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Federal Register / Vol. 86, No. 51 / Thursday, March 18, 2021 / Notices
the proposed allocation of fees. The Exchange further believes that the proposed changes would not permit unfair discrimination among ETP
Holders because the general and tiered rates are available equally to all ETP
Holders. As described above, in todays competitive marketplace, order flow providers have a choice of where to direct liquidity-providing order flow, and the Exchange believes there are additional ETP Holders that could qualify for Tier 1 if they chose to direct their order flow to the Exchange.

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Step Up Tier The Exchange believes that the proposed rule change to lower the volume requirement under Step Up Tier 1 is not unfairly discriminatory. The proposal neither targets nor will it have a disparate impact on any particular category of market participant. The proposal does not permit unfair discrimination because the lower threshold would be applied to all similarly situated ETP Holders, who would all be eligible for the same credit on an equal basis. Accordingly, no ETP
Holder already operating on the Exchange would be disadvantaged by this allocation of fees.
The Exchange believes it is not unfairly discriminatory to adopt lower volume requirements for ETP Holders to qualify for the Step Up Tier pricing tier as the proposed change would apply on an equal basis to all ETP Holders.
Further, the Exchange believes the proposed lower volume requirement would incentivize ETP Holders to execute more of their liquidityproviders orders on the Exchange to qualify for the credits payable under the Step Up Tier. The Exchange also believes that the proposed change is not unfairly discriminatory because it is reasonably related to the value of the Exchanges market quality associated with higher volume. The proposed lower volume requirement would apply equally to all ETP Holders as each would be required to meet the revised criteria.
Cross-Asset Tier 1
The Exchange believes the proposal to eliminate Cross-Asset Tier 1 is not unfairly discriminatory. As noted above, tn sic the prevailing competitive environment, ETP Holders are free to disfavor the Exchanges pricing if they believe that alternatives offer them better value.
Moreover, the proposal neither targets nor will it have a disparate impact on any particular category of market participant. The Exchange believes that the proposal does not permit unfair
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discrimination because the proposal would be applied to all similarly situated ETP Holders i.e., the tier wont be available for any ETP Holder.
Accordingly, no ETP Holder already operating on the Exchange would be disadvantaged by the proposed allocation of fees.
The Exchange believes that eliminating requirements and credits, and even entire pricing tiers from the Fee Schedule when such incentives become ineffective is equitable and not unfairly discriminatory because the requirements, and credits, and even entire pricing tiers would be eliminated in their entirety and would no longer be available to any ETP Holder.
Finally, the submission of orders to the Exchange is optional for ETP
Holders in that they could choose whether to submit orders to the Exchange and, if they do, the extent of its activity in this regard. The Exchange believes that it is subject to significant competitive forces, as described below in the Exchanges statement regarding the burden on competition.
For the foregoing reasons, the Exchange believes that the proposal is consistent with the Act.
B. Self-Regulatory Organizations Statement on Burden on Competition In accordance with Section 6b8 of the Act,20 the Exchange believes that the proposed rule change would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Instead, as discussed above, the Exchange believes that the proposed changes would encourage the submission of additional liquidity to a public exchange, thereby promoting market depth, price discovery and transparency and enhancing order execution opportunities for ETP Holders. As a result, the Exchange believes that the proposed change furthers the Commissions goal in adopting Regulation NMS of fostering integrated competition among orders, which promotes more efficient pricing of individual stocks for all types of orders, large and small. 21
Intramarket Competition. The Exchange believes the proposed amendments to its Fee Schedule would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange does not believe that the proposed change represents a significant 20 15

U.S.C. 78fb8.
Securities Exchange Act Release No. 51808, 70 FR 37495, 3749899 June 29, 2005 S71004
Final Rule.
21 See
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departure from previous pricing offered by the Exchange or its competitors. The proposed changes are designed to attract additional order flow to the Exchange.
The Exchange believes that the proposed adoption of new pricing tiers and amending criteria of established tiers would incentivize market participants to direct liquidity adding order flow to the Exchange, bringing with it additional execution opportunities for market participants and improved price transparency.
Greater overall order flow, trading opportunities, and pricing transparency benefits all market participants on the Exchange by enhancing market quality and continuing to encourage ETP
Holders to send orders, thereby contributing towards a robust and wellbalanced market ecosystem. The Exchange also does not believe the proposed rule change to eliminate underutilized pricing tiers will impose any burden on intramarket competition because the proposed change would impact all ETP Holders uniformly.
Intermarket Competition. The Exchange operates in a highly competitive market in which market participants can readily choose to send their orders to other exchange and offexchange venues if they deem fee levels at those other venues to be more favorable. As noted above, the Exchanges market share of intraday trading i.e., excluding auctions is currently less than 10%. In such an environment, the Exchange must continually adjust its fees and rebates to remain competitive with other exchanges and with off-exchange venues. Because competitors are free to modify their own fees and credits in response, and because market participants may readily adjust their order routing practices, the Exchange does not believe its proposed fee change can impose any burden on intermarket competition.
The Exchange believes that the proposed change could promote competition between the Exchange and other execution venues, including those that currently offer similar order types and comparable transaction pricing, by encouraging additional orders to be sent to the Exchange for execution.
C. Self-Regulatory Organizations Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were solicited or received with respect to the proposed rule change.

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