[Federal Register Volume 76, Number 181 (Monday, September 19, 2011)]
[Notices]
[Pages 58065-58068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-23909]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-65330; File No. SR-BX-2011-046]
Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Suspension of
and Order Instituting Proceedings To Determine Whether To Approve or
Disapprove a Proposed Rule Change To Amend the BOX Fee Schedule With
Respect to Credits and Fees for Transactions in the BOX Price
Improvement Period
September 13, 2011.
I. Introduction
On July 15, 2011, NASDAQ OMX BX, Inc. (the ``Exchange'') filed with
the Securities and Exchange Commission (the ``Commission''), pursuant
to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Exchange
Act'' or ``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule
change to amend the Fee Schedule of the Boston Options Exchange Group,
LLC (``BOX'') to increase the credits and fees for certain transactions
in the BOX Price Improvement Period (``PIP'').\3\ The proposed rule
change was immediately effective upon filing with the Commission
pursuant to Section 19(b)(3)(A) of the Act.\4\ Notice of filing of the
proposed rule change was published in the Federal Register on August 3,
2011.\5\
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ The PIP is a mechanism in which a BOX Options Participant
submits an agency order on behalf of a customer for price
improvement, paired with a contra-order guaranteeing execution of
the agency order at or better than the National Best Bid or Offer
(``NBBO''). The contra-order could be for the account of the Options
Participant, or an order solicited from someone else. The agency
order is exposed for a one-second auction in which other BOX Options
Participants may submit competing interest at the same price or
better. The initiating BOX Options Participant is guaranteed 40% of
the order (after public customers) at the final price for the PIP
order, assuming it is at the best price. See Chapter V, Section 18
of the BOX Rules.
\4\ 15 U.S.C. 78s(b)(3)(A).
\5\ See Securities Exchange Act Release No. 64981 (July 28,
2011) 76 FR 46858 (``Notice'').
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Under Section 19(b)(3)(C) of the Act, the Commission is (1) hereby
temporarily suspending File No. SR-BX-2011-046, and (2) instituting
proceedings to determine whether to approve or disapprove File No. SR-
BX-2011-046.
II. Summary of the Proposed Rule Change
The Exchange proposes to increase the credits and fees for certain
transactions in the PIP by modifying Section 7d of the BOX Fee
Schedule. Specifically, the Exchange proposes to: (1) Increase both the
credits and the fees for PIP transactions in classes that are not
subject to the Penny Pilot (``Non-Penny classes'') from $0.30 to $0.75
per contract; and (2) increase both the credits and the fees for PIP
transactions in Penny Pilot classes where the trade price is equal to
or greater than $3.00 per contract (other than in QQQQ, SPY, and IWM)
from $0.30 to $0.75 per contract. The credits and the fees for PIP
transactions in QQQQ, SPY, and IWM and in all other Penny Pilot classes
where the trade price is less than $3.00 per contract will remain at
$0.30 per contract. The credits are paid by the Exchange on the agency
order that is submitted to the PIP auction on behalf of a customer. The
fees are charged by the Exchange to the order that is executed against
the agency order, whether such order is a paired order submitted by the
BOX Options Participant that also submitted the agency order or an
order submitted by another BOX Options Participant in response to the
PIP auction. The credits and fees are in addition to any applicable
trading fees, as described in Sections 1 through 3 of the BOX Fee
Schedule.\6\
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\6\ Sections 1 through 3 of the Box Fee Schedule include a $0.25
per contract transaction fee for contracts traded in the PIP.
Depending on its average daily volume (``ADV''), a Participant who
initiates PIP auctions may be charged a lower per contract fee. See
Section 7d. of the Box Fee Schedule. See also infra note 9.
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III. Suspension of SR-BX-2011-046
Pursuant to Section 19(b)(3)(C) of the Act,\7\ at any time within
60 days of the date of filing a proposed rule change pursuant to
Section 19(b)(1) of the Act,\8\ the Commission summarily may
temporarily suspend the change in the rules of a self-regulatory
organization 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.
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\7\ 15 U.S.C. 78s(b)(3)(C).
\8\ 15 U.S.C. 78s(b)(1).
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The Commission believes it is appropriate to evaluate the effect of
the proposed rule change on competition among different types of market
participants and on market quality, particularly with respect to the
net fee differential that it would place on BOX Options Participants
that respond to a PIP auction (``PIP Responders'') compared to a BOX
Options Participant that initiated the PIP auction (``PIP Initiator'').
Under the proposed rule change, the Exchange would charge
[[Page 58066]]
both the PIP Initiator and the PIP Responder the same fee for executing
an order in the PIP. However, if the PIP Initiator also submits the
agency order into the PIP, the PIP Initiator receives the rebate paid
to the agency order that is auctioned in the PIP. As a result, if the
fee the PIP Initiator pays is aggregated with the rebate the PIP
Initiator receives for the agency order (i.e., a ``net'' fee), the PIP
Initiator would pay a lower net fee compared to PIP Responders. For
example, under the proposal, a PIP Initiator that executes 100% of the
PIP Order in a Non-Penny class would be charged a $0.10 per contract
base transaction fee (at the highest volume tier) \9\ plus a liquidity
provider fee of $0.75 per contract, and would receive a credit for
removing liquidity of $0.75 for the agency order. This results in a net
fee of $0.10 per contract to a PIP Initiator who executes 100% of its
customer's order. In contrast, a PIP Responder in a Non-Penny class
would be charged a $0.25 per contract base transaction fee plus the
liquidity provider fee of $0.75 per contract, for a net fee of $1.00
per contract. Comparing the net fees charged to PIP Initiators to those
charged to PIP Responders, the largest potential disparity is $0.90 per
contract.
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\9\ See Section 7d. of the BOX Fee Schedule. Section 7d.
includes a tiered fee schedule that is assessed on PIP Initiators
based on each PIP Initiator ADV for executions in the PIP. This
charge ranges from $0.10 per contract for a PIP Initiator with an
ADV of 150,001 or greater contracts to $0.25 per contract for a PIP
Initiator with an ADV of less than 20,001 contracts.
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In its filing, the Exchange notes its belief that the changes to
the PIP transaction fees and credits are ``competitive, fair and
reasonable, and non-discriminatory in that they apply to all categories
of participants and across all account types.'' \10\ The Exchange
further argues that the proposed fee change is reasonable because it
``is fair and reasonable as applied only to the specified classes and
transactions because such options trade at minimum increments of $0.05
or $0.10, providing greater opportunity for market participants to
offer additional price improvement.'' \11\ In addition, the Exchange
noted that it believes the proposed ``credit will attract additional
order flow to BOX and to the PIP in particular, to the benefit of all
market participants.'' \12\ The Exchange also stated that the proposal
``will allow the fees charged on BOX to remain competitive with other
exchanges as well as apply such fees in a manner which is equitable
among all BOX Participants.'' \13\
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\10\ See Notice, supra note 5, at 46858.
\11\ See id. at 46859.
\12\ See id.
\13\ See id.
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To date, the Commission has received four comment letters on the
Exchange's proposed rule change.\14\ Three commenters recommend that
the Commission temporarily suspend SR-BX-2011-046 and institute
proceedings to disapprove the filing.\15\ The fourth commenter supports
the Exchange's proposed rule change and urges the Commission not to
institute proceedings to disapprove the filing.\16\ The Commission also
has received a letter from the Exchange responding to the comments
received.\17\
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\14\ See letters to Elizabeth Murphy, Secretary, Commission,
from John C. Nagel, Managing Director and General Counsel, Citadel
Securities LLC (``Citadel''), dated August 12, 2011 (``Citadel
Letter''); Andrew Stevens, Legal Counsel, IMC Financial Markets
(``IMC''), dated August 15, 2011 (``IMC Letter''); Michael J. Simon,
Secretary, International Securities Exchange (``ISE''), dated August
22, 2011 (``ISE Letter''), and Christopher Nagy, Managing Director
Order Strategy, TD Ameritrade, Inc. (``TD Ameritrade''), dated
September 12, 2011 (``TD Ameritrade Letter'').
\15\ See Citadel Letter, supra note 14, at 4; IMC Letter, supra
note 14, at 4; and ISE Letter, supra note 14, at 5.
\16\ See TD Ameritrade Letter, supra note 14, at 2.
\17\ See letter to Elizabeth Murphy, Secretary, Commission, from
Anthony D. McCormick, Chief Executive Officer, Boston Options
Exchange, dated September 9, 2011 (``BOX Letter'').
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Citadel argues that the magnitude of the disparity between the fees
an initiator pays and the fees a competitive responder pays, on a net
basis, make it ``economically prohibitive for anyone other than the
initiator to respond'' to a PIP auction. Citadel also provides
statistics suggesting that increases to the BOX PIP fees \18\ are
``reducing price improvement opportunities for customers and turning
the PIP and BOX into an NBBO internalization engine.'' \19\ Based on
its analysis, Citadel argues that the fees proposed by SR-BX-2011-046
are ``solely structured to benefit one group of BOX participants over
another,'' and thus are discriminatory and an undue burden one
competition.\20\
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\18\ See Securities Exchange Act Release Nos. 62632 (August 3,
2010), 75 FR 47869 (August 9, 2010) (SR-BX-2010-049) (instituting
the PIP pricing structure) and 64198 (April 6, 2011), 76 FR 20426
(April 12, 2011) (SR-BX-2011-020) (increasing the fee and credit).
\19\ See Citadel Letter, supra note 14, at 3. Citadel's
statistics show that, since February 2011, the average price
improvement per contract and average percentage of contracts price
improved in PIP auctions has declined every month. See id. at 3.
\20\ Id.
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IMC also notes its belief that the BOX PIP fee structure unduly
burdens competition and unreasonably discriminates amongst
participants.\21\ It argues that the increase in fees is borne solely
by PIP competitive responders and ``will deter anyone other than the
initiator from providing liquidity via the PIP.'' \22\ IMC believes
that ``the BOX has thus erected an unreasonable barrier to
participation, effectively barring certain participants from competing
with PIP initiators.'' \23\ IMC believes that BOX's fee structure is
designed to reduce competition and increase internalization in the PIP,
which in turn results in ``reduced opportunities for meaningful price
improvement.'' \24\
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\21\ See IMC Letter, supra note 14, at 1-2.
\22\ See IMC Letter, supra note 14, at 2.
\23\ See id.
\24\ See IMC Letter, supra note 14, at 3.
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ISE challenges BOX's assertion that the fees proposed in SR-BX-
2011-046 have a uniform application across all members, noting that the
differential fees between PIP Initiators and competitive responders is
between $0.75 and $0.90 per contract.\25\ ISE also argues that SR-BX-
2011-046 is deficient in that it fails to: provide an adequate basis to
determine that the proposed rule change is consistent with the Act
because it does not address the pricing differential for participants
who seek to compete with a PIP Initiator, discuss the burden on
competition imposed by the pricing structure, or provide support for
its assertion that the fee change will allow it to compete with other
exchanges.\26\
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\25\ See ISE Letter, supra note 14, at 1.
\26\ See ISE Letter, supra note 14, at 5.
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TD Ameritrade applauds the proposed rule change, noting that it has
already seen significant benefits to its retail investors.\27\ TD
Ameritrade notes that its clients received over $600,000 in price
improvement over the NBBO on BOX in August 2011 and believes that its
customer experience on the BOX strongly indicates that healthy and
robust competition exists within the PIP.\28\ TD Ameritrade states that
the BOX fee structure provides incentives for market participants to
submit customer order flow to BOX and thus, continues to create a
greater opportunity for retail customers to receive additional price
improvement.\29\
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\27\ See TD Ameritrade Letter, supra note 14, at 1.
\28\ See id.
\29\ See id. TD Ameritrade suggests that the Commission should
recognize that price improvement opportunities in the options
markets are not transparent and easy to compare from exchange to
exchange and notes its belief that there should be more order
execution information transparency in the options markets. See TD
Ameritrade Letter, supra note 14, at 2.
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In its response letter, BOX argues that its market model and fee
structure are intended to benefit retail customers.\30\ BOX responds to
the assertions that the fee structure is discriminatory and
[[Page 58067]]
impedes competition by providing PIP statistics showing that the
retention rate (the amount of an agency order allocated to a PIP
Initiator) in nickel classes in July 2011was approximately 38%.\31\ BOX
notes that this retention rate is lower than the 40% guarantee
permitted to be allocated to an initiating participant and states that
this statistic indicates ``definitive competition within the PIP.''
\32\ It also notes that average price improvement per contract in PIP
transactions increased from $0.0062 in July 2011 to $0.0087 in August
2011, in part as a result of the proposed rule change.\33\ BOX responds
to the assertion that Initiating Participant can offset any fee with a
credit by stating that ``most PIP transactions are initiated by a
market maker acting independently of a Participant acting as agent for
a customer order.'' \34\ Further BOX states that its fee structure in
the PIP is more transparent than payment for order flow (``PFOF'')
arrangements and notes its belief that the credit to remove liquidity
on BOX is generally less than what firms receive through PFOF.\35\ BOX
states that since the PIP began operating in 2004, customers have
received more than $355 million in savings through better executions on
BOX, including $7.3 million in August 2011, and states its belief that
the proposal is consistent with the public interest, and with the
Exchange Act.\36\
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\30\ See BOX Letter, supra note 17, at 2.
\31\ See BOX Letter, supra note 17, at 1.
\32\ See id.
\33\ See id.
\34\ BOX Letter, supra note 17, at 1.
\35\ See BOX Letter, supra note 17, at 2.
\36\ See id.
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The Commission intends to assess whether the potential resulting
fee disparity between PIP Initiators and PIP Responders (as high as
$0.90 per contract) is consistent with the statutory requirements
applicable to a national securities exchange under the Act, as
described below. In particular, the Commission will assess whether the
proposal satisfies the standards under the Exchange Act and the rules
thereunder requiring, among other things, that exchange rules: provide
for the equitable allocation of reasonable fees among members, issuers,
and other persons using its facilities; not be designed to permit
unfair discrimination between customers, issuers, brokers, or dealers;
and do not impose any burden on competition not necessary or
appropriate in furtherance of the purposes of the Exchange Act.
Therefore, the Commission finds that it is appropriate in the
public interest, for the protection of investors, and otherwise in
furtherance of the purposes of the Act, to temporarily suspend the
proposed rule change.
IV. Proceedings To Determine Whether To Approve or Disapprove SR-BX-
2011-046
The Commission is instituting proceedings pursuant to Sections
19(b)(3)(C) \37\ and 19(b)(2) of the Act \38\ to determine whether the
Exchange's proposed rule change should be approved or disapproved.
Pursuant to Section 19(b)(2)(B) of the Act,\39\ the Commission is
providing notice of the grounds for disapproval under consideration. As
discussed above, under the proposal, the PIP Initiator could pay a
lower net fee compared to PIP Responders. The Exchange Act and the
rules thereunder require that exchange rules provide for the equitable
allocation of reasonable fees among members, issuers, and other persons
using its facilities; that exchange rules not be designed to permit
unfair discrimination between customers, issuers, brokers, or dealers;
and that exchange rules do not impose any burden on competition not
necessary or appropriate in furtherance of the purposes of the Exchange
Act. The Commission intends to assess whether BOX's proposal is
consistent with these and other Exchange Act standards.
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\37\ 15 U.S.C. 78s(b)(3)(C). Once the Commission temporarily
suspends a proposed rule change, Section 19(b)(3)(C) of the Act
requires that the Commission institute proceedings under Section
19(b)(2)(B) to determine whether a proposed rule change should be
approved or disapproved.
\38\ 15 U.S.C. 78s(b)(2).
\39\ 15 U.S.C. 78s(b)(2)(B). Section 19(b)(2)(B) of the Act also
provides that proceedings to determine whether to disapprove a
proposed rule change must be concluded within 180 days of the date
of publication of notice of the filing of the proposed rule change.
Id. The time for conclusion of the proceedings may be extended for
up to 60 days if the Commission finds good cause for such extension
and publishes its reasons for so findings. Id.
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The Commission believes it is appropriate in the public interest to
institute disapproval proceedings at this time in view of the
significant legal and policy issues raised by the proposal. Institution
of disapproval proceedings does not indicate, however, that the
Commission has reached any conclusions with respect to the issues
involved. The sections of the Act and the rules thereunder that are
applicable to the proposed rule change include:
Section 6(b)(4) of the Act, which requires 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,'' \40\
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\40\ 15 U.S.C. 78f(b)(4).
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Section 6(b)(5) of the Act, which requires, among other
things, that the rules of a national securities exchange not be
``designed to permit unfair discrimination between customers, issuers,
brokers, or dealers,'' \41\ and
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\41\ 15 U.S.C. 78f(b)(5).
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Section 6(b)(8) of the Act, which requires that the rules
of a national securities exchange ``not impose any burden on
competition not necessary or appropriate in furtherance of the purposes
of [the Exchange Act].'' \42\
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\42\ 15 U.S.C. 78f(b)(8).
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V. Commission's Solicitation of Comments
The Commission requests written views, data, and arguments with
respect to the concerns identified above as well as any other relevant
concerns. Such comments should be submitted by November 3, 2011.
Rebuttal comments should be submitted by November 18, 2011. Although
there do not appear to be any issues relevant to approval or
disapproval which would be facilitated by an oral presentation of
views, data, and arguments, the Commission will consider, pursuant to
Rule 19b-4, any request for an opportunity to make an oral
presentation.\43\
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\43\ 15 U.S.C. 78s(b)(2). Section 19(b)(2) of the Act grants the
Commission flexibility to determine what type of proceeding--either
oral or notice and opportunity for written comments--is appropriate
for consideration of a particular proposal by a self-regulatory
organization. See Securities Acts Amendments of 1975, Report of the
Senate Committee on Banking, Housing and Urban Affairs to Accompany
S. 249, S. Rep. No. 75, 94th Cong., 1st Sess. 30 (1975).
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The Commission asks that commenters address the sufficiency and
merit of the Exchange's statements in support of the proposal, in
addition to any other comments they may wish to submit about the
proposed rule change. For example, the Commission seeks comment and
specific data on the following:
Whether, as stated by commenters, the fee structure in the
PIP and this proposed fee change, in particular, have impacted or will
impact incentives to compete in the PIP and, if so, how specifically
have or will the fee structure in the PIP and this proposed fee change
impacted incentives to compete;
Whether the proposed fee change will affect the quality of
execution of customer orders in the PIP or the broader market quality,
such as quoted spreads or overall execution quality; and if so, how and
what type of impact will this have;
Whether the proposed fee change and PIP fee structure
reduce the benefits
[[Page 58068]]
of exposing an order \44\ and thus potentially create a de facto
internalization mechanism; and if so, whether, and if so, how, this
will adversely impact overall market quality and customer execution
quality and whether a de facto internalization mechanism should be of
concern to the Commission;
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\44\ The Commission has recognized the benefits of exposure to
the market, noting in the context of facilitation mechanisms that an
``auction [in which an order is exposed to the market] provides some
assurance that the customer's order is executed at the best price
any member in that market is willing to offer.'' Competitive
Developments in the Options Markets, Securities Exchange Act Release
No. 49175, 69 FR 6124 (February 9, 2004), at 6130. The Commission
also noted that ``[r]ules or practices that permit or encourage
internalization may also reduce intramarket price competition and,
therefore, cause spreads to widen.'' Id.
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Whether the proposed fee change, by facilitating
internalization of orders on BOX, could or would lead to a shift of
order flow from other exchanges and, if so, what is the nature and
volume of such order flow and what is the extent to which such order
flow currently receives price improvement at the other exchanges or is
executed at prices that merely match the NBBO;
Whether BOX's other fees, specifically the fee to add
liquidity to the BOX book,\45\ have an impact on the application or
effects of this proposed fee change, and if so, how and what the impact
is or will be;
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\45\ As of September 1, 2011, BOX charges a $0.65 fee for adding
liquidity in the Non-Penny classes and a $0.22 fee for adding
liquidity in the Penny Pilot classes. See Section 7a. of the BOX Fee
Schedule, available at http://www.bostonoptions.com/pdf/BOX_Fee_Schedule.pdf.
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Whether the filing for SR-BX-2011-046 was sufficient under
Section 19(b) of the Act to address issues regarding the effects of the
proposed fee change on competition in the PIP;
Whether the PIP fees, either on a net basis or otherwise,
are comparable to any fees or charges on other exchanges, including any
PFOF fees and rebates, and, if so, how;
Whether credits paid on the agency order that is submitted
to the PIP auction on behalf of a customer are passed on to the
customer or retained by the PIP Initiator and, if passed on, in what
form; and
Whether the Commission should evaluate all fees and all
rebates (including PFOF fees and rebates) at all exchanges on a net or
aggregate basis to assess their effects on competition or to otherwise
assess their consistency with the Exchange Act.
Interested persons are invited to submit written data, views, and
arguments concerning the proposed rule change, 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 [email protected]. Please include
File Number SR-BX-2011-046 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-BX-2011-046. The 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 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
a.m. and 3 p.m. Copies of such 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 publicly available. All
submissions should refer to File Number SR-BX-2011-046 and should be
submitted on or before November 3, 2011. Rebuttal comments should be
submitted by November 18, 2011.
VI. Conclusion
It is therefore ordered, pursuant to Section 19(b)(3)(C) of the
Act,\46\ that File No. SR-BX-2011-046, be and hereby is, temporarily
suspended. In addition, the Commission is instituting proceedings to
determine whether the proposed rule change should be approved or
disapproved.
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\46\ 15 U.S.C. 78s(b)(3)(C).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\47\
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\47\ 17 CFR 200.30-3(a)(57) and (58).
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Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-23909 Filed 9-16-11; 8:45 am]
BILLING CODE 8011-01-P