[Federal Register Volume 74, Number 249 (Wednesday, December 30, 2009)]
[Notices]
[Pages 69172-69173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30926]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61229; File No. SR-BX-2009-083]


Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change Relating to 
the Fee Schedule of the Boston Options Exchange Facility

December 22, 2009.
    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, 2009, NASDAQ OMX BX, Inc. (the ``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 self-regulatory organization. The Exchange 
filed the proposed rule change pursuant to Section 19(b)(3)(A)(ii) of 
the Act,\3\ and Rule 19b-4(f)(2) thereunder,\4\ which renders the 
proposal effective upon filing with the Commission. The Commission is 
publishing this notice to solicit comments on the proposed rule from 
interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \4\ 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 the Fee Schedule of the Boston 
Options Exchange Group, LLC (``BOX''). The text of the proposed rule 
change is available from the principal office of the Exchange, at the 
Commission's Public Reference Room, on the Exchange's Internet Web site 
at http://nasdaqomxbx.cchwallstreet.com/NASDAQOMXBX/Filings/, and on 
the Commission's Internet Web site at http://www.sec.gov/.

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
    On November 13, 2006 BOX entered into a licensing agreement 
(``Agreement'') with The NASDAQ OMX Group, Inc. (``NASDAQ OMX'') 
(formerly known as the Nasdaq Stock Market, Inc.) to use various 
indices and trademarks in connection with the listing and trading of 
index options on the full value Nasdaq-100[supreg] (``NDX'')\5\

[[Page 69173]]

and the reduced value Nasdaq-100[supreg] Index (Mini-NDX[supreg] Index 
(MNX)).\6\ The Agreement established a license fee, currently $0.16 per 
contract, payable by BOX to NASDAQ OMX, for NDX and MNX options 
contracts traded on BOX.\7\
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    \5\ Nasdaq[supreg], Nasdaq-100[supreg] and Nasdaq-100 
Index[supreg] are registered trademarks of The NASDAQ OMX Group, 
Inc. (which with its affiliates are the ``Corporations'') and are 
licensed for use by the Boston Options Exchange Group, LLC in 
connection with the trading of options products based on the Nasdaq-
100 Index[supreg]. The product(s) have not been passed on by the 
Corporations as to their legality or suitability. The product(s) are 
not issued, endorsed, sold, or promoted by the Corporations. The 
Corporations make no warranties and bear no liability with respect 
to the product(s). The Corporations do not guarantee the accuracy 
and/or uninterrupted calculation of the Nasdaq-100 Index[supreg] or 
any data included therein. The Corporations make no warranty, 
express or implied, as to results to be obtained by licensee, owners 
of the product(s), or any other person or entity from the use of the 
Nasdaq-100 Index[supreg] or any data included therein. The 
Corporations make no express or implied warranties, and expressly 
disclaim all warranties of merchantability or fitness for a 
particular purpose or use with respect to the Nasdaq-100 
Index[supreg] or any data included therein. Without limiting any of 
the foregoing, in no event shall the Corporations have any liability 
for any lost profits or special, incidental, punitive, indirect or 
consequential damages, even if notified of the possibility of such 
damages.
    \6\ Id.
    \7\ On November 14, 2006 the Exchange established a $0.15 
surcharge fee for transactions in options on NDX and MNX. See 
Securities Exchange Act Release No. 55000 (December 21, 2006), 71 FR 
78479 (December 29, 2006) (SR-BSE-2006-47). The Exchange 
subsequently increased the surcharge fee to $0.16 in response to a 
corresponding increase in the license fees charged by NASDAQ OMX to 
BOX. See Securities Exchange Act Release No. 57114 (January 8, 
2008), 73 FR 2961 (January 16, 2008) (SR-BSE-2008-01).
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    This Agreement between BOX and NASDAQ OMX was set to expire on 
December 31, 2009. BOX and NASDAQ OMX have entered into an extension of 
the Agreement whereby a six (6) cent increase in the per contract 
license fee charged to BOX by NASDAQ OMX has been agreed to.
    The Exchange is submitting this proposed rule change to increase 
the surcharge fee for transactions in NDX and MNX options by six (6) 
cents, to $0.22. This increase will correspondingly offset the 
increased costs incurred by BOX. As with certain other licensed 
options, the Exchange adopted and maintains a surcharge fee for trading 
in these options to defray the licensing costs. The Exchange believes 
that charging BOX Options Participants that trade these instruments is 
the most equitable means of recovering the costs of the license.
2. Statutory Basis
    The Exchange believes that the proposal is consistent with the 
requirements of Section 6(b) of the Act,\8\ in general, and Section 
6(b)(4) of the Act,\9\ in particular, in that it provides for the 
equitable allocation of reasonable dues, fees, and other charges among 
its members and issuers and other persons using its facilities.
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    \8\ 15 U.S.C. 78f(b).
    \9\ 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 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

    The Exchange has neither solicited nor received comments on the 
proposed rule change.

 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 Exchange Act\10\ and Rule 19b-4(f)(2) 
thereunder,\11\ because it establishes or changes a due, fee, or other 
charge applicable only to a member.
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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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    At any time within 60 days of the filing of the proposed rule 
change, the Commission may summarily abrogate the rule change if it 
appears to the Commission that the action is necessary or appropriate 
in the public interest, for the protection of investors, or would 
otherwise further 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 [email protected]. Please include 
File Number SR-BX-2009-083 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-2009-083. 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 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, 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-2009-083 and should be 
submitted on or before January 20, 2010.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\12\
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    \12\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-30926 Filed 12-29-09; 8:45 am]
BILLING CODE 8011-01-P