[Federal Register Volume 69, Number 42 (Wednesday, March 3, 2004)]
[Notices]
[Pages 10089-10091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4714]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-49324; File No. SR-Phlx-2004-08]


Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change and Amendment No. 1 Thereto by 
the Philadelphia Stock Exchange, Inc. To Amend Its Equity Option 
Specialist Deficit (Shortfall) Fee

February 26, 2004.
    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 January 30, 2004, the Philadelphia Stock Exchange, Inc. 
(``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 the 
Exchange. On February 25, 2004, the Exchange filed Amendment No. 1 to 
the proposed

[[Page 10090]]

rule change.\3\ The proposed rule change, as amended, has been filed by 
the Phlx as establishing or changing a due, fee, or other charge, 
pursuant to section 19 (b)(3)(A)(ii) \4\ of the Act and Rule 19b-
4(f)(2) \5\ thereunder, which renders the proposal effective upon 
filing with the Commission. The Commission is publishing this notice to 
solicit comments on the proposed rule change, as amended, from 
interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See letter from Cynthia Hoekstra, Counsel, Phlx, to Nancy J. 
Sanow, Assistant Director, Division of Market Regulation, 
Commission, dated February 25, 2004 (``Amendment No. 1''). In 
Amendment No. 1, Phlx clarified the definition of a new specialist 
unit for purposes of the fee and added the definition to the fee 
schedule.
    \4\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \5\ 17 CFR 240.19b-4(f)(2).
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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 Equity Option Specialist Deficit 
(Shortfall) fee (``shortfall fee'') to adopt a revised tiered threshold 
schedule for: (1) Any newly listed top 120 option;\6\ and (2) any top 
120 option acquired by a new specialist unit, not affiliated with an 
existing Phlx options specialist unit. The text of the proposed rule 
change, as amended, is available at the Phlx and at the Commission.
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    \6\ The Exchange defines a top 120 option as one of the 120 most 
actively traded equity options in terms of the total number of 
contracts in that option that were traded nationally for a specified 
month, based on volume reflected by the Options Clearing 
Corporation.
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Current Fee Structure

    Currently, the Exchange charges specialist units \7\ a monthly 
$0.35 per contract shortfall fee for trading in any top 120 option if 
at least 12 percent of the total national monthly contract volume 
(``volume threshold'') is not effected on the Exchange in that 
month.\8\ The fee is limited to $10,000 per month per option if the 
total monthly market share effected on the Phlx for a top 120 option is 
equal to or greater than 50 percent of the volume threshold in effect. 
The current volume threshold of 12 percent does not apply during the 
transition period when an option is first listed; a tiered threshold is 
implemented during this transition period such that the requisite 
volume threshold is three percent for the first full calendar month of 
trading and six percent for the second full calendar month of 
trading.\9\
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    \7\ The Exchange uses the terms ``specialist'' and ``specialist 
unit'' interchangeably herein.
    \8\ See Securities Exchange Act Release No. 48459 (September 8, 
2003), 68 FR 54034 (September 15, 2003) (SR-Phlx-2003-61). 
Specialist units may elect to pay a fixed monthly fee in lieu of 
Phlx specialist equity and index option transaction charges and 
shortfall fees.
    \9\ In connection with the requisite volume threshold of three 
percent and six percent, the $10,000 limit applies if at least 1.5 
percent of the total national monthly contract volume was reached in 
the first full calendar month of trading and at least three percent 
of the total national monthly contract volume was reached in the 
second full calendar month of trading. See Securities Exchange Act 
Release Nos. 43201 (August 23, 2000), 65 FR 52465 (August 29, 2000) 
(SR-Phlx-00-71); and 48207 (July 22, 2003), 68 FR 44558 (July 29, 
2003) (SR-Phlx-2003-47).
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Proposed Fee Structure

    The Exchange now proposes to amend its tiered shortfall fee 
thresholds that are implemented during transition periods for any newly 
listed top 120 options \10\ or for any top 120 option (including those 
equity options listed on the Exchange before February 1, 2004) acquired 
by a new specialist unit.\11\ The thresholds will be implemented in 
monthly stages, similar to current threshold requirements, beginning 
with the first business day of the first full month following the 
commencement of trading a top 120 option. Listed below are the amended 
shortfall fee thresholds:
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    \10\ Any top 120 option listed after February 1, 2004, will be 
considered newly listed for purposes of this proposal.
    \11\ A new specialist unit is one that is approved to operate as 
a specialist unit by the Options Allocation, Evaluation and 
Securities Committee on or after February 1, 2004, and is a 
specialist unit that is not currently affiliated with an existing 
options specialist unit as reported on the member organization's 
Form BD, which refers to direct and indirect owners, or as reported 
in connection with any another financial arrangement, such as is 
required by Exchange Rule 783. See Amendment No. 1.

First full month of trading: 0% national market share
Second full month of trading: 3% national market share
Third full month of trading: 6% national market share
Fourth full month of trading: 9% national market share
Fifth full month of trading (and thereafter): 12% national market share 
\12\
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    \12\ Therefore, if a new specialist unit acquires a top 120 
option in mid-February, then, in March, the specialist unit will not 
be assessed a shortfall fee, but will be assessed a 3 percent 
shortfall fee in April, its second full month of trading, 6 percent 
in May, 9 percent in June and then 12 percent for July and future 
months.
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    The $10,000 limit would apply to each threshold provided that the 
market share effected on the Phlx for a top 120 option is equal to or 
greater than 50 percent of the applicable month's volume threshold.\13\
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    \13\ For example, the $10,000 limit would apply in the second 
calendar month of trading if at least 1.5 percent of the total 
national monthly contract volume is reached.
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    Any new specialist unit that is allocated a top 120 option may 
implement the tiered shortfall fee thresholds only in the first 60 
calendar days of operating.\14\
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    \14\ Therefore, if a new specialist unit begins trading any 
equity option on the Phlx, it may only utilize the tiered shortfall 
fee thresholds if it begins trading a top 120 option during its 
initial 60 days of operation. For example, if a specialist unit 
begins trading an equity option on February 2, and begins trading a 
top 120 option 60 days from that date, it may utilize the tiered 
thresholds.
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    The current rate of $0.35 per contract and other procedures 
relating to the shortfall fee remain unchanged at this time.\15\ The 
Exchange intends to implement this shortfall fee proposal to be 
effective February 1, 2004.\16\
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    \15\ For example, the total volume calculation for purposes of 
determining the requisite thresholds will continue to be based on 
the current month's volume and the three-month differentiation to 
determine whether an equity option is considered a top 120 option 
will also remain in effect, i.e., December's top 120 options are 
based on September's volume. Any excess volume (over the total 
volume target) may not be carried over to a future month. See 
Securities Exchange Act Release No. 43201 (August 23, 2000), 65 FR 
52465 (August 29, 2000) (SR-Phlx-00-71).
    \16\ A top 120 option that is not subject to this proposal 
(i.e., listed before February 1, 2004) will continue to be subject 
to the threshold requirements currently in effect.
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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 Phlx included statements 
concerning the purpose of and basis for the proposed rule change, as 
amended, and discussed any comments it received on the proposed rule 
change, as amended. The text of these statements may be examined at the 
places specified in item IV below. The 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
    The purpose of the proposed rule change is to create an incentive 
for new specialist units to enter the Phlx market place and to give 
existing specialist units who trade in a newly listed top 120 option a 
reasonable period to attract order flow to the Exchange, without 
imposing a potentially onerous financial burden. A revised tiered 
threshold should encourage specialists to continue to compete for 
market share in the top 120 options, while reducing the economic burden 
on new specialists who trade in the top 120 options and

[[Page 10091]]

existing specialists who trade in a newly listed top 120 option.
2. Statutory Basis
    The Exchange believes the proposed rule change, as amended, is 
consistent with the provisions of section 6(b) of the Act,\17\ in 
general, and section 6(b)(4) of the Act,\18\ in particular, in that it 
provides for the equitable allocation of reasonable dues, fees, and 
other charges among Exchange members.
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    \17\ 15 U.S.C. 78f(b).
    \18\ 15 U.S.C. 78f(b)(4).
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B. Self-Regulatory Organization's Statement on Burden on Competition

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

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 proposed rule change, as amended, has become 
effective pursuant to section 19(b)(3)(A)(ii) of the Act \19\ and Rule 
19b-4(f)(2) \20\ thereunder, because it changes a fee imposed by the 
Exchange. At any time within 60 days of the filing of the proposed rule 
change, the Commission may summarily abrogate 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.\21\
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    \19\ 15 U.S.C. 78(s)(b)(3)(A)(ii).
    \20\ 17 CFR 240.19b-4(f)(2).
    \21\ See 15 U.S.C. 78s(b)(3)(C). For purposes of calculating the 
60-day abrogation period, the Commission considers the period to 
commence on February 25, 2004, the date the Phlx filed Amendment No. 
1.
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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, as amended, is consistent with the Act. Persons making written 
submissions should file six copies thereof with the Secretary, 
Securities and Exchange Commission, 450 Fifth Street, NW., Washington, 
DC 20549-0609. Comments may also be submitted electronically at the 
following e-mail address: [email protected]. All comment letters 
should refer to File No. SR-Phlx-2004-08. This file number should be 
included on the subject line if e-mail is used. To help the Commission 
process and review comments more efficiently, comments should be sent 
in hardcopy or by e-mail but not by both methods. 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 inspection and copying in the Commission's 
Public Reference Room. Copies of such filing will also be available for 
inspection and copying at the principal office of the Phlx. All 
submissions should refer to File No. SR-Phlx-2004-08 and should be 
submitted by March 24, 2004.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\22\
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    \22\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 04-4714 Filed 3-2-04; 8:45 am]
BILLING CODE 8010-01-P