[Federal Register Volume 77, Number 219 (Tuesday, November 13, 2012)]
[Notices]
[Pages 67695-67699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27492]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-68166; File No. SR-EDGX-2012-46]


Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change Relating to 
Amendments to the EDGX Exchange, Inc. Fee Schedule

November 6, 2012.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on November 1, 2012, EDGX Exchange, Inc. (the ``Exchange'' or 
``EDGX'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I, II 
and III below, which items have been prepared by the self-regulatory 
organization. The

[[Page 67696]]

Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend its fees and rebates applicable to 
Members \3\ of the Exchange pursuant to EDGX Rule 15.1(a) and (c). All 
of the changes described herein are applicable to EDGX Members. The 
text of the proposed rule change is available on the Exchange's 
Internet Web site at www.directedge.com, at the Exchange's principal 
office, and at the Public Reference Room of the Commission.
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    \3\ As defined in Exchange Rule 1.5(n).
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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 these statements may be examined at 
the places specified in Item IV below. The self-regulatory organization 
has prepared summaries, set forth in sections A, B and C below, of the 
most significant aspects of such statements.

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

1. Purpose
    The Exchange proposes to add the Step-up Take Tier to the 
Exchange's fee schedule in Footnote 2. A Member will qualify for the 
Step-up Take Tier by (i) adding an average daily volume (``ADV'') of at 
least 2 million shares on a daily basis, measured monthly more than 
that Member's September 2012 added ADV (the ``September Added 
Baseline''); and (ii) removing at least 0.40% total consolidated volume 
(``TCV'') on a daily basis, measured monthly more than that Member's 
September 2012 removed ADV (the ``September Removal Baseline''). 
Members qualifying for the Step-up Take Tier will earn a rebate of 
$0.0030 per share for orders that add liquidity and yield Flags B, V, 
Y, 3 and 4, and will be assessed a fee of $0.0028 per share for orders 
that remove liquidity and yield Flags N, W, BB, PI, and 6.\4\ 
Accordingly, the Exchange proposes to append Footnote 2 to the default 
rates for adding and removing liquidity on the fee schedule, and Flags 
B, V, Y, 3, 4, N, W, BB, PI, and 6. The Exchange believes the Step-Up 
Take Tier will encourage large market participants, who are not 
currently large takers, to grow their take volume over an established 
baseline in order to achieve the tier.
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    \4\ The Exchange notes that to the extent Members qualify for a 
rebate higher than $0.0030 per share through other volume tiers, 
such as the Mega Tier, Market Depth Tier or the Ultra Tier, they 
will earn the higher rebate on the add flags instead of the Step-up 
Take Tier. In addition, such Members will still qualify for the 
reduced charge of $0.0028 per share for the removal flags.
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    In Footnote 8 of the fee schedule that is appended to Flag SW., the 
Exchange proposes to assess a fee of $0.0025 per share in lieu of the 
current fee of $0.0023 per share for Members' orders that are routed 
using the SWPA, SWPB or SWPC routing strategies \5\ and remove 
liquidity from the New York Stock Exchange (``NYSE''), yielding Flag D. 
This proposed change represents a pass-through of the rate that Direct 
Edge ECN LLC d/b/a DE Route (``DE Route''), the Exchange's affiliated 
routing broker dealer, is charged for routing orders to NYSE, in 
response to the pricing changes in NYSE's filing with the Securities 
and Exchange Commission (``SEC'').\6\ Accordingly, the Exchange 
proposes to delete the reference to the fee of $0.0023 per share in 
Footnote 8 because the rate for Flag D is $0.0025 per share. Therefore, 
the Exchange will assess a charge of $0.0025 for Members' orders that 
are routed using the SWPA, SWPB or SWPC routing strategies and remove 
liquidity from NYSE, yielding Flag D. In addition, the Exchange 
proposes deleting the reference to ``either'' in the text of Footnote 8 
given it is grammatically incorrect. The Exchange notes that its 
proposed deletion does not alter the intended purpose of the footnote.
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    \5\ As defined in Exchange Rules 11.9(b)(3)(o), (p) and (q).
    \6\ See Securities Exchange Release No. 68021 (October 9, 2012), 
77 FR 63406 (October 16, 2012) (SR-NYSE-2012-50).
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    In Footnote 3 of the fee schedule that is appended to Flags C, D, 
J, L and 2, the Exchange proposes to assess a fee of 0.30% of the 
dollar value of the transaction in lieu of the current fee of $0.0023 
per share for stocks priced below $1.00 that are routed or re-routed to 
NYSE and remove liquidity, yielding Flag D.\7\ This proposed change now 
represents a pass-through of the rate that DE Route is charged for 
routing orders to NYSE that remove liquidity.\8\
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    \7\ The Exchange does not propose to amend the rates for stocks 
priced below $1.00 that are routed to Nasdaq OMX BX (``BX'') or 
NASDAQ, yielding Flags C, J, L and 2, as described in Footnote 3 of 
the fee schedule.
    \8\ Prior to March 1, 2012, the NYSE Price List generally 
specified that the applicable rate was the lesser of (i) 0.3% of the 
total dollar value of the transaction and (ii) $0.0023 per share. 
See Securities Exchange Act Release No. 66600, (March 14, 2012), 77 
FR 16298 (March 20, 2012) (SR-NYSE-2012-07). Effective March 1, 
2012, the rate for these transactions with a per-share price of less 
than $1.00 is now 0.3% of the total dollar value of the transaction.
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    On Flag RS, the Exchange proposes to offer a rebate of $0.0026 per 
share \9\ in lieu of the current rebate of $0.0016 per share for orders 
that are routed to the Nasdaq OMX PSX (``PSX'') and add liquidity. This 
proposed change represents a pass-through of the rebate that DE Route 
receives for routing orders to PSX, in response to recent pricing 
changes in PSX's filing with the SEC.\10\
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    \9\ The Exchange notes that it is passing through the standard 
rebate of $0.0026 per share even though it possibly can achieve a 
tiered rebate of $0.0028 per share if it meets certain criteria.
    \10\ See Securities Exchange Release No. 68052 (October 12, 
2012), 77 FR 64170 (October 18, 2012) (SR-PHLX-2012-119).
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    Currently, the Exchange charges Members a rate of $0.0027 per share 
for orders that are routed to PSX using the ROUC or ROUE routing 
strategies,\11\ yielding Flag K. The Exchange proposes to increase the 
rate to $0.0028 per share for orders that yield Flag K in response to 
recent pricing changes in PSX's filing with the SEC.\12\
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    \11\ As defined in Exchange Rules 11.9(b)(3)(a) and (c).
    \12\ See Securities Exchange Release No. 68052 (October 12, 
2012), 77 FR 64170 (October 18, 2012) (SR-PHLX-2012-119).
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    The Exchange proposes adding the title ``EdgeBook Depth Fees'' to 
the fee schedule describing the fees for the EdgeBook Depth X to 
increase the transparency of the fee schedule for Members.
    The Exchange also proposes deleting the dollar sign ($) on the fee 
table next to the fees on Flags N, W, 6, BB and PI. The Exchange 
regards this change as non-substantive in nature and is intended to 
conform to the other rates displayed on the fee table.
    The Exchange proposes to implement these amendments to its fee 
schedule on November 1, 2012.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the objectives of Section 6 of the Securities and Exchange Act of 
1934 (the ``Act''),\13\ in general, and furthers the objectives of 
Section 6(b)(4),\14\ in particular, as it is designed to provide for 
the equitable allocation of reasonable dues, fees and other charges 
among its

[[Page 67697]]

Members and other persons using its facilities.
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    \13\ 15 U.S.C. 78f.
    \14\ 15 U.S.C. 78f(b)(4).
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    The Exchange believes that the proposed Step-up Take Tier is 
designed to provide for the equitable allocation of reasonable dues, 
fees and other charges among its Members and other persons using its 
facilities. The requirements of the Step-up Take Tier to add ADV of at 
least 2 million shares (on a daily basis, measured monthly) more than 
the Member's September Added Baseline and to remove at least 0.40% TCV 
(on a daily basis, measured monthly) more than the Member's September 
Removal Baseline incentivizes substantial take volume from Members that 
generally add and remove volume from the Exchange by offering Members 
an increased add rebate of $0.0030 per share and a discounted removal 
rate of $0.0028 per share. The Exchange also believes that establishing 
Member's September Added Baseline and September Removal Baselines 
rewards liquidity provision attributes, encourages price discovery and 
market transparency by encouraging growth in liquidity over a defined 
baseline. The Exchange believes the Step-Up Take Tier will also 
encourage large market participants, who are not currently large 
takers, to grow their take volume over an established baseline in order 
to achieve the tier. In addition, the Exchange believes that these 
proposed amendments are non-discriminatory because they apply uniformly 
to all Members.
    The Exchange believes the Step-up Take Tier will increase volume on 
the Exchange. Therefore, the Exchange can increase the add rebate from 
$0.0023 per share to $0.0030 per share and discount the removal rate 
from $0.0030 per share to $0.0028 per share. The increased volume 
increases potential revenue to the Exchange, and allows the Exchange to 
spread its administrative and infrastructure costs over a greater 
number of shares, leading to lower per share costs. These lower per 
share costs in turn would allow the Exchange to pass on the savings to 
Members in the form of higher rebates and lower fees. The increased 
liquidity benefits all investors by deepening EDGX's liquidity pool, 
offering additional flexibility for all investors to enjoy cost 
savings, supporting the quality of price discovery, promoting market 
transparency and improving investor protection. Volume-based rebates 
such as the one proposed herein have been widely adopted in the cash 
equities markets, and are equitable because they are open to all 
Members on an equal basis and provide discounts that are reasonably 
related to the value to an exchange's market quality associated with 
higher levels of market activity, such as higher levels of liquidity 
provision and introduction of higher volumes of orders into the price 
and volume discovery processes.
    The Step-Up Take Tier represents an equitable allocation of 
reasonable dues, fees, and other charges. First, the Step-Up Take Tier 
allows the Exchange to compete with other exchanges such as NASDAQ, 
NYSE ARCA and BATS BZX in offering a discounted removal rate that is 
designed to incent fee sensitive liquidity takers to EDGX if they are 
willing to increase or grow their volume over an established baseline. 
This incentive recognizes that liquidity takers often have different 
trading strategies and types of order flow that they typically handle--
such as market orders, marketable limit orders, or proprietary removal 
strategies. Thus, when multiple exchanges are quoting at the same price 
level, the Exchange believes that certain liquidity takers that are 
incented to achieve the Step-Up Take Tier would be attracted to EDGX 
first. In turn, this would lead to increased price discovery on EDGX, 
result in additional prints on the Tape, and would have the effect of 
bringing additional liquidity providers to the exchange, thus 
bolstering its standing and value as a market. Since the Step-Up Take 
Tier offers lower removal fees for Members and fosters competition 
among exchanges, it could translate into costs savings for all market 
participants and their end customers. The Exchange also believes that 
the $0.0028 per share removal rate makes EDGX a more attractive venue 
to take liquidity from, which brings a higher quality of order flow to 
the EDGX Exchange and supports price discovery on EDGX. Finally, the 
Exchange believes that the Step-Up Take Tier will also help it to grow 
its market share as new takers who are incentivized to achieve the 
Step-Up Take Tier would send additional volume to the Exchange or 
remove additional shares from the Exchange in future trading 
opportunities. In addition, the Exchange believes that the proposed 
Step-Up Take Tier is non-discriminatory because it applies the same 
criteria uniformly to all Members.
    In addition, the criteria for the Step-up Take Tier is also 
reasonable as compared to similar pricing mechanisms employed by NYSE 
Arca,\15\ where NYSE Arca offers customers step-up tiers for Tape B and 
C securities that discount the default removal rate of $0.0030 per 
share when a baseline ADV is achieved. The Tape B Step Up Tier requires 
customers to add in excess of the greater of (i) 0.25% of US Tape B ADV 
over a January 2012 benchmark or (ii) 20% more than their January 2012 
benchmark to earn a discounted removal rate of $0.0026 per share. In 
addition, the Tape C Step Up Tier requires customers to add in excess 
of the greater of (i) 0.10% of US Tape C ADV over a January 2012 
benchmark or (ii) 20% more than their January 2012 benchmark plus 20%to 
earn a discounted removal rate of $0.0029 per share. The Exchange's 
discounted removal rate from $0.0030 per share to $0.0028 per share for 
Members that achieve the Step-up Take Tier is also reasonable because 
it is within the range of discounts offered by NYSE Arca, where the 
default removal rate is $0.0030 per share and customers that qualify 
for the step-up earn discounts of $0.0026 per share or $0.0029 per 
share.
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    \15\ See NYSE Arca Equities Trading Fees, http://usequities.nyx.com/markets/nyse-arca-equities/trading-fees. See also 
Securities Exchange Release No. 66568 (March 9, 2012), 77 FR 15819 
(March 16, 2012) (SR-NYSEARCA-2012-17).
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    The proposed rate change in Footnote 8 associated with routing 
orders to NYSE through DE Route on the Exchange's fee schedule is a 
pass-through rate from DE Route to the Exchange and from the Exchange, 
in turn, to its Members. The Exchange's proposal represents an 
equitable allocation of reasonable dues, fees, and other charges among 
Members of the Exchange and other persons using its facilities because 
the Exchange does not levy additional fees or offer additional rebates 
for orders that it routes to NYSE through DE Route. The Exchange notes 
that routing through DE Route is voluntary. Currently, in Footnote 8, 
for orders yielding Flag D that use the SWPA, SWPB, or SWPC routing 
strategies and remove liquidity from NYSE, NYSE charged DE Route a fee 
of $0.0023 per share, which, in turn, was passed through to the 
Exchange. The Exchange, in turn, charged its Members a fee of $0.0023 
per share as a pass-through. On October 1, 2012, NYSE increased the 
rate it charges its customers, such as DE Route, from $0.0023 per share 
to a charge of $0.0025 per share for orders that are routed or re-
routed to NYSE and remove liquidity. Therefore, the Exchange believes 
that the proposed change in Footnote 8 from a fee of $0.0023 per share 
to a fee of $0.0025 per share is equitable and reasonable because it 
accounts for the pricing changes on NYSE. In addition, the proposal 
allows the Exchange to continue to charge its Members a pass-through 
rate for orders that are routed or re-routed to NYSE and remove 
liquidity using DE Route. Lastly, the Exchange

[[Page 67698]]

also believes that the proposed amendment is non-discriminatory because 
it applies uniformly to all Members.
    The proposed rate change in Footnote 3 associated with routing 
orders to NYSE through DE Route now represents a pass-through rate from 
DE Route to the Exchange and from the Exchange, in turn, to its 
Members. The Exchange's proposal represents an equitable allocation of 
reasonable dues, fees, and other charges among Members of the Exchange 
and other persons using its facilities because the Exchange does not 
levy additional fees or offer additional rebates for orders that it 
routes to NYSE through DE Route. The Exchange notes that routing 
through DE Route is voluntary. For stocks priced below $1.00 that are 
routed or re-routed to NYSE and remove liquidity, DE Route charged its 
Members a fee of $0.0023 per share.\16\ NYSE modified the rate it 
charged its customers, such as DE Route, effective March 2012, to a 
charge of 0.30% of the dollar value of the transaction \17\ for stocks 
priced below $1.00 that remove liquidity. Therefore, the Exchange 
believes that the proposed change in Footnote 3 from a fee of $0.0023 
per share to a fee of 0.30% of the dollar value of the transaction is 
equitable and reasonable because it allows the Exchange to now charge 
its Members a pass-through rate for orders that are routed or re-routed 
to NYSE and remove liquidity using DE Route. Lastly, the Exchange also 
believes that the proposed amendment is non-discriminatory because it 
applies uniformly to all Members.
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    \16\ Prior to March 1, 2012, the NYSE Price List generally 
specified that the applicable rate was the lesser of (i) 0.30% of 
the total dollar value of the transaction and (ii) $0.0023 per 
share. See Securities Exchange Act Release No. 66600, (March 14, 
2012), 77 FR 16298 (March 20, 2012) (SR-NYSE-2012-07). Effective 
March 1, 2012, the rate for these transactions with a per-share 
price of less than $1.00 is now 0.3% of the total dollar value of 
the transaction.
    \17\ Id.
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    The proposed rate change for Flag RS associated with routing orders 
to PSX through DE Route on the Exchange's fee schedule is a pass-
through rate from DE Route to the Exchange and from the Exchange, in 
turn, to its Members. The Exchange's proposal represents an equitable 
allocation of reasonable dues, fees, and other charges among Members of 
the Exchange and other persons using its facilities because the 
Exchange does not levy additional fees or offer additional rebates for 
orders that it routes to PSX through DE Route. The Exchange notes that 
routing through DE Route is voluntary. Currently, for orders yielding 
Flag RS, PSX offers DE Route a rebate of $0.0016 per share, which, in 
turn, is passed through to the Exchange. The Exchange, in turn, offers 
its Members a rebate of $0.0016 per share as a pass-through. On October 
1, 2012, PSX increased the rebate it offers its customers, such as DE 
Route, from $0.0016 per share to a rebate of $0.0026 per share \18\ for 
orders that are routed to PSX and add liquidity. Therefore, the 
Exchange believes that the proposed change for Flag RS from a rebate of 
$0.0016 per share to a rebate of $0.0026 per share is equitable and 
reasonable because it accounts for the pricing changes on PSX. In 
addition, the proposal allows the Exchange to continue to charge its 
Members a pass-through of the standard rebate \19\ for orders that are 
routed to PSX and add liquidity using DE Route. Lastly, the Exchange 
also believes that the proposed amendment is non-discriminatory because 
it applies uniformly to all Members.
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    \18\ The Exchange notes that it is passing through the standard 
rebate of $0.0026 per share even though it possibly can achieve a 
tiered rebate of $0.0028 per share if it meets certain criteria.
    \19\ Id.
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    The Exchange believes that its proposal to amend the rate for Flag 
K represents an equitable allocation of reasonable dues, fees and other 
charges among its Members and other persons using its facilities. DE 
Route is charged either a fee of $0.0028 per share or $0.0030 per share 
depending on the routing strategy employed.\20\ Because the Exchange 
does not distinguish between ROUC and ROUE when yielding Flag K, the 
Exchange proposes to assess a charge of $0.0028 per share for Members 
orders that are routed to PSX using either ROUC or ROUE, which 
represents the more favorable of the two rates for its Members. The 
Exchange's proposal to offer its Members the more favorable of two 
rates is a reasonable pricing strategy because it is similar to the 
pricing strategy of Flag C on EDGA Exchange, Inc. (``EDGA''), where 
EDGA offers its customers the more favorable rebate of $0.0014 per 
share for orders routed to BX that remove liquidity regardless of 
whether the Member achieves the tiered volume necessary to exceed the 
default rebate of $0.0005 per share.\21\ In addition, the rate of 
$0.0028 per share for Flag K is reasonable because it is similar to the 
rates charged by PSX for orders routed to its exchange, where PSX 
assesses charges between $0.0028 per share and $0.0030 per share 
depending on the routing strategy employed.\22\ Lastly, the Exchange 
also believes that the proposed amendment is non-discriminatory because 
it applies uniformly to all Members.
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    \20\ See NASDAQ OMX PSX, Price List--Trading and Connectivity, 
http://www.nasdaqtrader.com/Trader.aspx?id=PSX_pricing.
    \21\ See Securities Exchange Release No. 67980 (October 4, 
2012), 77 FR 61800 (October 11, 2012) (SR-EDGA-2012-45).
    \22\ See NASDAQ OMX PSX, Price List--Trading and Connectivity, 
http://www.nasdaqtrader.com/Trader.aspx?id=PSX_pricing.
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    The Exchange's proposal to add the title ``EdgeBook Depth Fees'' to 
the fee schedule increases transparency on the fee schedule for Members 
and does not represent any change in EdgeBook Depth fees.
    The Exchange also notes that it operates in a highly-competitive 
market in which market participants can readily direct order flow to 
competing venues if they deem fee levels at a particular venue to be 
excessive. The proposed rule change reflects a competitive pricing 
structure designed to incent market participants to direct their order 
flow to the Exchange. The Exchange believes that the proposed rates are 
equitable and non-discriminatory in that they apply uniformly to all 
Members. The Exchange believes the fees and credits remain competitive 
with those charged by other venues and therefore continue to be 
reasonable and equitably allocated to Members.

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

    The proposed rule change does not impose any burden on competition 
that is not necessary or appropriate in furtherance of the purposes of 
the Act.

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

    The Exchange has not solicited, and does not intend to solicit, 
comments on this proposed rule change. The Exchange has not received 
any unsolicited written comments from Members or other interested 
parties.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A) of the Act \23\ and Rule 19b-4(f)(2) \24\ thereunder. At 
any time within 60 days of the filing of such proposed rule change, the 
Commission summarily may temporarily suspend such rule change if it 
appears to the Commission that such action is necessary or appropriate 
in the public interest, for the protection of

[[Page 67699]]

investors, or otherwise in furtherance of the purposes of the Act.
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    \23\ 15 U.S.C. 78s(b)(3)(A).
    \24\ 17 CFR 19b-4(f)(2).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please 
include File Number SR-EDGX-2012-46 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-EDGX-2012-46. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549, on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available 
for inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-EDGX-2012-46 and should be 
submitted on or before December 4, 2012.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\25\
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    \25\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-27492 Filed 11-9-12; 8:45 am]
BILLING CODE 8011-01-P