[Federal Register Volume 76, Number 158 (Tuesday, August 16, 2011)]
[Notices]
[Pages 50805-50807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20705]



[[Page 50805]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-65084; File No. SR-ISE-2011-49]


Self-Regulatory Organizations; International Securities Exchange, 
LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule 
Change Relating to Fees and Rebates for Certain Complex Orders

August 10, 2011.
    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 29, 2011, the International Securities Exchange, LLC (the 
``Exchange'' or the ``ISE'') filed with the Securities and Exchange 
Commission (the ``Commission'') the proposed rule change, as described 
in Items I, II, and III below, which items have been prepared by the 
self-regulatory organization. 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 ISE is proposing to amend transaction fees and rebates for 
certain complex orders executed on the Exchange. The text of the 
proposed rule change is available on the Exchange's Web site (http://www.ise.com), on the Commission's Web site at http://www.sec.gov, 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 self-regulatory organization 
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 self-regulatory organization 
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 Exchange currently assesses a per contract transaction charge 
to market participants that add or remove liquidity from the Exchange 
(``maker/taker fees'') in 100 options classes (the ``Select 
Symbols'').\3\ For complex orders in the Select Symbols, the Exchange 
currently charges a take fee of: (i) $0.30 per contract for Market 
Maker, Market Maker Plus,\4\ Firm Proprietary and Customer 
(Professional) \5\ orders; and (ii) $0.35 per contract for Non-ISE 
Market Maker \6\ orders. Priority Customer \7\ orders, regardless of 
size, are not assessed a fee for adding or removing liquidity from the 
Complex Order book. The Exchange now proposes to change the take fees 
for complex orders in a select number of options classes (``Designated 
Symbols''), as follows: (i) For Market Maker, Market Maker Plus, Firm 
Proprietary and Customer (Professional) complex orders, from $0.30 per 
contract to $0.31 per contract, and (ii) for Non-ISE Market Maker 
complex orders, from $0.35 per contract to $0.36 per contract. The 
Exchange is not proposing any change to fees for Priority Customer 
complex orders in the Designated Symbols. The Designated Symbols are 
AAPL, BAC, C, F, GLD, INTC, IWM, JPM, QQQ, SLV, SPY and XLF.
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    \3\ Options classes subject to maker/taker fees are identified 
by their ticker symbol on the Exchange's Schedule of Fees. See 
Securities Exchange Act Release Nos. 61869 (April 7, 2010), 75 FR 
19449 (April 14, 2010) (SR-ISE-2010-25), 62048 (May 6, 2010), 75 FR 
26830 (May 12, 2010) (SR-ISE-2010-43), 62282 (June 11, 2010), 75 FR 
34499 (June 17, 2010) (SR-ISE-2010-54), 62319 (June 17, 2010), 75 FR 
36134 (June 24, 2010) (SR-ISE-2010-57), 62508 (July 15, 2010), 75 FR 
42809 (July 22, 2010) (SR-ISE-2010-65), 62507 (July 15, 2010), 75 FR 
42802 (July 22, 2010) (SR-ISE-2010-68), 62665 (August 9, 2010), 75 
FR 50015 (August 16, 2010) (SR-ISE-2010-82), 62805 (August 31, 
2010), 75 FR 54682 (September 8, 2010) (SR-ISE-2010-90), 63283 
(November 9, 2010), 75 FR 70059 (November 16, 2010) (SR-ISE-2010-
106), 63534 (December 13, 2010), 75 FR 79433 (December 20, 2010) 
(SR-ISE-2010-114); 63664 (January 6, 2011), 76 FR 2170 (January 12, 
2011) (SR-ISE-2010-120); and 64303 (April 15, 2011), 76 FR 22425 
(April 21, 2011) (SR-ISE-2011-18).
    \4\ A Market Maker Plus is a market maker who is on the National 
Best Bid or National Best Offer 80% of the time for series trading 
between $0.03 and $5.00 (for options whose underlying stock's 
previous trading day's last sale price was less than or equal to 
$100) and between $0.10 and $5.00 (for options whose underlying 
stock's previous trading day's last sale price was greater than 
$100) in premium in each of the front two expiration months and 80% 
of the time for series trading between $0.03 and $5.00 (for options 
whose underlying stock's previous trading day's last sale price was 
less than or equal to $100) and between $0.10 and $5.00 (for options 
whose underlying stock's previous trading day's last sale price was 
greater than $100) in premium across all expiration months in order 
to receive the rebate. The Exchange determines whether a market 
maker qualifies as a Market Maker Plus at the end of each month by 
looking back at each market maker's quoting statistics during that 
month. If at the end of the month, a market maker meets the 
Exchange's stated criteria, the Exchange rebates $0.10 per contract 
for transactions executed by that market maker during that month. 
The Exchange provides market makers a report on a daily basis with 
quoting statistics so that market makers can determine whether or 
not they are meeting the Exchange's stated criteria.
    \5\ A Customer (Professional) is a person who is not a broker/
dealer and is not a Priority Customer.
    \6\ A Non-ISE Market Maker, or Far Away Market Maker 
(``FARMM''), is a market maker as defined in Section 3(a)(38) of the 
Securities Exchange Act of 1934, as amended (``Exchange Act''), 
registered in the same options class on another options exchange.
    \7\ A Priority Customer is defined in ISE Rule 100(a)(37A) as a 
person or entity that is not a broker/dealer in securities, and does 
not place more than 390 orders in listed options per day on average 
during a calendar month for its own beneficial account(s).
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    Additionally, ISE Market Makers who remove liquidity in the Select 
Symbols from the Complex Order book by trading with orders that are 
preferenced to them are currently charged $0.28 per contract. The 
Exchange now proposes to change the take fee to $0.29 per contract for 
ISE Market Makers who remove liquidity in the Designated Symbols from 
the Complex Order book by trading with orders that are preferenced to 
them. The Exchange notes that NASDAQ OMX PHLX, Inc. (``PHLX'') 
currently assesses a fee for complex orders for certain symbols that 
are preferenced to market makers at that exchange at a rate of $0.27 
per contract. For regular complex orders that remove liquidity in those 
symbols, PHLX charges its market makers a take fee of $0.29 per 
contract. With this proposed fee change, ISE will maintain the two cent 
differential that is currently in place at PHLX.\8\
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    \8\ See PHLX Fee Schedule at http://www.nasdaqtrader.com/content/marketregulation/membership/phlx/feesched.pdf.
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    Finally, as an incentive for members to direct customer order flow 
to the Exchange, Priority Customer complex orders in the Select 
Symbols, regardless of size, currently receive a rebate of $0.25 per 
contract on all legs when these orders trade with non-customer orders 
in the Exchange's Complex Order book. The Exchange proposes to increase 
this rebate to $0.26 per contract. The Exchange believes it is 
necessary to pay a rebate for Customer complex orders in the Designated 
Symbols in order to continue to attract Customer complex order flow to 
the Exchange.
    The Exchange has designated this proposal to be operative on August 
1, 2011.

[[Page 50806]]

2. Statutory Basis
    The Exchange believes that its proposal to amend its Schedule of 
Fees is consistent with Section 6(b) of the Act \9\ in general, and 
furthers the objectives of Section 6(b)(4) of the Act \10\ in 
particular, in that it is an equitable allocation of reasonable dues, 
fees and other charges among Exchange members and other persons using 
its facilities. The impact of the proposal upon the net fees paid by a 
particular market participant will depend on a number of variables, 
most important of which will be its propensity to add or remove 
liquidity in options overlying the Designated Symbols.
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(4).
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    The Exchange believes that the proposed fees for options overlying 
the Designated Symbols remain competitive with fees charged by other 
exchanges and are therefore reasonable and equitably allocated to those 
members that opt to direct orders to the Exchange rather than to a 
competing exchange. The Exchange believes that its proposal to assess a 
$0.31 per contract take fee for Market Maker, Market Maker Plus, Firm 
Proprietary and Customer (Professional) complex orders in the 
Designated Symbols, and $0.36 per contract take fee for Non-ISE Market 
Maker complex orders, is reasonable because the fee is within the range 
of fees assessed by other exchanges employing similar pricing schemes. 
For example, the proposed take fees for complex orders are comparable 
to rates assessed by PHLX. PHLX currently assesses a take fee of $0.29 
per contract to its market makers, $0.30 per contract for Firm and 
Professional orders and $0.35 per contract for Broker-Dealer orders in 
a number of symbols in its complex order book.\11\
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    \11\ See PHLX Fee Schedule at http://www.nasdaqtrader.com/content/marketregulation/membership/phlx/feesched.pdf.
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    The Exchange also believes that its proposal to assess a take fee 
for preferenced orders in the Designated Symbols of $0.29 per contract 
is reasonable because it will allow the Exchange to remain competitive 
with other exchanges that employ a similar pricing scheme while 
maintaining the two cent differential that currently exists at options 
exchanges between fees charged for regular complex orders that take 
liquidity and complex orders that are preferenced to market makers. For 
example, PHLX currently charges $0.27 per contract to Directed 
Participants for removing liquidity in all their Select Symbols while 
charging $0.29 per contract to its market makers.\12\ Additionally, the 
Exchange believes the proposed fees are reasonable and equitable in 
that they will apply equally to all market participants that were 
previously subject to these fees.
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    \12\ Id.
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    The Exchange also believes that it is reasonable and equitable to 
provide a rebate for Priority Customer complex orders in the Designated 
Symbols because paying a rebate would continue to attract additional 
order flow to the Exchange and thereby create liquidity in the 
Designated Symbols that ultimately will benefit all market participants 
who trade on the Exchange. The Exchange further believes that paying a 
rebate is equitable and reasonable because it is similar to rebates 
paid by other Exchanges.\13\ The proposed increased rebate of $0.26 per 
contract for Priority Customer complex orders in the Designated Symbols 
is identical to a proposal recently submitted by PHLX.\14\
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    \13\ Id.
    \14\ As of the date of this filing, PHLX has not posted on its 
web site its proposed rule change to increase the rebate to $0.26 
per contract for Customer Complex Orders in the Designated Symbols. 
PHLX did, however, publish and distribute Options Trader Alert 
<greek-i>2011-36 announcing new complex order pricing, effective 
August 1, 2011, in options overlying the Designated Symbols. See 
http://www.nasdaqtrader.com/TraderNews.aspx?id=OTA2011-36.
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    Moreover, the Exchange believes that the proposed fees are fair, 
equitable and not unfairly discriminatory because the proposed fees are 
consistent with price differentiation that exists today at other option 
exchanges. Additionally, the Exchange believes it remains an attractive 
venue for market participants to trade complex orders despite its 
proposed fee change as its fees remain competitive with those charged 
by other exchanges for similar trading strategies. The Exchange 
operates in a highly competitive market in which market participants 
can readily direct order flow to another exchange if they deem fee 
levels at a particular exchange to be excessive. For the reasons noted 
above, the Exchange believes that the proposed fees are fair, equitable 
and not unfairly discriminatory.

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

    The proposed rule change does not impose any burden on competition 
that is 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

    The Exchange has not solicited, and does not intend to solicit, 
comments on this proposed rule change. The Exchange has not received 
any unsolicited written comments from members or other interested 
parties.

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.\15\ At any time within 60 days of the 
filing of such 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. If the Commission takes such action, the 
Commission shall institute proceedings to determine whether the 
proposed rule should be approved or disapproved.
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    \15\ 15 U.S.C. 78s(b)(3)(A)(ii).
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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#691b1c050c440a0604040c071d1a291a0c0a470e061f"><span class="__cf_email__" data-cfemail="453730292068262a2828202b3136053620266b222a33">[email protected]</span></a>. Please include 
File No. SR-ISE-2011-49 on the subject line.

Paper Comments

    <bullet> Send paper comments in triplicate to Elizabeth Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-ISE-2011-49. 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

[[Page 50807]]

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 ISE. 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-ISE-2011-49 and should be submitted on 
or before September 6, 2011.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\16\
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    \16\ 17 CFR 200.30-3(a)(12).
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Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-20705 Filed 8-15-11; 8:45 am]
BILLING CODE 8011-01-P


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