[Federal Register Volume 76, Number 135 (Thursday, July 14, 2011)]
[Notices]
[Pages 41534-41536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17679]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-64840; File No. SR-BX-2011-043]


Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change To Amend 
Rule 7034 To Extend the Waiver of Certain Co-Location Installation Fees 
for an Additional Month

July 8, 2011.
    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 July 1, 2011, NASDAQ OMX BX, Inc. (``BX'' 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. The Commission is publishing 
this notice to solicit comments on the proposed rule change from 
interested persons.
---------------------------------------------------------------------------

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

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Rule 7034 to extend the waiver of 
fees assessed for the installation of certain co-location services for 
an additional month. The text of the proposed rule change is available 
at http://nasdaqomxbx.cchwallstreet.com, at the Exchange's principal 
office, at the Commission's Public Reference Room, and at the 
Commission's 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 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 Exchange proposes to amend Rule 7034 to extend for a one-month 
period the initial waiver of fees assessed for the installation of 
certain co-location services, in order to provide its existing and 
potential new customers a full opportunity to avail themselves of the 
waiver. The initial waiver of fees for the installation of certain co-
location services commenced June 1, 2011 and ended June 30, 2011.\3\ 
Since the initial waiver, there has been significant demand for the 
select co-location services by existing customers, as well as new 
customers. However, the Exchange has become aware that a significant 
number of new and existing customers are unable to complete their 
requests by June 30, 2011 due to the need for additional time to order 
new equipment to be housed in the cabinets, or, to complete the 
internal approval

[[Page 41535]]

process for the ongoing monthly fees that will be incurred as part of 
the service. Therefore, the Exchange proposes to extend the waiver of 
fees until July 29, 2011 (the ``extended period''). Beginning August 1, 
2011, the above-referenced waived fees will revert to the amount in 
effect prior to June 1, 2011. The Exchange proposes to extend the 
waiver of the following installation fees during the extended period:
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release No. 64631 (June 8, 
2011), 76 FR 34785 (June 14, 2011) (SR-BX-2011-032).
---------------------------------------------------------------------------

    1. Rule 7034(a): Installation fees for new cabinets with power.
    2. Rule 7034(b): Installation fees for external telecommunication, 
inter-cabinet connectivity, connectivity to The Nasdaq Stock Market LLC 
and market data connectivity related to an order for a new cabinet. 
However, the one-time telecommunication connectivity expedite fee \4\ 
will not be waived during the extended period.
---------------------------------------------------------------------------

    \4\ The one-time telecommunication connectivity expedite fee is 
a fee for an optional request to complete the installation in a 
shorter time period than the install timeframes.
---------------------------------------------------------------------------

    3. Rule 7034(c): Installation fees for cabinet power related to an 
order for a new cabinet.
    4. Rule 7034(d): Installation fees for cooling fans, perforated 
floor tiles and fiber downspouts, which are necessary items to support 
a higher density cabinet and fiber cross connects, relating to an order 
for a new cabinet placed during the extended period. Installation fees 
for other items that are customized or options are not waived during 
the extended period.
    The following requirements must be met to receive the waiver of the 
installation fee:
    1. The new cabinet order must be placed in the CoLo Console \5\ 
during the extended period; and
---------------------------------------------------------------------------

    \5\ The ``CoLo Console'' is web-based ordering tool that is 
utilized by NASDAQ to place co-location orders.
---------------------------------------------------------------------------

    2. The new cabinet must be live within 90 days of the date of the 
order.\6\
---------------------------------------------------------------------------

    \6\ Exchange staff generally installs and makes operational a 
new cabinet within 90 days of the date of the order (the ``live 
date''). The estimated live date is communicated to the customer. 
However, there may be instances where the customer desires the live 
date to be later than the estimated live date provided by Exchange 
staff. In such instances, the live date cannot extend beyond 90 days 
of the date of the order.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the provisions of Section 6 of the Act,\7\ in general, and with 
Section 6(b)(4) of the Act,\8\ 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 the Exchange operates or controls. The proposed fee waiver 
is reasonable because it provides an opportunity for all new customers 
and all existing customer [sic] that desire additional cabinet space to 
obtain that space without incurring fees. This decrease in fees 
provided a savings of over $100,000 to customers that took advantage of 
the fee waiver during the month of June. In addition, the Exchange 
believes that the fee waiver results in an equitable allocation of fees 
among the members of the Exchange. Specifically, the Exchange believes 
that by encouraging new and existing co-location customers to increase 
their presence in the Exchange's data center, the Exchange will 
generate additional order execution and data consumption activity. If 
it materializes, such an increase in activity would assist the Exchange 
in controlling the charges it imposes on members generally for their 
use of a variety of Exchange services. The waiver of fees is also 
equitably allocated since all existing and potential co-location 
customers may avail themselves of the waiver during the period of 
availability. Notably, during June 2011, the preponderance of customers 
availing themselves of the waiver were existing, rather than new 
customers, demonstrating the benefit of the program to a variety of 
members. Finally, extending the program for a month will ensure that 
several customers that have expressed an interest in expanding their 
data center presence but that have not yet been able to do so will have 
the opportunity to benefit from the waiver.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78f.
    \8\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

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

    The Exchange does not believe that the proposed rule change will 
result in any burden on competition that is not necessary or 
appropriate in furtherance of the purposes of the Act, as amended. The 
Exchange believes that the extension of the waiver of fees for certain 
co-location services is equitable because all customers may avail 
themselves of the waiver.

C. Self-Regulatory Organization's Statement on Comments on 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.\9\ 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. If the Commission takes such action, the Commission shall 
institute proceedings to determine whether the proposed rule should be 
approved or disapproved.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78s(b)(3)(a)(ii).
---------------------------------------------------------------------------

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-2011-043 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-2011-043. 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 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

[[Page 41536]]

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-BX-2011-043 and 
should be submitted on or before August 4, 2011.
---------------------------------------------------------------------------

    \10\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\10\
Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-17679 Filed 7-13-11; 8:45 am]
BILLING CODE 8011-01-P