Federal Register, Volume 74 Issue 139 (Wednesday, July 22, 2009)

[Federal Register Volume 74, Number 139 (Wednesday, July 22, 2009)]
[Notices]
[Pages 36293-36294]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-17352]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60313; File No. SR-BATS-2009-023]

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

July 15, 2009.
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 July 9, 2009, BATS Exchange, Inc. (the ``Exchange'' or
``BATS'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II
and III below, which Items have been prepared by the Exchange. BATS has
designated the proposed rule change as one establishing or changing a
member due, fee, or other charge imposed by the Exchange under Section
19(b)(3)(A)(ii) of the Act \3\ and Rule 19b-4(f)(2) thereunder,\4\
which renders the proposed rule change effective upon filing with the
Commission. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 15 U.S.C. 78s(b)(3)(A)(ii).
\4\ 17 CFR 240.19b-4(f)(2).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

The Exchange proposes to modify BATS Rule 15.1, entitled
``Authority to Prescribe Dues, Fees, Assessments and Other Charges,''
effective immediately.
The text of the proposed rule change is available at the Exchange's
Web site at http://www.batstrading.com, at the principal office of the
Exchange, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
The Exchange proposes to modify BATS Rule 15.1 to adopt new
paragraph (d), which will allow the Exchange to pass on certain,
specific fees that it is charged by the company that operates the data
center where the Exchange's System \5\ is located, as described in
further detail below.
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\5\ The term ``System'' is defined in BATS Rule 1.5(aa).
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Exchange Members wishing to co-locate their trading hardware to the
Exchange's System can do so by leasing space directly from the company
that owns the data center. The Exchange has no involvement in
determining the terms of any fees paid by the Member to lease co-
location space and does not receive any proceeds from such fee. Certain
Members of the Exchange maintain a co-location relationship with
another Trading Center's \6\ system that is located in the same data
center as the Exchange. To co-locate to the Exchange, rather than
leasing additional space near the Exchange's System, some Members
choose instead to simply cross-connect their existing trading hardware
from the space near another Trading Center's system to the Exchange's
System. In such cases, the company that owns the data center charges
the Exchange a monthly cross-connection fee. Pursuant to the proposed
rule the Exchange will pass this cross connection fee on, in full, to
the applicable Member.
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\6\ The term ``Trading Center'' is defined in BATS Rule 2.11.
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2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with the requirements of the Act and the

[[Page 36294]]

rules and regulations thereunder that are applicable to a national
securities exchange, and, in particular, with the requirements of
Section 6 of the Act.\7\ Specifically, the Exchange believes that the
proposed rule change is consistent with Section 6(b)(4) of the Act,\8\
in that it provides for the equitable allocation of reasonable dues,
fees and other charges among members and other persons using any
facility or system which the Exchange operates or controls. The
Exchange notes that in the current, competitive market environment,
market participants can connect to numerous competing venues in
numerous different ways, and that the Exchange currently does not
charge any direct fees for connecting to the Exchange. In addition, the
fees applied through the proposed rule will not result in any direct
revenue for the Exchange, but rather, are a pass-through of fees
charged to the Exchange as a result of certain Member's connections to
the Exchange.
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\7\ 15 U.S.C. 78f.
\8\ 15 U.S.C. 78f(b)(4).
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B. Self-Regulatory Organization's Statement on Burden on Competition

The Exchange does not believe that the proposed rule change imposes
any burden on competition.

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

No written comments were solicited or received.

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

The foregoing proposed rule change has been designated as a fee
change pursuant to Section 19(b)(3)(A)(ii) of the Act \9\ and Rule 19b-
4(f)(2) thereunder,\10\ because it establishes or changes a due, fee or
other charge imposed on members by the Exchange. Accordingly, the
proposal is effective upon filing with the Commission.
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\9\ 15 U.S.C. 78s(b)(3)(A)(ii).
\10\ 17 CFR 240.19b-4(f)(2).
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At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.

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 e-mail to rule-comments@sec.gov. Please include
File Number SR-BATS-2009-023 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-2009-023. 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 self-regulatory
organization. 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-2009-023 and should be submitted on or before August 12, 2009.

For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
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\11\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-17352 Filed 7-21-09; 8:45 am]
BILLING CODE 8010-01-P