69492 Federal Register / Vol. 75, No. 218 / Friday, November 12, 2010 / Notices 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3 15 U.S.C. 78f. 

4 15 U.S.C. 78f(b)(4). 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–63259; File No. SR–BX– 

2010–075] 

Self-Regulatory Organizations; 

NASDAQ OMX BX, Inc.; Notice of Filing 

and Immediate Effectiveness of 

Proposed Rule Change To Amend the 

Fees Assessed for Use of the Testing 

Facility 

November 5, 2010. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Act’’),1 and Rule 19b–4 thereunder,2

notice is hereby given that on October 

29, 2010, NASDAQ OMX BX, Inc. 

(‘‘BX’’), 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 BX. The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

change from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of the Substance 

of the Proposed Rule Change 

BX proposes to amend the fees 

assessed for use of the Testing Facility. 

BX will implement the proposed rule 

change on November 1, 2010. 

The text of the proposed rule change 

is below. Proposed new language is 

italicized; proposed deletions are in 

brackets. 

* * * * * 

7030. Other Services 

(a)–(c) No change. 

(d) Testing Facility 

(1) Subscribers that conduct tests of 

their Exchange access protocols 

connection or market data vendor feeds 

through the Exchange’s Testing Facility 

(Testing Facility) shall pay $300 per 

port, per month.[the following charges: 

$285/hour—For Active Connection 

testing using current Exchange access 

protocols during the normal operating 

hours of the Testing Facility; 

No Charge—For Idle Connection testing 

using current Exchange access 

protocols; 

$333/hour—For Active Connection 

testing using current Exchange access 

protocols at all times other than the 

normal operating hours of the Testing 

Facility.] 

(2) No change. 

(3) The foregoing [hourly] fees shall 

not apply to [market data vendor feed 

testing, or] testing occasioned by: 

(A) New or enhanced services and/or 

software provided by the Exchange; 

(B) Modifications to software and/or 

services initiated by the Exchange in 

response to a contingency; or 

(C) Testing by a subscriber of an 

Exchange service that the subscriber has 

not used previously, except if more than 

30 days have elapsed since the 

subscriber commenced the testing of 

such Exchange service. 

* * * * * 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, BX 

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. BX 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 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

BX proposes to amend the fees 

assessed for use of the Testing Facility. 

The Testing Facility provides 

subscribers with a virtual BX System 

test environment that closely 

approximates the production 

environment, on which they may test 

their automated systems that integrate 

with BX. Subscribers may test upcoming 

BX releases and product enhancements, 

as well as test software prior to 

implementation. Currently, BX assesses 

a fee of $285 per hour for active 

connection testing using current BX 

access protocols during the normal 

operating hours, and $333 per hour for 

such testing after hours. 

BX does not currently assess a fee for 

idle test ports. Subscribers often have 

test ports assigned to them through 

which no testing is conducted for 

extended periods, yet BX must maintain 

and constantly monitor these idle 

testing ports for purposes of billing 

under the current rule. Such monitoring 

represents a cost to BX with no offsetting fee. Further, subscribers have no 

incentive to notify BX when they have 

completed testing and no longer require 

a test port. Accordingly, BX is proposing 

to eliminate the current hourly fee 

structure and assess a flat fee of $300 

per test port, per month. This fee will 

cover the cost of maintaining these test 

ports and provide an incentive to firms 

to cancel test ports when they have 

completed testing. 

BX notes that it will continue to allow 

new subscribers and existing 

subscribers to test new services and 

modifications initiated by BX, and to 

test new services not previously 

accessed for the first 30 days at no cost 

pursuant to Rule 7030(d)(3). This 30-day 

fee waiver includes testing for 

subscribers that are accessing BX 

through a service bureau for the first 

time. Subscribers must cancel the test 

port prior to the expiration of the 30-day 

free period in order to avoid future 

charges for test ports under the new 

rule. In addition, current subscribers 

will be able to cancel their idle ports at 

no cost at any point during the first 

month that the fee is effective. Further, 

BX is eliminating the word ‘‘hourly’’ 

from Rule 7030(d)(3), since the fees for 

the Testing Facility no longer include 

hourly fees. Last, BX is eliminating from 

Rule 7030(d)(3) language concerning 

market data feed testing, since it is 

superfluous given that the rule already 

references fees that include such testing. 

2. Statutory Basis 

BX believes that the proposed rule 

change is consistent with the provisions 

of Section 6 of the Act,3 in general, and 

with Section 6(b)(4) of the Act,4 in 

particular, in that it provides for the 

equitable allocation of reasonable dues, 

fees and other charges among members 

and issuers and other persons using any 

facility or system which BX operates or 

controls. The amended fee schedule 

applies to all subscribers equally based 

on the number of test ports subscribed. 

This proposed charge would apply to 

both members that obtain test ports for 

direct access and non-member service 

bureaus that act as a conduit for orders 

entered by BX members that are their 

customers. The proposed fees will cover 

the costs associated with separately 

offering the service, responding to 

customer requests, configuring BX’s 

systems, programming to user 

specifications, and administering the 

service, among other things, and may 

provide BX with a profit to the extent 

costs are covered. BX believes that the 

proposed fee structure strikes a balance 

between covering these costs, and 

providing incentives to subscribers to 

make efficient use of Test Facility ports. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

BX does not believe that the proposed 

rule change will result in any burden on 

mstockstill on DSKH9S0YB1PROD with NOTICES

Federal Register / Vol. 75, No. 218 / Friday, November 12, 2010 / Notices 69493 

5 15 U.S.C. 78s(b)(3)(a)(ii). 

6 17 CFR 240.19b–4(f)(2). 

7 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

competition that is not necessary or 

appropriate in furtherance of the 

purposes of the Act, as amended. 

C. Self-Regulatory Organization’s 

Statement on Comments Regarding the 

Proposed Rule Change Received From 

Members, Participants or Others 

Written comments were neither 

solicited nor received. 

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)(ii) of the Act 5 and 

subparagraph (f)(2) of Rule 19b–4 

thereunder.6 At any time within 60 days 

of the filing of the 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 

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 rulecomments@sec.gov. Please include File 

Number SR–BX–2010–075 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–2010–075. 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 

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– 

2010–075 and should be submitted on 

or before December 3, 2010. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.7

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. 2010–28541 Filed 11–10–10; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–63257; File No. SR–Phlx– 

2010–155] 

Self-Regulatory Organizations; 

NASDAQ OMX PHLX LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change To Amend the 

Fees Assessed for Use of the Testing 

Facility 

November 5, 2010. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Act’’), 1 and Rule 19b–4 thereunder, 2

notice is hereby given that on October 

29, 2010, NASDAQ OMX PHLX LLC 

(‘‘PHLX’’ or ‘‘Exchange’’), 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 PHLX. The Commission is 

publishing this notice to solicit 

comments on the proposed rule change 

from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of the Substance 

of the Proposed Rule Change 

PHLX proposes to amend the fees 

assessed for use of the Testing Facility. 

PHLX will implement the proposed rule 

change on November 1, 2010. 

The text of the proposed rule change 

is available on the Exchange’s Web site, 

at the principal office of the Exchange, 

on the Commission’s Web site at 

http://www.sec.gov, 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, 

PHLX 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. PHLX 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 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

PHLX proposes to amend the fees 

assessed for use of the Testing Facility. 

The Testing Facility provides 

subscribers with a virtual PHLX System 

test environment that closely 

approximates the production 

environment, on which they may test 

their automated systems that integrate 

with PHLX. Subscribers may test 

upcoming PHLX releases and product 

enhancements, as well as test software 

prior to implementation. Currently, 

PHLX assesses a fee of $285 per hour for 

active connection testing using current 

PHLX access protocols during the 

normal operating hours, and $333 per 

hour for such testing after hours. 

PHLX does not currently assess a fee 

for idle test ports. Subscribers often 

have test ports assigned to them through 

which no testing is conducted for 

extended periods, yet PHLX must 

maintain and constantly monitor these 

idle testing ports for purposes of billing 

under the current rule. Such monitoring 

represents a cost to PHLX with no offsetting fee. Further, subscribers have no 

incentive to notify PHLX when they 

have completed testing and no longer 

require a test port. Accordingly, PHLX 

is proposing to eliminate the current 

hourly fee structure and assess a flat fee 

of $300 per test port, per month. This 

mstockstill on DSKH9S0YB1PROD with NOTICES