATS 
Options for all purposes under the Act or rules thereunder. The 
Exchange will not place any limit on the number of entities that may 
become Options Market Makers.\19\ The good standing of a Market Maker 
may be suspended, terminated, or withdrawn if the conditions for 
approval cease to be maintained or the Market Maker violates any of its 
agreements with BATS or any provision of the BATS Options Rules.\20\
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    \15\ See proposed BATS Options Rule 22.1.
    \16\ See proposed BATS Options Rule 17.1(a).
    \17\ See proposed BATS Options Rule 22.2.
    \18\ See proposed BATS Options Rule 22.3.
    \19\ See proposed BATS Options Rule 22.2(c).
    \20\ See proposed BATS Options Rule 22.4(b).
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    The Exchange will not list an options series for trading unless at 
least one Options Market Maker is registered in the options series.\21\ 
In addition, before

[[Page 5159]]

the Exchange opens trading for any additional series of an options 
class, it will require at least one Options Market Maker to be 
registered for trading that particular series.\22\
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    \21\ See proposed BATS Options Rule 19.5(a).
    \22\ See id.
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    BATS Options Market Makers are required to electronically engage in 
a course of dealing to enhance liquidity available on BATS Options and 
to assist in the maintenance of fair and orderly markets.\23\ Among 
other things, an Options Market Maker must: (1) On a daily basis 
maintain a two-sided market on a continuous basis in at least 75% of 
the options series in which it is registered; (2) enter a size of at 
least one contract for its best bid and its best offer; and (3) 
maintain minimum net capital in accordance with Commission and Exchange 
rules.\24\ Substantial or continued failure by an Options Market Maker 
to meet any of its obligations and duties would subject the Options 
Market Maker to disciplinary action, suspension, or revocation of the 
Options Market Maker's registration in one or more options series.\25\
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    \23\ See proposed BATS Options Rule 22.5.
    \24\ See, e.g., proposed BATS Options Rules 22.5 and 22.6.
    \25\ See proposed BATS Options Rule 22.5(c).
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    The Commission finds that BATS Options Market Maker qualification 
requirements are consistent with the Act and notes that they are 
similar to those of other options exchanges.\26\ The Commission also 
finds that the BATS Options Market Maker participation requirements are 
consistent with the Act. Market Makers receive certain benefits for 
carrying out their responsibilities. For example, a lender may extend 
credit to a broker-dealer without regard to the restrictions in 
Regulation T of the Board of Governors of the Federal Reserve System if 
the credit is used to finance a broker-dealer's activities as a 
specialist or market maker on a national securities exchange.\27\ In 
addition, market makers are exempted from the prohibition in Section 
11(a) of the Act. The Commission believes that a market maker must have 
sufficient affirmative obligations, including the obligation to hold 
itself out as willing to buy and sell options for its own account on a 
regular or continuous basis, to justify this favorable treatment. The 
Commission believes that BATS Options Market Maker participation 
requirements impose sufficient affirmative obligations on BATS Options 
Market Makers and, accordingly, that BATS Options requirements are 
consistent with the Act.
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    \26\ See, e.g., ISE Rule 804, and NOM Rules, Chapter VII, 
Sections 5 and 6.
    \27\ 12 CFR 221.5(c)(6).
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B. BATS Options Trading System

    The BATS Options trading system will leverage the Exchange's 
current technology, including its customer connectivity, messaging 
protocols, quotation and execution engine, order router, data feeds, 
and network infrastructure. BATS Options will operate an electronic 
trading system to trade options (``System'') that will provide for the 
electronic display and automatic execution of orders in price/time 
priority, without regard to the status of the entities that are 
entering orders.\28\ The System will operate between the hours of 9:30 
a.m. Eastern Time and 4 p.m. Eastern Time, with all orders being 
available for execution during that time frame.\29\ The System will 
include a proprietary data feed, which will display the bid and offer 
at multiple price levels on an anonymous basis using the minimum price 
variation applicable to that security.\30\
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    \28\ The System includes: (1) An order execution service that 
enables Options Members to automatically execute transactions in 
securities listed and traded on BATS Options; (2) a trade reporting 
service that submits ``locked-in'' trades for clearing to a 
registered clearing agency for clearance and settlement, transmits 
last-sale reports of transactions automatically to OPRA for 
dissemination to the public and industry, and provides participants 
with monitoring and risk management capabilities to facilitate 
participation in a ``locked-in'' trading environment; and (3) a data 
feed(s) that can be used to display without attribution to Options 
Members' MPIDs Displayed Orders on both the bid and offer side of 
the market for price levels then within BATS Options using the 
minimum price variation applicable to that security. See proposed 
BATS Options Rule 21.1(a). See Notice, supra note 3, for a more 
complete description of BATS Options operation and rules. The 
Commission notes that the Plan for Reporting of Consolidated Options 
Last Sale Reports and Quotation Information (``OPRA Plan'') requires 
each party to the Plan to collect and promptly transmit to the 
Options Price Reporting Authority (``OPRA'') all last sale reports 
relating to its market. See OPRA Plan, Article V, Section 5.2(a).
    \29\ See proposed BATS Options Rule 21.2(a).
    \30\ See proposed BATS Options Rule 21.1(a)(3).
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    Options Members will be able to enter the following types of orders 
into the System: Market Orders; Limit Orders; Reserve Orders; \31\ 
Minimum Quantity Orders; \32\ Discretionary Orders; \33\ Price 
Improving Orders; \34\ Destination Specific Orders; \35\ BATS Only 
Orders; \36\ BATS Post Only Orders; \37\ Partial Post

[[Page 5160]]

Only at Limit Orders; \38\ Intermarket Sweep Orders; \39\ and Directed 
Intermarket Sweep Orders,\40\ with characteristics and functionality 
similar to what is currently approved for use in the Exchange's 
equities trading facility or on other options exchanges.\41\ Orders 
entered into the System will be designated for display (price and size) 
on an anonymous basis in the order display service of the System.\42\
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    \31\ Reserve Orders are limit orders that have both a displayed 
size as well as an additional non-displayed amount. Both the 
displayed and non-displayed portions of the Reserve Order are 
available for potential execution against incoming orders. If the 
displayed portion of a Reserve Order is fully executed, the System 
will replenish the display portion from reserve up to the size of 
the original display amount. A new timestamp is created for the 
replenished portion of the order each time it is replenished from 
reserve, while the reserve portion retains the timestamp of its 
original entry.
    \32\ Minimum Quantity Orders are orders that require that a 
specified minimum quantity of contracts be obtained, or the order is 
cancelled. Minimum Quantity Orders may only be entered with a time-
in-force designation of Immediate or Cancel.
    \33\ Discretionary Orders are orders that have a displayed price 
and size, as well as a non-displayed discretionary price range, at 
which the entering party is also willing to buy or sell. When 
displayed contracts become available on the opposite side of the 
market or an execution takes place at any price within the 
discretionary price range, the displayed price and size is 
automatically cancelled and an IOC buy (sell) order is generated 
priced at the highest (lowest) price in the discretionary price 
range. If more than one Discretionary Order is available for 
conversion to an IOC order, the System will convert and process all 
such orders in the same priority in which such Discretionary Orders 
were entered. If the IOC order is not executed in full, the 
unexecuted portion of the order is automatically re-posted and 
displayed in the BATS Options Book with a new time stamp, at its 
original displayed price, and with its non-displayed discretionary 
price range.
    \34\ Price Improving Orders are orders to buy or sell an option 
at a specified price at an increment smaller than the minimum price 
variation in the security. Price Improving Orders may be entered in 
increments as small as one cent. Price Improving Orders that are 
available for display shall be displayed at the minimum price 
variation in that security and shall be rounded up for sell orders 
and rounded down for buy orders. Unless a User has entered 
instructions not to do so, Price Improving Orders will be subject to 
the ``displayed price sliding process.'' Pursuant to the displayed 
price sliding process, a Price Improving Order that after rounding 
to the minimum price variation, or any other order to be displayed 
on the BATS Book that at the time of entry, would lock or cross a 
Protected Quotation (collectively, ``the original locking price''): 
(a) will be displayed by the System at one minimum price variation 
below the current NBO (for bids) or to one minimum price variation 
above the current NBB (for offers); and (b) in the event the NBBO 
changes such that the order at the original locking price would not 
lock or cross a Protected Quotation, the order will receive a new 
timestamp, and will be displayed at the original locking price.
    \35\ Destination Specific Orders are market or limit orders that 
instruct the System to route the order to a specified away trading 
center, after exposing the order to the BATS Options Book. 
Destination Specific Orders that are not executed in full after 
routing away are processed by the Exchange, as described in proposed 
BATS Options Rules 21.8 and 21.9.
    \36\ BATS Only Orders are orders that are to be ranked and 
executed on the Exchange or cancelled, as appropriate, without 
routing away to another trading center. A BATS Only Order that, at 
the time of entry, would cross a Protected Quotation will be 
repriced to the locking price and ranked at such price in the BATS 
Options Book. A BATS Only Order will be subject to the displayed 
price sliding process unless a User has entered instructions not to 
use the displayed price sliding process.
    \37\ BATS Post Only Orders are orders that are to be ranked and 
executed on the Exchange or cancelled, as appropriate, without 
routing away to another trading center. Such orders will not remove 
liquidity from the BATS Options Book. A BATS Post Only Order will be 
subject to the displayed price sliding process unless a User has 
entered instructions not to use the displayed price sliding process.
    \38\ Partial Post Only at Limit Orders are orders that are to be 
ranked and executed on the Exchange or cancelled, as appropriate, 
without routing away to another trading center. Such orders will 
only remove liquidity from the BATS Options Book under the following 
circumstances: (a) a Partial Post Only at Limit Order will remove 
liquidity from the BATS Options Book up to the full size of the 
order if, at the time of receipt, it can be executed at prices 
better than its limit price (i.e., price improvement); (b) 
regardless of any liquidity removed from the BATS Options Book under 
the circumstances described in paragraph (a) above, a User may enter 
a Partial Post Only at Limit Order instructing the Exchange to also 
remove liquidity from the BATS Options Book at the order's limit 
price up to a designated percentage of the remaining size of the 
order after any execution pursuant to paragraph (a) above (``Maximum 
Remove Percentage'') if, after removing such liquidity at the 
order's limit price, the remainder of such order can then post to 
the BATS Options Book. If no Maximum Remove Percentage is entered, 
such order will only remove liquidity to the extent such order will 
obtain price improvement as described in paragraph (a) above. A 
Partial Post Only at Limit Order will be subject to the displayed 
price sliding process unless a User has entered instructions not to 
use the displayed price sliding process.
    \39\ Intermarket Sweep Orders (``ISOs'') are orders that have 
the meaning provided in proposed BATS Options Rule 27.1, which 
relates to intermarket trading. Such orders may be executed at one 
or multiple price levels in the System without regard to Protected 
Quotations at other options exchanges (i.e., may trade through such 
quotations). The Exchange relies on the marking of an order by a 
User as an ISO order when handling such order, and thus, it is the 
entering Options Member's responsibility, not the Exchange's 
responsibility, to comply with the requirements relating to ISOs. 
ISOs are not eligible for routing.
    Nothwithstanding the Exchange's reliance on a User's marking of 
an order as an ISO, the Exchange has an obligation under Rule 
608(c), 17 CFR 242.608(c), and Section 19(g)(1) of the Act, 15 
U.S.C. 78s(g)(1), to enforce members' compliance with the plan and 
exchange rules related to the plan. Accordingly, BATS must have a 
robust regulatory program, including surveillance, examination, 
investigative, and disciplinary programs, to enforce its members' 
compliance with its rules and the plan provisions.
    \40\ Directed Intermarket Sweep Orders are ISOs entered by a 
User that bypass the System and are immediately routed by the 
Exchange to another options exchange specified by the User for 
execution. It is the entering Member's responsibility, not the 
Exchange's responsibility, to comply with the requirements relating 
to ISOs.
    \41\ See proposed BATS Options Rule 21.1(d). Options Members 
entering orders into the System may designate such orders to remain 
in force and available for display and/or potential execution for 
varying periods of time. Unless cancelled earlier, once these time 
periods expire, the order (or the unexecuted portion thereof) is 
returned to the entering party. Such ``Time in Force'' designations 
for orders include ``Good Til Day'' or ``GTD,'' ``Immediate Or 
Cancel'' or ``IOC,'' ``DAY,'' and ``WAIT.'' See proposed BATS 
Options Rule 21.1(f).
    \42\ See proposed BATS Options Rules 21.8 and 21.10.
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    The System will execute trading interest within the System in 
price/time priority, meaning it will execute all trading interest at 
the best price level within the System before executing trading 
interest at the next best price.\43\ At each price level, displayed 
trading interest \44\ will be executed before non-displayed trading 
interest.\45\
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    \43\ See proposed BATS Options Rule 21.8(a).
    \44\ Trading interest at each price level where the price is not 
displayed will be executed in the following priority: (a) Price 
Improving Orders and orders subject to displayed price sliding, and 
then (b) discretionary portion of discretionary orders as set forth 
in proposed BATS Options Rule 21.1(d)(4).
    \45\ After orders that are displayed within the System at each 
price level are executed, the non-displayed portion of Reserve 
Orders will be executed followed by the discretionary portion of 
discretionary orders. See proposed BATS Options Rules 21.8(a)(1) and 
21.8(a)(2).
     As with its equities market, the Exchange will allow Options 
Members to use Member Match Trade Prevention (``MMTP'') Modifiers. 
See proposed BATS Options Rule 21.1(g). Any incoming order 
designated with an MMTP modifier would be prevented from executing 
against a resting opposite side order also designated with an MMTP 
modifier and originating from the same market participant identifier 
(``MPID''), Exchange Member identifier, or Exchange Sponsored 
Participant identifier. Id.
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    The Commission believes that BATS' proposed execution priority 
rules and order types are consistent with the Act, and in particular, 
with the requirements in Section 6(b)(5) of the Act, which requires an 
exchange's rules be, among other things, designed to promote just and 
equitable principles of trade, to remove impediments to and perfect the 
mechanism of a free and open market and a national market system, and, 
in general, to protect investors and the public interest, and are not 
designed to permit unfair discrimination between customers, issuers, 
brokers, or dealers. The Commission further finds that BATS Options 
proposed trading rules are consistent with the requirements of the 
Options Order Protection and Locked/Crossed Market Plan. Specifically, 
subject to the exceptions contained in proposed BATS Options Rule 
27.2(b), the System will ensure that an order is not executed at a 
price that trades through another options exchange.\46\ In this regard, 
the Commission notes that BATS is required under Rule 608(c) of 
Regulation NMS to comply with and enforce compliance by its members 
with the Options Order Protection and Locked/Crossed Market Plan, 
including the requirement to avoid trading through better prices 
available on other markets.\47\ Any order entered with a price that 
would lock or cross a Protected Quotation that is not eligible for 
either routing or the displayed price sliding process, as defined in 
proposed BATS Options Rule 21.1(d)(6), will be cancelled.\48\
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    \46\ See proposed BATS Options Rules 21.6(e) and 27.2.
    \47\ See 17 CFR 242.608(c).
    \48\ See proposed BATS Options Rule 21.6(f).
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    Proposed BATS Options Rule 22.12 prohibits Options Members from 
executing, as principal, orders they represent as agent unless the 
agency order is first exposed on BATS Options for at least one second 
or the Options Member has been bidding or offering on BATS Options for 
at least one second prior to receiving an agency order that is 
executable against such bid or offer.
    The Commission believes that in the electronic environment of BATS 
Options, a one second exposure period could facilitate the prompt 
execution of orders while continuing to provide option members with an 
opportunity to compete for exposed bids and offers. The Exchange 
represents that market participants are sufficiently automated that a 
one second exposure period allows an adequate time for market 
participants to electronically respond to an order.\49\ In addition, 
the Exchange's trading system for BATS Options is identical to the 
trading system currently used for equities trading on the Exchange 
today. The Exchange believes, based on its experience with that trading 
system, that one second is an adequate exposure period. Further, the 
Exchange believes that many of its current Members will be Options 
Members and that such current Members have demonstrated an ability to 
respond to orders in a timely fashion.\50\ Accordingly, the Commission 
believes it is consistent with the Act to have an order exposure time 
of one second.
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    \49\ See Notice, supra note 3, at 64791.
    \50\ Id.
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C. Openings

    The System will open options, other than index options, for trading 
based on the first transaction after 9:30 a.m. Eastern Time in the 
securities underlying the options as reported on the first print 
disseminated pursuant to an effective national market system plan.\51\ 
With respect to index options, the System will open such options for 
trading at 9:30 a.m. Eastern Time.\52\ Because the exchange does not 
propose to adopt an opening cross or similar process, the opening trade 
that occurs on the Exchange will be a trade in the

[[Page 5161]]

ordinary course of dealings on the Exchange. Accordingly, the System 
will ensure that the opening trade in an options series will not trade 
through a Protected Quotation (as defined in proposed BATS Options Rule 
27.1) at another options exchange, consistent with the general standard 
regarding trade-throughs articulated in proposed BATS Options Rule 
21.6(e). The Commission believes that BATS Options rules regarding the 
opening of trading on BATS Options, particularly the fact that a trade 
will not occur until the underlying security has begun trading and that 
any opening trade will be subject to the trade-through provisions of 
BATS Options Rule 21.6(e), is reasonably designed to provide for an 
orderly opening and is consistent with the Act.
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    \51\ See proposed BATS Options Rule 21.7(a).
    \52\ See id.
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D. Routing

    Options Members may designate orders to be routed to another 
options exchange when trading interest is not available on BATS Options 
or to execute only on BATS Options. An order that is designated as 
routable will be routed to other options markets to be executed when 
the Exchange is not at the NBBO consistent with the Options Order 
Protection and Locked/Crossed Market Plan. Orders routed to other 
options exchanges do not retain time priority with respect to orders in 
the System, and the System will continue to execute orders while routed 
orders are away at another exchange.\53\ If a routed order is returned, 
in whole or in part, that order (or its remainder) will receive a new 
time stamp reflecting the time of its return to the System.\54\ Options 
Members whose orders are routed away will be obligated to honor trades 
executed on other exchanges to the same extent they would be obligated 
to honor a trade executed on BATS Options.\55\
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    \53\ See proposed BATS Options Rule 21.9(b).
    \54\ Id.
    \55\ See proposed BATS Options Rule 21.9(c).
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    BATS Options will route orders in options via BATS Trading, Inc. 
(``BATS Trading''), which currently serves as the Outbound Router of 
the Exchange, pursuant to Rule 2.11.\56\ The function of the Outbound 
Router will be to route orders in options listed and open for trading 
on BATS Options to other options exchanges pursuant to BATS Options 
rules solely on behalf of BATS Options.\57\ The Outbound Router will be 
subject to regulation as a facility of the Exchange, including the 
requirement to file proposed rule changes under Section 19 of the 
Act.\58\
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    \56\ See proposed BATS Options Rule 21.9(d).
    \57\ Id.
    \58\ Id.
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    Pursuant to Rule 2.11, BATS Trading is required to be a member of 
an SRO unaffiliated with BATS that is its designated examining 
authority, and BATS Trading is required to establish and maintain 
procedures and internal controls reasonably designed to restrict the 
flow of confidential and proprietary information between BATS and its 
facilities, including BATS Trading, and any other entity.\59\ In 
addition, the books, records, premises, officers, directors, agents, 
and employees of BATS Trading, as a facility of BATS, are deemed to be 
those of the Exchange for purposes of and subject to oversight pursuant 
to the Act.\60\
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    \59\ See BATS Rule 2.11(a)(5).
    \60\ See BATS Rule 2.11(b).
---------------------------------------------------------------------------

    In the event the Exchange is not able to provide order routing 
services through its affiliated broker-dealer, the Exchange would route 
orders to other options exchanges in conjunction with one or more 
routing brokers that are not affiliated with the Exchange (``Routing 
Services'').\61\ The Exchange will determine the logic that provides 
when, how, and where orders are routed away to other options 
exchanges.\62\ The routing broker will receive routing instructions 
from the Exchange to route orders to other options exchanges and report 
the executions back to the Exchange.\63\ The routing broker cannot 
change the terms of an order or the routing instructions, nor does the 
routing broker have any discretion about where to route an order.\64\ 
The Exchange would enter into an agreement with each routing broker 
used by the Exchange that would, among other things, restrict the use 
of any confidential and proprietary information that the routing broker 
receives to legitimate business purposes necessary for the routing of 
the order at the direction of the Exchange.\65\ Further, the Exchange 
would establish and maintain procedures and internal controls 
reasonably designed to adequately restrict the flow of confidential and 
proprietary information between (1) the Exchange and the routing 
broker, and any other entity, including any affiliate of the routing 
broker; and (2) if the routing broker or any of its affiliates engages 
in any other business activities, other than providing routing services 
to the Exchange, the segment of the routing broker or affiliate that 
provides the other business activities and the segment of the routing 
broker that provides the routing services.\66\
---------------------------------------------------------------------------

    \61\ See proposed BATS Options Rule 21.9(e).
    \62\ See proposed BATS Options Rule 21.9(e)(5).
    \63\ See proposed BATS Options Rule 21.9(e)(6).
    \64\ Id.
    \65\ See proposed BATS Options Rule 21.9(e)(1).
    \66\ See proposed BATS Options Rule 21.9(e)(2).
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    The Exchange may not use a routing broker for which the Exchange or 
any affiliate of the Exchange is the designated examining 
authority.\67\ In addition, the Exchange will provide its Routing 
Services in compliance with the provisions of the Act and the rules 
thereunder, including, but not limited to, the requirements in Section 
6(b)(4) and (5) of the Act that the rules of a national securities 
exchange provide for the equitable allocation of reasonable dues, fees, 
and other charges among its members and issuers and other persons using 
its facilities, and not be designed to permit unfair discrimination 
between customers, issuers, brokers, or dealers.\68\ Any bid or offer 
entered on the Exchange routed to another options exchange through a 
routing broker that results in an execution shall be binding on the 
Options Member that entered such bid or offer.\69\
---------------------------------------------------------------------------

    \67\ See proposed BATS Options Rule 21.9(e)(3).
    \68\ See proposed BATS Options Rule 21.9(e)(4). See also 15 
U.S.C. 78f(b)(4) and (5).
    \69\ See proposed BATS Options Rule 21.9(e)(7).
---------------------------------------------------------------------------

    Use of BATS Trading or the Routing Services to route orders to 
other market centers is optional.\70\ Parties that do not desire to use 
BATS Trading or other Routing Services provided by the Exchange must 
designate orders as not available for routing.\71\
---------------------------------------------------------------------------

    \70\ See proposed BATS Options Rule 21.9(d).
    \71\ See id.
---------------------------------------------------------------------------

    In light of these protections, for both the use of BATS Trading or 
an unaffiliated router, the Commission believes that BATS rules and 
procedures regarding the use of BATS Trading or an unaffiliated router 
to route orders to away exchanges are consistent with the Act.

E. Minimum Quoting and Trading Increments

    The Exchange is proposing to apply the following minimum quoting 
increments: (1) if the option price is less than $3.00, five (5) cents; 
and (2) if the option price is $3.00 or higher, ten (10) cents. In 
addition, the Exchange proposes to participate in a pilot program, 
until December 31, 2010, to allow quoting in certain options in smaller 
increments (``Pilot Program''). BATS will include in the Pilot Program 
all classes that are, on that date, included by other options exchanges 
in substantially similar pilot programs. The Exchange further proposes 
to expand the classes subject to the Pilot

[[Page 5162]]

Program on a quarterly basis, by adding 75 classes at a time through 
August 2010.\72\ If an options class is included in the Pilot Program, 
BATS will allow quoting in one (1) cent increments any option priced 
less than $3.00 or options on QQQQs, IWM, and SPY. Options priced at 
$3.00 or higher that are in the Pilot Program will be quoted in five 
(5) cent increments.\73\
---------------------------------------------------------------------------

    \72\ See Notice, supra note 3 (providing additional details 
regarding the Pilot Program). The Exchange will not include in the 
Pilot Program options classes in which the issuer of the underlying 
security is subject to an announced merger or is in the process of 
being acquired by another company or if the issuer is in bankruptcy, 
and, for purposes of assessing average daily volume, the Exchange 
will use data compiled and disseminated by the Options Clearing 
Corporation (``OCC''). See Amendment No. 1, supra note 4.
    \73\ See proposed BATS Options Rule 21.5(a). See also Amendment 
No. 1, supra note 4.
---------------------------------------------------------------------------

    In addition, the Exchange is proposing that the minimum trading 
increment for options contracts traded on BATS Options would be one (1) 
cent for all series.\74\
---------------------------------------------------------------------------

    \74\ See proposed BATS Options Rule 21.5(b).
---------------------------------------------------------------------------

    The Commission believes that BATS' proposal to commence quoting 
pursuant to the Pilot Program, which is consistent with the rules of 
the other options exchanges, is consistent with the Act. As the 
Commission noted in approving the latest expansion of the Pilot 
Program, allowing market participants to quote in smaller increments 
has been shown to reduce spreads, thereby lowering costs to 
investors.\75\ In addition, permitting options to be quoted in smaller 
increments pursuant to the Pilot Program provides the opportunity for 
reduced spreads for a significant amount of trading volume.\76\ The 
Commission believes that BATS' proposal to commence quoting pursuant to 
the Pilot Program would promote the continuing narrowing of spreads. 
Further, although the Pilot Program has contributed to the increase in 
quote message traffic, the Commission notes that it has been manageable 
by the exchanges and OPRA, and the Commission has not received any 
reports of disruptions in the dissemination of pricing information.\77\ 
Although the Commission anticipates that BATS' proposal will contribute 
to further increases in quotation message traffic, the Commission 
believes that BATS' proposal is sufficiently limited such that it is 
unlikely to increase quotation message traffic beyond the capacity of 
market participants' systems and disrupt the timely receipt of 
information.\78\
---------------------------------------------------------------------------

    \75\ See Securities Exchange Act Release No. 60711 (September 
23, 2009), 74 FR 49419, 49424 (September 28, 2009) (SR-NYSEArca-
2009-44) (partially approving a proposed rule change to expand the 
Pilot Program).
    \76\ See id.
    \77\ See id.
    \78\ The Commission believes that the continued operation and 
phased expansion of the Pilot Program will provide valuable 
information to the exchanges, the Commission, and others about the 
impact of penny quoting in the options market. See Securities 
Exchange Act Release No. 60711, supra note 75. In particular, 
extending and expanding the Pilot Program will allow further 
analysis of the impact of penny quoting in the Pilot Program classes 
over a longer period of time on, among other things: (1) spreads; 
(2) peak quotation rates; (3) quotation message traffic; (4) 
displayed size; (5) ``depth of book'' liquidity; and (6) market 
structure. See id. The Exchange has committed to provide the 
Commission with periodic reports that will analyze the impact of the 
expanded Pilot Program. See Notice, supra note 3. The Commission 
expects the Exchange to include statistical information relating to 
these factors in its periodic reports.
---------------------------------------------------------------------------

F. Securities Traded on BATS Options

    The Exchange proposes to adopt initial and continued listing 
standards for equity and index options that are substantially similar 
to the listing standards adopted by other options exchanges.\79\ The 
Commission believes that BATS' proposed initial and continued listing 
standards are consistent with the Act, including Section 6(b)(5), in 
that they are designed to protect investors and the public interest and 
to promote just and equitable principles of trade. BATS' operation of 
the BATS Options Exchange, however, is conditioned on BATS becoming a 
Plan Sponsor in the Plan for the Purpose of Developing and Implementing 
Procedures Designed to Facilitate the Listing and Trading of 
Standardized Options Submitted Pursuant to Section 11A(a)(3)(B) of the 
Act (``OLPP''). The Exchange represents that it will join OLPP.\80\ In 
addition, BATS will need to become a participant in the OCC.
---------------------------------------------------------------------------

    \79\ See, e.g., Rules of NOM, Chapters IV and XIV; Rules of BOX, 
Chapters IV and XIV.
    \80\ See Notice, supra note 3, at 64793.
---------------------------------------------------------------------------

G. Regulation

    According to the Exchange, consistent with the Exchange's existing 
regulatory structure, the Exchange's Chief Regulatory Officer will have 
general supervision of the regulatory operations of BATS Options, 
including responsibility for overseeing the surveillance, examination, 
and enforcement functions and for administering all regulatory services 
agreements applicable to BATS Options. Similarly, the Exchange's 
existing Regulatory Oversight Committee will be responsible for 
overseeing the adequacy and effectiveness of Exchange's regulatory and 
self-regulatory organization (``SRO'') responsibilities, including 
those applicable to BATS Options.\81\
---------------------------------------------------------------------------

    \81\ Pursuant to a Regulatory Services Agreement, FINRA would 
perform certain regulatory functions on behalf of the Exchange. See 
infra note 90 and accompanying text.
---------------------------------------------------------------------------

    BATS rules provide that is has disciplinary jurisdiction over its 
members, including Options Members, so that it can enforce its members' 
compliance with its rules and the federal securities laws.\82\ The 
Exchange's rules also permit it to sanction members, including Options 
Members, for violations of its rules and of the federal securities laws 
by, among other things, expelling or suspending members, limiting 
members' activities, functions, or operations, fining or censuring 
members, or suspending or barring a person from being associated with a 
member.\83\ BATS rules also provide for the imposition of fines for 
minor rule violations in lieu of commencing disciplinary 
proceedings.\84\
---------------------------------------------------------------------------

    \82\ See proposed BATS Options Rules 17.3 and 25.1.
    \83\ See BATS Rule 8.1 and proposed BATS Options Rule 25.1.
    \84\ See infra notes 100 to 107 and accompanying text.
---------------------------------------------------------------------------

    Moreover, the Exchange will: (1) Join the existing options industry 
agreements pursuant to Section 17(d) of the Act; (2) amend as necessary 
the Exchange's existing Regulatory Services Agreement (``RSA'') with 
FINRA to cover many aspects of the regulation and discipline of Members 
that participate in options trading; (3) perform options listing 
regulation, as well as authorize Options Members to trade on BATS 
Options; and (4) perform automated surveillance of trading on BATS 
Options for the purpose of maintaining a fair and orderly market at all 
times.\85\
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    \85\ As it does with its equities trading, the Exchange will 
monitor BATS Options to identify unusual trading patterns and 
determine whether particular trading activity requires further 
regulatory investigation by FINRA. The Exchange represents that it 
will comply with COATS specifications in submitting data for 
purposes of creating a consolidated audit trail, as well as receive 
COATS data for purposes of its surveillance operations. See 
Amendment No. 1, supra note 4.
---------------------------------------------------------------------------

    In addition, the Exchange will oversee the process for determining 
and implementing trading halts, identifying and responding to unusual 
market conditions, and administering the Exchange's process for 
identifying and remediating ``obvious errors'' by and among its Options 
Members. BATS proposed rules (Chapter XX) regarding halts, unusual 
market conditions, extraordinary market volatility, obvious errors, and 
audit trail are closely modeled on the approved rules of The NASDAQ 
Options Market LLC (``NOM'')

[[Page 5163]]

and the Boston Options Exchange Group, LLC (``BOX'').\86\
---------------------------------------------------------------------------

    \86\ See Rules of NOM, Chapter V, and Rules of BOX, Chapter V.
---------------------------------------------------------------------------

    The Commission finds that the Exchange's proposed rules and 
regulatory structure with respect to BATS Options Exchange are 
consistent with the requirements of the Act, and in particular with 
Section 6(b)(1) of the Act, which requires an exchange to be so 
organized and have the capacity to be able to carry out the purposes of 
the Act and to comply, and to enforce compliance by its members and 
persons associated with its members, with the Act and the rules and 
regulations thereunder, and the rules of the Exchange,\87\ and with 
Section 6(b)(6) and 6(b)(7) of the Act \88\ which require an Exchange 
to provide fair procedures for the disciplining of members and persons 
associated with members.\89\
---------------------------------------------------------------------------

    \87\ 15 U.S.C. 78f(b)(1).
    \88\ 15 U.S.C. 78f(b)(6) and (b)(7).
    \89\ Every Options Member will be required to have at least one 
registered Options Principal who satisfies the criteria of that 
rule, including passing an appropriate qualification examination. 
See proposed BATS Options Rule 17.2(g). In addition, all Options 
Principals will be required to comply with the Exchange's existing 
continuing education requirements. See BATS Rule 2.5, Interpretation 
and Policy .02. and proposed BATS Options Rule 17.2(g)(4). The 
Commission believes these rules will help ensure that the Exchange 
can meet its obligations under Section 6(b)(1) of the Act to, among 
other things, enforce compliance by associated persons of its 
Members with the Act, the rules thereunder, and the Exchange's 
rules, and are consistent with the Act. The Commission further notes 
that Authorized Traders of Options Members will be required to 
comply with existing Exchange registration and continuing education 
requirements applicable to Authorized Traders. See BATS Rule 2.5, 
Interpretation and Policy .01 and .02, BATS Rule 11.4., and proposed 
BATS Options Rule 16.2(b). ``Authorized Trader'' is defined as a 
person who may submit orders (or who supervises a routing engine 
that may automatically submit orders) to the Exchange's trading 
facilities on behalf of his or her Member or Sponsored Participant. 
See BATS Rule 1.5(d).
---------------------------------------------------------------------------

1. Regulatory Services Agreement
    Currently, the Exchange and FINRA are parties to an existing RSA, 
pursuant to which FINRA personnel operate as agents for the Exchange in 
performing certain functions. According to the Exchange, the RSA 
between the Exchange and FINRA will be amended to capture certain 
aspects of regulation specifically applicable to BATS Options and the 
regulation and discipline of Options Members.\90\ The Commission notes 
that BATS will continue to bear ultimate regulatory responsibility for 
functions performed on BATS' behalf under the RSA. Further, BATS 
retains ultimate legal responsibility for the regulation of its Members 
and its market.
---------------------------------------------------------------------------

    \90\ See Amendment No. 1, supra note 4.
---------------------------------------------------------------------------

    The Commission believes that it is consistent with the Act to allow 
BATS Exchange to contract with FINRA to perform examination, 
enforcement, and disciplinary functions.\91\ These functions are 
fundamental elements to a regulatory program and constitute core self-
regulatory functions. It is essential to the public interest and the 
protection of investors that these functions are carried out in an 
exemplary manner, and the Commission believes that FINRA has the 
expertise and experience to perform these functions on behalf of BATS 
Exchange.\92\ The Commission is conditioning the operation of BATS 
Options Exchange on the finalization of the provisions in the RSA that 
will expand the scope of that agreement to options trading and specify 
the BATS Exchange and Commission rules for which FINRA will provide 
regulatory functions for the trading of options on the BATS Options 
Exchange.
---------------------------------------------------------------------------

    \91\ See, e.g., Regulation of Exchanges and Alternative Trading 
Systems, Securities Exchange Act Release No. 40760 (December 8, 
1998), 63 FR 70844 (December 22, 1998). See also, e.g., Securities 
Exchange Act Release Nos. 50122 (July 29, 2004), 69 FR 47962 (August 
6, 2004) (SR-Amex-2004-32) (approving rule that allowed Amex to 
contract with another SRO for regulatory services) (``Amex 
Regulatory Services Approval Order''); 57478 (March 12, 2008), 73 FR 
14521 (March 18, 2008) (SR-NASDAQ-2007-004) (``NOM Approval 
Order''); and 53128 (January 13, 2006), 71 FR 3550 (January 23, 
2006) (File No. 10-131) (``Nasdaq Exchange Registration Order'').
    \92\ See Amex Regulatory Services Approval Order; NOM Approval 
Order; and Nasdaq Exchange Registration Order, id.
---------------------------------------------------------------------------

    The Commission notes that, unless relieved by the Commission of its 
responsibility,\93\ BATS bears the responsibility for self-regulatory 
conduct and primary liability for self-regulatory failures, not the SRO 
retained to perform regulatory functions on the Exchange's behalf. In 
performing these functions, however, FINRA may nonetheless bear 
liability for causing or aiding and abetting the failure of the 
Exchange to perform its regulatory functions.\94\ Accordingly, although 
FINRA will not act on its own behalf under its SRO responsibilities in 
carrying out these regulatory services for BATS relating to the 
operation of BATS Options, FINRA also may have secondary liability if, 
for example, the Commission finds the contracted functions are being 
performed so inadequately as to cause a violation of the federal 
securities laws by BATS Exchange.\95\
---------------------------------------------------------------------------

    \93\ See Section 17(d)(1) of the Act and Rule 17d-2 thereunder 
(15 U.S.C. 78q(d)(1) and 17 CFR 240.17d-2). The Commission notes 
that this order is not approving the RSA.
    \94\ For example, if failings by FINRA have the effect of 
leaving BATS Exchange in violation of any aspect of BATS Exchange's 
self-regulatory obligations, BATS Exchange would bear direct 
liability for the violation, while FINRA may bear liability for 
causing or aiding and abetting the violation. See Nasdaq Exchange 
Registration Order, supra note 91. See also Securities Exchange Act 
Release No. 42455 (February 24, 2000), 65 FR 11388 (March 2, 2000) 
(File No. 10-127) (approving the International Securities Exchange 
LLC's application for registration as a national securities 
exchange).
    \95\ See id.
---------------------------------------------------------------------------

2. 17d-2 Agreements
    Rule 17d-2 under the Act permits SROs to file with the Commission 
plans under which the SROs allocate among each other the responsibility 
to receive regulatory reports from, and examine and enforce compliance 
with specified provisions of the Act and rules thereunder and SRO rules 
by, firms that are members of more than one SRO (``common members''). 
If such a plan is declared effective by the Commission, an SRO that is 
a party to the plan is relieved of regulatory responsibility as to any 
common member for whom responsibility is allocated under the plan to 
another SRO.\96\
---------------------------------------------------------------------------

    \96\ Rule 17d-2 provides that any two or more SROs may file with 
the Commission a plan for allocating among such SROs the 
responsibility to receive regulatory reports from persons who are 
members or participants of more than one of such SROs to examine 
such persons for compliance, or to enforce compliance by such 
persons, with specified provisions of the Act, the rules and 
regulations thereunder, and the rules of such SROs, or to carry out 
other specified regulatory functions with respect to such persons. 
See 17 CFR 240.17d-2.
---------------------------------------------------------------------------

    All of the options exchanges, FINRA, and the New York Stock 
Exchange LLC (``NYSE'') have entered into the Options Sales Practices 
Agreement, a Rule 17d-2 Agreement, which allocates to certain SROs 
(``examining SROs'') regulatory responsibility for common members with 
respect to certain options-related sales practice matters.\97\ Under 
this Agreement, the examining SROs would examine firms that are common 
members of the Exchange and the particular examining SRO for compliance 
with certain provisions of the Act, certain of the rules and 
regulations adopted thereunder, certain examining SRO rules, and 
certain BATS Options Rules. In addition, BATS Options Rules contemplate 
participation in this Agreement by requiring that any Options Member 
also be a member of at least one of the examining SROs.\98\
---------------------------------------------------------------------------

    \97\ See Securities Exchange Act Release No. 57987 (June 18, 
2008), 73 FR 36156 (June 25, 2008) (File No. S7-966).
    \98\ See proposed BATS Options Rule 26.1.
---------------------------------------------------------------------------

    Moreover, all of the options exchanges and FINRA have entered into 
the Options Related Market Surveillance Agreement, which allocates 
regulatory responsibility for certain options-related

[[Page 5164]]

market surveillance matters among the participants.\99\ Under this 
agreement, the examining SRO would assume regulatory responsibility 
with respect to firms that are common members of the Exchange and the 
particular examining SRO for compliance with applicable common rules 
for certain accounts.
---------------------------------------------------------------------------

    \99\ See Securities Exchange Act Release No. 58765 (October 9, 
2008), 73 FR 62344 (October 20, 2008) (File No. 4-551).
---------------------------------------------------------------------------

    The Commission notes that, as a condition to this order, BATS must 
become a party to each of these 17d-2 Agreements, which will cover BATS 
Members that are Options Members.
3. Minor Rule Violation Plan
    The Commission approved the BATS Exchange's Minor Rule Violation 
Plan (``MRVP'') in 2008.\100\ The Exchange's MRVP specifies those 
uncontested minor rule violations with sanctions not exceeding $2,500 
that would not be subject to the provisions of Rule 19d-1(c)(1) under 
the Act \101\ requiring that an SRO promptly file notice with the 
Commission of any final disciplinary action taken with respect to any 
person or organization.\102\ The Exchange's MRVP includes the policies 
and procedures included in BATS Rule 8.15 (Imposition of Fines for 
Minor Violation(s) of Rules) and in BATS Rule 8.15, Interpretations and 
Policy .01.
---------------------------------------------------------------------------

    \100\ See Securities Exchange Act Release No. 58807 (October 17, 
2008), 73 FR 63219 (October 23, 2008) (File No. 4-568) (``BATS MRVP 
Order'').
    \101\ 17 CFR 240.19d-1(c)(1).
    \102\ The Commission adopted amendments to paragraph (c) of Rule 
19d-1 to allow SROs to submit for Commission approval plans for the 
abbreviated reporting of minor disciplinary infractions. See 
Securities Exchange Act Release No. 21013 (June 1, 1984), 49 FR 
23828 (June 8, 1984) (File No. S7-983A). Any disciplinary action 
taken by an SRO against any person for violation of a rule of the 
SRO which has been designated as a minor rule violation pursuant to 
such a plan filed with and declared effective by the Commission 
would not be considered ``final'' for purposes of Section 19(d)(1) 
of the Act if the sanction imposed consists of a fine not exceeding 
$2,500 and the sanctioned person has not sought an adjudication, 
including a hearing, or otherwise exhausted his administrative 
remedies.
---------------------------------------------------------------------------

    The Exchange proposes to amend its MRVP and BATS Rule 8.15, 
Interpretation and Policy .01, to include proposed BATS Options Rule 
25.3 (Penalty for Minor Rule Violations).\103\ The rules included in 
proposed BATS Options Rule 25.3 as appropriate for disposition under 
the Exchange's MRVP are: (a) Position Limit violations for both 
customer accounts as well as the accounts of Options Members that are 
Exchange Members; (b) Order Entry violations regarding restrictions on 
orders entered by Market Makers, and (c) Continuous Quote violations 
regarding Market Maker continuous bids and offers.
---------------------------------------------------------------------------

    \103\ In the BATS MRVP Order, the Commission noted that any 
amendments to Rule 8.15.01 made pursuant to a rule filing submitted 
under Rule 19b-4 would automatically be deemed a request by the 
Exchange for Commission approval of a modification to its MRVP. See 
BATS MRVP Order, supra note 100, at note 6.
---------------------------------------------------------------------------

    The Commission notes that the rules included in proposed BATS 
Options Rule 25.3 are similar to rules included in the MRVPs of other 
options exchanges.\104\ The Commission finds that BATS' MRVP, as 
amended to include the rules listed in proposed BATS Options Rule 25.3, 
is consistent with Sections 6(b)(1), 6(b)(5), and 6(b)(6) of the Act, 
which require, in part, that an exchange have the capacity to enforce 
compliance with, and provide appropriate discipline for, violations of 
the rules of the Commission and of the exchange.\105\ In addition, 
because BATS Rule 8.15 will offer procedural rights to a person 
sanctioned for a violation listed in proposed BATS Options Rule 25.3, 
the Commission believes that BATS' rules provide a fair procedure for 
the disciplining of members and associated persons, consistent with 
Section 6(b)(7) of the Act.\106\
---------------------------------------------------------------------------

    \104\ See, e.g., Rules of NOM, Chapter X, Section 7, and Rules 
of BOX, Chapter X, Section 2.
    \105\ 15 U.S.C. 78f(b)(1), 78f(b)(5), and 78f(b)(6).
    \106\ 15 U.S.C. 78f(b)(7).
---------------------------------------------------------------------------

    The Commission also finds that the proposal to include the 
provisions in proposed BATS Options Rule 25.3 in BATS' MRVP is 
consistent with the public interest, the protection of investors, or 
otherwise in furtherance of the purposes of the Act, as required by 
Rule 19d-1(c)(2) under the Act,\107\ because it should strengthen BATS' 
ability to carry out its oversight and enforcement responsibilities as 
an SRO in cases where full disciplinary proceedings are unsuitable in 
view of the minor nature of the particular violation.
---------------------------------------------------------------------------

    \107\ 17 CFR 250.19d-1(c)(2).
---------------------------------------------------------------------------

    In approving the proposed change to BATS' MRVP, the Commission in 
no way minimizes the importance of compliance with BATS rules and all 
other rules subject to the imposition of fines under BATS' MRVP. The 
Commission believes that the violation of any SRO rules, as well as 
Commission rules, is a serious matter. However, BATS' MRVP provides a 
reasonable means of addressing rule violations that do not rise to the 
level of requiring formal disciplinary proceedings, while providing 
greater flexibility in handling certain violations. The Commission 
expects that BATS will continue to conduct surveillance with due 
diligence and make a determination based on its findings, on a case-by-
case basis, whether a fine of more or less than the recommended amount 
is appropriate for a violation under BATS' MRVP or whether a violation 
requires a formal disciplinary action.

H. Section 11(a) of the Act

    Section 11(a)(1) of the Act \108\ prohibits a member of a national 
securities exchange from effecting transactions on that exchange for 
its own account, the account of an associated person, or an account 
over which it or its associated person exercises discretion 
(collectively, ``covered accounts'') unless an exception applies. Rule 
11a2-2(T) under the Act,\109\ known as the ``effect versus execute'' 
rule, provides exchange members with an exemption from the Section 
11(a)(1) prohibition. Rule 11a2-2(T) permits an exchange member, 
subject to certain conditions, to effect transactions for covered 
accounts by arranging for an unaffiliated member to execute 
transactions on the exchange. To comply with Rule 11a2-2(T)'s 
conditions, a member: (i) Must transmit the order from off the exchange 
floor; (ii) may not participate in the execution of the transaction 
once it has been transmitted to the member performing the execution; 
\110\ (iii) may not be affiliated with the executing member; and (iv) 
with respect to an account over which the member has investment 
discretion, neither the member nor its associated person may retain any 
compensation in connection with effecting the transaction except as 
provided in the Rule.
---------------------------------------------------------------------------

    \108\ 15 U.S.C. 78k(a)(1).
    \109\ 17 CFR 240.11a2-2(T).
    \110\ The member may, however, participate in clearing and 
settling the transaction.
---------------------------------------------------------------------------

    In a letter to the Commission, BATS requests that the Commission 
concur with BATS' conclusion that Options Members that enter orders 
into the System satisfy the requirements of Rule 11a2-2(T).\111\ For 
the reasons set forth below, the Commission believes that Options 
Members entering orders into the System would satisfy the conditions of 
the Rule.
---------------------------------------------------------------------------

    \111\ See Letter from Eric Swanson, Senior Vice President and 
General Counsel, BATS Exchange, to Elizabeth M. Murphy, Secretary, 
Commission, dated January 20, 2010 (``BATS 11(a) Letter'').
---------------------------------------------------------------------------

    The Rule's first condition is that orders for covered accounts be 
transmitted from off the exchange floor. The BATS Options System 
receives orders electronically through remote terminals or computer-to-
computer interfaces. In the context of other automated trading systems, 
the Commission has found that the off-floor

[[Page 5165]]

transmission requirement is met if a covered account order is 
transmitted from a remote location directly to an exchange's floor by 
electronic means.\112\ Because the BATS Options System receives orders 
electronically through remote terminals or computer-to-computer 
interfaces, the Commission believes that the System satisfies the off-
floor transmission requirement.
---------------------------------------------------------------------------

    \112\ See, e.g., NOM Approval Order, supra note 91; Securities 
Exchange Act Release Nos. 53128 (January 13, 2006), 71 FR 3550 
(January 23, 2006) (File No. 10-131) (approving Nasdaq Stock Market 
LLC); 44983 (October 25, 2001), 66 FR 55225 (November 1, 2001) (SR-
PCX-00-25) (approving Archipelago Exchange); 29237 (May 24, 1991), 
56 FR 24853 (May 31, 1991) (SR-NYSE-90-52 and SR-NYSE-90-53) 
(approving NYSE's Off-Hours Trading Facility); and 15533 (January 
29, 1979), 44 FR 6084 (January 31, 1979) (``1979 Release'').
---------------------------------------------------------------------------

    Second, the Rule requires that the member not participate in the 
execution of its order. BATS has represented that at no time following 
the submission of an order is an Options Member able to acquire control 
or influence over the result or timing of an order's execution.\113\ 
According to BATS, the execution of a member's order is determined 
solely by what other orders, bids, or offers are present in the System 
at the time the Options Member submits the order and on the priority of 
those orders, bids, and offers.\114\ Accordingly, the Commission 
believes that an Options Member does not participate in the execution 
of an order submitted to the System.
---------------------------------------------------------------------------

    \113\ See BATS 11(a) Letter, supra note 111.
    \114\ See id. An Options Member may cancel or modify the order, 
or modify the instruction for executing the order, but only from off 
the floor. The Commission has stated that the non-participation 
requirement is satisfied under such circumstances, so long as such 
modifications or cancellations are also transmitted from off the 
floor. See Securities Exchange Act Release No. 14713 (April 27, 
1978), 43 FR 18557 (May 1, 1978) (``1978 Release'') (stating that 
the ``non-participation requirement does not prevent initiating 
members from canceling or modifying orders (or the instructions 
pursuant to which the initiating member wishes orders to be 
executed) after the orders have been transmitted to the executing 
member, provided that any such instructions are also transmitted 
from off the floor'').
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    Third, Rule 11a2-2(T) requires that the order be executed by an 
exchange member who is unaffiliated with the member initiating the 
order. The Commission has stated that this requirement is satisfied 
when automated exchange facilities, such as the BATS Options System, 
are used, as long as the design of these systems ensures that members 
do not possess any special or unique trading advantages in handling 
their orders after transmitting them to the exchange.\115\ BATS has 
represented that the design of the System ensures that no Options 
Member has any special or unique trading advantage in the handling of 
its orders after transmitting its orders to the Exchange.\116\ Based on 
BATS' representation, the Commission believes that the BATS Options 
System satisfies this requirement.
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    \115\ In considering the operation of automated execution 
systems operated by an exchange, the Commission noted that while 
there is not an independent executing exchange member, the execution 
of an order is automatic once it has been transmitted into the 
system. Because the design of these systems ensures that members do 
not possess any special or unique trading advantages in handling 
their orders after transmitting them to the exchange, the Commission 
has stated that executions obtained through these systems satisfy 
the independent execution requirement of Rule 11a2-2(T). See 1979 
Release, supra note 112.
    \116\ See BATS 11(a) Letter, supra note 111.
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    Fourth, in the case of a transaction effected for an account with 
respect to which the initiating member or an associated person thereof 
exercises investment discretion, neither the initiating member nor any 
associated person thereof may retain any compensation in connection 
with effecting the transaction, unless the person authorized to 
transact business for the account has expressly provided otherwise by 
written contract referring to Section 11(a) of the Act and Rule 11a2-
2(T).\117\ BATS represents that Options Members trading for covered 
accounts over which they exercise investment discretion must comply 
with this condition in order to rely on the rule's exemption.\118\
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    \117\ 17 CFR 240.11a2-2(T)(a)(2)(iv). In addition, Rule 11a2-
2(T)(d) requires a member or associated person authorized by written 
contract to retain compensation, in connection with effecting 
transactions for covered accounts over which such member or 
associated persons thereof exercises investment discretion, to 
furnish at least annually to the person authorized to transact 
business for the account a statement setting forth the total amount 
of compensation retained by the member in connection with effecting 
transactions for the account during the period covered by the 
statement. See 17 CFR 240.11a2-2(T)(d). See also 1978 Release, supra 
note 114 (stating ``[t]he contractual and disclosure requirements 
are designed to assure that accounts electing to permit transaction-
related compensation do so only after deciding that such 
arrangements are suitable to their interests'').
    \118\ See BATS 11(a) Letter, supra note 111.
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III. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether Amendment No. 1 
to the proposed rule change is consistent with the Act. Comments may be 
submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to [email protected]. Please include 
File Number SR-BATS-2009-031 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-BATS-2009-031. This file 
number should be included on the subject line if e-mail is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for inspection and 
copying in the Commission's Public Reference Room, 100 F Street, NE., 
Washington, DC 20549, on official business days between the hours of 10 
a.m. and 3 p.m. Copies of the filing will also be available for 
inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-BATS-2009-031 and should be 
submitted on or before February 22, 2010.

IV. Accelerated Approval of the Proposal, as Amended

    The Commission finds good cause for approving the proposal, as 
amended, prior to the thirtieth day after the date of publication of 
notice of filing of the amended proposal in the Federal Register. The 
changes proposed in Amendment No. 1 are technical or non-substantive in 
nature, or are designed to clarify BATS Options Rules or make them 
consistent with the rules adopted by other options exchanges. 
Specifically, in Amendment No. 1, the Exchange (1) clarified its 
discussion regarding the establishment of strike prices for Quarterly 
Options Series to conform to the proposed rule text, the substance of 
which is consistent with the rules of other SROs; (2) clarified,

[[Page 5166]]

consistent with the rules of other SROs, that it will not include 
options classes in the Pilot Program when the issuer of the underlying 
security is subject to an announced merger or is in the process of 
being acquired by another company or is in bankruptcy and that, for 
purposes of assessing average daily volume, it will use OCC data; (3) 
amended its rules relating to the Pilot Program to provide for the 
quoting of all options on IWM and SPY in one-cent increments, 
consistent with what the Commission has previously approved for another 
options exchange; (4) included in its Exhibit 5, as a technical matter, 
an updated table of contents; (5) made non-substantive changes to 
defined terms in BATS Rule 2.12(d) and proposed BATS Options Rule 
21.1(d)(6) to conform to the terms as defined in proposed BATS Options 
Rule 16.1(a); (6) deleted proposed BATS Option Rule 16.2(d) as 
unnecessary; (7) added references to ``BATS Options'' in the title of 
Chapters XVI and XVII of the proposed rules; (8) stated its intent to 
amend its existing RSA with FINRA to capture certain aspects of 
regulation specifically applicable to BATS Options and the regulation 
and discipline of Options Members; (9) in the interest of protecting 
investors, amended proposed BATS Options Rule 26.14(a) (Profit Sharing) 
to make it consistent with FINRA Rule 2150(c)(1); and (10) made clear 
that it will comply with COATS specifications in submitting data for 
purposes of creating a consolidated audit trail, as well as receive 
COATS data for purposes of its surveillance operations. For these 
reasons, the Commission finds good cause for approving the proposed 
rule change, as amended, on an accelerated basis, pursuant to Section 
19(b)(2) of the Act.

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\119\ that the proposed rule change (SR-BATS-2009-031), as modified 
by Amendment No. 1 thereto, be, and hereby is, approved on an 
accelerated basis.
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    \119\ 15 U.S.C. 78s(b)(2).
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    Although the Commission's approval of the proposed rule change is 
final, and the proposed rules are therefore effective, it is further 
ordered that the operation of BATS Options Exchange is conditioned on 
the satisfaction of the requirements below:
    A. Participation in National Market System Plans Relating to 
Options Trading. BATS must join the OPRA, the OLPP, the Options Order 
Protection and Locked/Crossed Market Plan, and the National Market 
System Plan of the Options Regulatory Surveillance Authority.
    B. Examination by the Commission. BATS must have, and represent in 
a letter to the staff in the Commission's Office of Compliance 
Inspections and Examinations that it has adequate surveillance 
procedures and programs in place to effectively regulate the BATS 
Options Exchange.
    C. RSA and 17d-2 Agreements. BATS must ensure that all necessary 
changes are made to its Regulatory Services Agreement with FINRA and 
must become a party to the multi-party Rule 17d-2 agreements concerning 
sales practice regulation and market surveillance.\120\
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    \120\ See supra notes 97 and 99 and accompanying text. See also 
17 CFR 240.17d-2.
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    D. Participation in the Options Clearing Corporation. BATS must 
join the Options Clearing Corporation.
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    \121\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\121\
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2010-1969 Filed 1-29-10; 8:45 am]
BILLING CODE 8011-01-P