[Federal Register Volume 75, Number 249 (Wednesday, December 29, 2010)]
[Notices]
[Pages 82120-82121]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32729]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-63595; File No. SR-Phlx-2010-179]


Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change Relating to 
the Cancellation Fee

December 22, 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 December 16, 2010, NASDAQ OMX PHLX, Inc. (``Phlx'' or ``Exchange'') 
filed with the Securities and Exchange Commission (``SEC'' or 
``Commission'') the proposed rule change as described in Items I, II, 
and III, below, which Items have been prepared by the Exchange. 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.
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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 Fee Schedule to eliminate the 
Cancellation Fee for electronically delivered customer orders from 
Section II, Equity Options Fees, of the Fee Schedule.
    While changes to the Exchange's Fee Schedule pursuant to this 
proposal are effective upon filing, the Exchange has designated this 
proposal to be operative for trades occurring on and after January 3, 
2011.
    The text of the proposed rule change is available on the Exchange's 
Web site at http://nasdaqtrader.com/micro.aspx?id=PHLXfilings, 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 aspects of such 
statements.

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

1. Purpose
    The purpose of the proposed rule change is to amend the Exchange's 
Fee Schedule, specifically Section II, Equity Options Fees, to 
eliminate the Cancellation Fee for electronically delivered customer 
orders.
    Currently, the Exchange assesses a Cancellation Fee on 
electronically delivered Customer order for symbols other than the 
select symbols in Section I of the Fee Schedule \3\ and Professional 
All-or-None (``AON'') orders that are submitted by a member. The 
Exchange assesses $2.10 per order for each cancelled electronically 
delivered customer order and $1.10 per order for each cancelled 
electronically delivered AON order submitted by a Professional in 
excess of the number of AON orders submitted by a Professional executed 
on the Exchange by a member organization in a given month.\4\ A 
Cancellation Fee is not assessed in a month in which fewer than 500 
electronically delivered customer or AON orders submitted by a 
Professional, respectively, are cancelled.\5\
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    \3\ Section I of the Fee Schedule titled Rebates and Fees for 
Adding and Removing Liquidity in Select Symbols contains a list of 
symbols which apply to Section I of the Fee Schedule (``Select 
Symbols'').
    \4\ All customer or AON orders submitted by a Professional from 
the same member organization that are executed in the same series on 
the same side of the market at the same price within a 300 second 
period are aggregated and counted as one executed customer or AON 
option order submitted by a Professional.
    \5\ A Cancellation Fee does not apply to pre-market 
cancellations, Complex Orders that are submitted electronically, 
unexecuted Immediate-or-Cancel (``IOC'') customer orders or 
cancelled customer orders that improved the Exchange's prevailing 
bid or offer (``PBBO'') market at the time the customer orders were 
received by the Exchange.
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    The Exchange is proposing to amend the Cancellation Fee in Section 
II so that the Cancellation Fee would not apply to

[[Page 82121]]

customer orders. The Cancellation Fee would continue to apply to 
Professional AON orders in all symbols, both Select Symbols and non-
Select Symbols, and it would continue to not apply to any other type of 
Professional order.
    The Exchange recently amended the Fee Schedule to remove the 
Cancellation Fee for customer orders in the Select Symbols.\6\ The 
Exchange believes the Cancellation Fee is no longer required for 
customers to cover the cost of system utilization. In addition, the 
requirement to mark Professional orders has also alleviated some of the 
capacity issues that resulted from customer cancel orders.\7\ The 
Exchange believes that removing the Cancellation Fee for customer 
orders is appropriate because the concerns with system congestion have 
been alleviated by the requirement to mark Professional orders.
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    \6\ See Securities Exchange Act Release No. 63252 (November 5, 
2010), 75 FR 69486 (November 12, 2010) (SR-Phlx-2010-150).
    \7\ See Securities Exchange Act Release No. 61802 (April 5, 
2010), 75 FR 17193 (March 30, 2010) (SR-Phlx-2010-05).
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    While changes to the Exchange's Fee Schedule pursuant to this 
proposal are effective upon filing, the Exchange has designated this 
proposal to be operative for trades occurring on or after January 3, 
2011.
2. Statutory Basis
    The Exchange believes that its proposal to amend its Fee Schedule 
is consistent with Section 6(b) of the Act \8\ in general, and furthers 
the objectives of Section 6(b)(4) of the Act\9\ in particular, in that 
it is an equitable allocation of reasonable fees and other charges 
among Exchange members and other persons using its facilities. The 
Exchange believes that the proposed amendments to the customer 
Cancellation Fee are reasonable because they are no longer required to 
recover costs associated with excessive order cancellation activity. 
The Exchange believes that there should not be increased system 
congestion as a result of removing the customer Cancellation Fee.
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    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(4).
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    The Exchange believes that the Cancellation Fee is still necessary 
with respect to Professional AON orders because those orders are 
treated as customer orders for purposes of priority. Member 
organizations must indicate whether orders are for Professionals. The 
Exchange believes that this requirement to mark an order as 
Professional has shifted the source of the system congestion from 
customer orders to Professional AON orders. Continuing to assess a 
Cancellation Fee for Professional AON orders in all symbols should 
continue to ease system congestion and allow the Exchange to recover 
costs associated with excessive order cancellation activity.

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

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition 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

    No written comments were either solicited or 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 \10\ and paragraph (f)(2) of Rule 19b-4 \11\ 
thereunder. 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.
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    \10\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \11\ 17 CFR 240.19b-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

    <bullet> Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
    <bullet> Send an e-mail to <a href="/cdn-cgi/l/email-protection#394b4c555c145a5654545c574d4a794a5c5a175e564f"><span class="__cf_email__" data-cfemail="86f4f3eae3abe5e9ebebe3e8f2f5c6f5e3e5a8e1e9f0">[email protected]</span></a>. Please include 
File Number SR-Phlx-2010-179 on the subject line.

Paper Comments

    <bullet> 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-Phlx-010-179. 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,\12\ 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 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-
Phlx-2010-179 and should be submitted on or January 19, 2011.
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    \12\ The text of the proposed rule change is available on 
Exchange's Web site at http://nasdaqtrader.com/micro.aspx?id=PHLXfilings, on the Commission's Web site at http://www.sec.gov, at Phlx, and at the Commission's Public Reference Room.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\13\
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    \13\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-32729 Filed 12-28-10; 8:45 am]
BILLING CODE 8011-01-P


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