[Federal Register Volume 75, Number 218 (Friday, November 12, 2010)]
[Notices]
[Pages 69492-69493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28541]



[[Page 69492]]

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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
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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    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 off-
setting 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.
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    \3\ 15 U.S.C. 78f.
    \4\ 15 U.S.C. 78f(b)(4).
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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

[[Page 69493]]

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.
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    \5\ 15 U.S.C. 78s(b)(3)(a)(ii).
    \6\ 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

     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-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\
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    \7\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-28541 Filed 11-10-10; 8:45 am]
BILLING CODE 8011-01-P