[Federal Register Volume 77, Number 76 (Thursday, April 19, 2012)]
[Notices]
[Pages 23528-23531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9406]



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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-66805; File No. SR-Phlx-2012-46]


Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change Relating to 
Equity Option Fees

April 13, 2012.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\, and Rule 19b-4 \2\ thereunder, notice is hereby given 
that, on April 2, 2012, NASDAQ OMX PHLX LLC (``Phlx'' or ``Exchange'') 
filed with the Securities and Exchange Commission (``SEC'' or 
``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.
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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 Exchange proposes to amend certain Options Transaction Charges 
in Section II \3\ of the Exchange's Pricing Schedule entitled ``Equity 
Options Fees'' and also offer a rebate on certain Customer orders.
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    \3\ Section II of the Pricing Schedule includes options 
overlying equities, ETFs, ETNs, indexes and HOLDRs which are 
Multiply Listed.
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    The text of the proposed rule change is available on the Exchange's 
Web site at http://nasdaqtrader.com/micro.aspx?id=PHLXfilings, 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 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 Section II of the Exchange's Pricing 
Schedule to: (1) Increase the Professional \4\ Options Transaction 
Charges for both Penny Pilot options \5\ and non-Penny Pilot options 
\6\; and (ii) amend the non-Penny Pilot Broker-Dealer electronic 
Options Transaction Charge in order to recoup costs associated with 
supporting a larger number of options classes, option series and 
overall transaction volume each of which has become larger in the past 
few years.\7\ The Exchange also believes that increasing the Broker-
Dealer electronic Options Transaction Charge in non-Penny Pilot options 
will allow the Exchange to compete more effectively by subsidizing 
Customer rebates. In addition, the Exchange proposes to offer an 
additional rebate on certain Customer orders to attract additional 
Customer order flow.
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    \4\ The term ``Professional'' means any person or entity that 
(i) is not a broker or dealer in securities, and (ii) places more 
than 390 orders in listed options per day on average during a 
calendar month for its own beneficial account(s). See Rule 
1000(b)(14).
    \5\ The Penny Pilot was established in January 2007; and in 
October 2009, it was expanded and extended through June 30, 2012. 
See Securities Exchange Act Release Nos. 55153 (January 23, 2007), 
72 FR 4553 (January 31, 2007) (SR-Phlx-2006-74) (notice of filing 
and approval order establishing Penny Pilot); 60873 (October 23, 
2009), 74 FR 56675 (November 2, 2009) (SR-Phlx-2009-91) (notice of 
filing and immediate effectiveness expanding and extending Penny 
Pilot); 60966 (November 9, 2009), 74 FR 59331 (November 17, 2009) 
(SR-Phlx-2009-94) (notice of filing and immediate effectiveness 
adding seventy-five classes to Penny Pilot); 61454 (February 1, 
2010), 75 FR 6233 (February 8, 2010) (SR-Phlx-2010-12) (notice of 
filing and immediate effectiveness adding seventy-five classes to 
Penny Pilot); 62028 (May 4, 2010), 75 FR 25890 (May 10, 2010) (SR-
Phlx-2010-65) (notice of filing and immediate effectiveness adding 
seventy-five classes to Penny Pilot); 62616 (July 30, 2010), 75 FR 
47664 (August 6, 2010) (SR-Phlx-2010-103) (notice of filing and 
immediate effectiveness adding seventy-five classes to Penny Pilot); 
63395 (November 30, 2010), 75 FR 76062 (December 7, 2010) (SR-Phlx-
2010-167) (notice of filing and immediate effectiveness extending 
the Penny Pilot); and 65976 (December 15, 2011), 76 FR 79247 
(December 21, 2011) (SR-Phlx-2011-172) (notice of filing and 
immediate effectiveness extending the Penny Pilot). See also 
Exchange Rule 1034.
    \6\ Non-Penny Pilot refers to options classes not in the Penny 
Pilot.
    \7\ The costs are associated with network infrastructure, 
database and latency enhancements and regulatory systems.
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    Specifically, the Exchange proposes to increase the Professional 
Options Transaction Charges for both Penny Pilot options and non-Penny 
Pilot options from $.20 per contract to $.25 per contract. The Exchange 
also proposes increasing the Broker-Dealer Options Transaction Charge 
in non-Penny Pilot options from $.50 per contract to $.60 per contract.
    The Exchange also proposes to amend Section II of the Pricing 
Schedule to further incentivize members to transact Customer orders by 
offering an increased rebate of $0.03 per contract on all 
electronically-delivered Customer orders that: (i) Qualified for the 
current $0.07 Customer rebate; \8\ and (ii) added liquidity in a non-
Penny Pilot option. The Exchange also proposes to modify the current 
language in the Pricing Schedule pertaining to the $0.07 Customer order 
rebate to make clear that the additional $0.03 Customer rebate must 
first qualify for the $0.07 rebate to be eligible for the additional 
rebate. The Exchange also proposes to amend certain existing text 
related to the current $0.07 per contract rebate to further clarify the 
text.
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    \8\ Currently, the Exchange pays a rebate of $0.07 per contract 
to members that execute an electronically-delivered Customer order 
and transact an average daily volume of 50,000 Customer contracts or 
greater in a given month.
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2. Statutory Basis
    The Exchange believes that its proposal to amend its Pricing 
Schedule 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 fees 
and other charges among Exchange members and other persons using its 
facilities.
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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's proposal to increase the Professional Options 
Transaction Charges in both Penny Pilot and non-Penny Pilot options as 
well as increase the non-Penny Pilot Broker-Dealer electronic Options 
Transaction Charge is reasonable because of the greater costs incurred 
by the Exchange associated with supporting a larger number of options 
classes, option series and overall transaction volume. The Exchange 
believes increasing the Professional Options Transaction Charges in 
both Penny Pilot and non-Penny Pilot options from $.20 per contract to 
$.25 per contract is reasonable because the $.05 per contract increase 
would allow the Exchange to recoup the aforementioned costs while also 
continuing to assess a Professional a rate that is equal to or lower 
than a Broker-Dealer and Firm. Also, the increased Professional fees 
are comparable with fees at other options

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exchanges.\11\ The Exchange believes increasing the Broker-Dealer 
electronic non-Penny Options Transactions Charge from $.50 per contract 
to $.60 per contract is reasonable because the $.10 per contract 
increase would allow the Exchange to recoup the aforementioned costs 
while also subsidizing increased rebates for certain electronically-
delivered Customer orders. An increased Broker-Dealer electronic non-
Penny Pilot Options Transaction Charge allows the Exchange to compete 
more effectively by subsidizing rebates offered on electronically-
delivered Customer orders, such as the rebate proposed herein.
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    \11\ See SR-CBOE-2012-032, a rule change recently filed by The 
Chicago Board Options Exchange, Incorporated (``CBOE'') to increase 
both the voluntary professional and professional transaction fees 
for equity options and index, ETF, ETN and HOLDRs options, excluding 
OEX, XEO, SPXW and Volatility Indexes, from $0.20 to $0.25 per 
contract. See also NYSE AMEX LLC's Fee Schedule, which assesses 
professional customers a $0.25 per contract fee for manual 
executions and a $0.23 per contract fee for electronic executions.
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    The Exchange's proposal to increase the Professional Options 
Transaction Charges in both Penny Pilot and non-Penny Pilot options is 
equitable and not unfairly discriminatory because Professionals would 
continue to be assessed the same or lower fees as compared to Broker-
Dealers \12\ and Firms.\13\ Market Makers \14\ would be assessed the 
same or lower fees as compared to Professionals,\15\ because Market 
Makers have burdensome quoting obligations \16\ to the market which do 
not apply to Professionals, Customers, Firms and Broker-Dealers. 
Customers are not assessed Options Transactions Charges in either Penny 
Pilot or non-Penny Pilot options because Customer order flow brings 
liquidity to the market, which in turn benefits all market 
participants. Broker-Dealers and Firms today pay higher fees as 
compared to a Professional. The increased Professional Options 
Transaction Charges in both Penny Pilot and non-Penny Pilot options 
would in some cases equalize the fees paid by Professionals, Broker-
Dealer and Firms \17\ and make them uniform and in other cases the 
Broker-Dealer and Firms would continue to pay higher fees as is the 
case today.\18\
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    \12\ Broker-Dealers are assessed a Penny Pilot Options 
Transaction Charge of $.45 per contract for electronic orders and a 
Penny Pilot Options Transaction Charge of $.25 for non-electronic 
orders. Broker-Dealers would be assessed a proposed non-Penny Pilot 
Options Transaction Charge of $.60 for electronic orders and are 
currently assessed a non-Penny Pilot Options Transaction Charge of 
$.25 for non-electronic orders.
    \13\ Firms are assessed a Penny Pilot Options Transaction Charge 
of $.25 per contract for electronic orders and a Penny Pilot Options 
Transaction Charge of $.25 for non-electronic orders. Firms are 
assessed a non-Penny Pilot Options Transaction Charge of $.40 for 
electronic orders and a non-Penny Pilot Options Transaction Charge 
of $.25 for non-electronic orders.
    \14\ A ``Market Maker'' includes Specialists (see Rule 1020) and 
Registered Options Traders (``ROTs'') (Rule 1014(b)(i) and (ii), 
which includes Streaming Quote Traders (``SQTs'') (see Rule 
1014(b)(ii)(A)) and Remote Streaming Quote Traders (``RSQTs'') (see 
Rule 1014(b)(ii)(B)). Directed Participants are also Market Makers.
    \15\ Market Makers are assessed a Penny Pilot Options 
Transaction Charge of $.22 per contract for electronic orders and a 
Penny Pilot Options Transaction Charge of $.25 for non-electronic 
orders. Market Makers are assessed a non-Penny Pilot Options 
Transaction Charge of $.23 for electronic orders and a non-Penny 
Pilot Options Transaction Charge of $.25 for non-electronic orders.
    \16\ See Exchange Rule 1014 entitled ``Obligations and 
Restrictions Applicable to Specialists and Registered Options 
Traders.''
    \17\ By increasing the Professional Options Transaction Charges 
in both Penny Pilot and non-Penny Pilot options to $.25 per contract 
would cause the rates assessed Professionals to be uniform to the 
rates assessed Broker-Dealers for non-electronic transactions in 
Penny Pilot options and non-electronic transactions in non-Penny 
Pilot options as well as rates assessed Firms for electronic and 
non-electronic transactions in Penny Pilot options and non-
electronic transactions in non-Penny Pilot options.
    \18\ By increasing the Professional Options Transaction Charges 
in both Penny Pilot and non-Penny Pilot options to $.25 per contract 
would cause the rates assessed Professionals to be lower than the 
rates assessed Broker-Dealers for electronic transactions in Penny 
Pilot options and electronic transactions in non-Penny Pilot options 
(assuming the proposed new rate of $.60 per contract) and the rate 
assessed Firms for electronic transactions in non-Penny Pilot 
options.
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    The Exchange's proposal to increase the non-Penny Pilot Broker 
Dealer electronic Options Transaction Charge is equitable and not 
unfairly discriminatory because, currently, Broker-Dealers are assessed 
higher fees as compared to Customers, Professionals, Market Makers and 
Firms. Customers are not assessed Options Transaction Charges because 
Customer order flow brings liquidity to the market, which, in turn, 
benefits all market participants. Market Makers are assessed lower 
Options Transaction Charges as compared to other market participants, 
except Customers, because they have burdensome quoting obligations \19\ 
to the market which do not apply to Customers, Professionals, Firms and 
Broker-Dealers. In addition, Market Makers are subject to Payment for 
Order Flow Fees \20\ whereas Professionals, Firms and Broker-Dealers 
are not subject to such fees.\21\ For example, a Market Maker 
electronically transacting a Penny Pilot option contra a Customer order 
would pay $.47 per contract and a Market Maker electronically 
transacting a non-Penny Pilot option contra a Customer order would pay 
$.92 [sic] per contract.\22\ With respect to Professionals, they have 
access to more information and technological advantages as compared to 
Customers and Professionals do not bear the obligations of Market 
Makers. Also, Professionals engage in trading activity similar to that 
conducted by Market Makers. For example, Professionals continue to join 
bids and offers on the Exchange and thus compete for incoming order 
flow. For these reasons, the Exchange believes that Professionals may 
be priced higher than a Customer and may be priced equal to or higher 
than a Market Maker. Professionals are currently assessed a $.20 per 
contract Options Transaction Charge in non-Penny Pilot options, which 
the Exchange is proposing to increase to $.25 per contract, as compared 
to a Broker-Dealer that is currently assessed an electronic Options 
Transaction Charge of $.50 per contract for non-Penny Pilot 
options.\23\ The Exchange believes that increasing the Broker-Dealer 
electronic non-Penny Pilot Options Transaction Charge to $.60

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per contract for options does not misalign the current rate 
differentials between a Broker-Dealer and a Professional because the 
differential is only increasing by $.05 per contract and is comparable 
to differentials at other options exchanges.\24\ Firms are currently 
assessed different Options Transaction Charges as compared to Broker-
Dealers. Firms are assessed an electronic Options Transaction Charge of 
$.40 per contract in non-Penny Pilot options as compared to the current 
Broker-Dealer electronic Options Transaction Charge of $.50 per 
contract in non-Penny Pilot options. The proposed rate differential as 
between a Firm and Broker-Dealer of $.20 per contract, as proposed 
herein, is lower than differentials at other options exchanges for such 
market participants.\25\ The proposed rate differential as between a 
Firm and Broker-Dealer of $.20 per contract in electronic non-Penny 
Pilot options would be equivalent to the current rate differential 
between a Firm and Broker-Dealer of $.20 per contract in electronic 
Penny Pilot options.\26\ In addition, the Exchange believes that it is 
equitable and not unfairly discriminatory to increase the Broker-Dealer 
electronic non-Penny Pilot Options Transaction Charge to $.60 per 
contract to subsidize Customer rebates because attracting Customer 
order flow to the Exchange will benefit all market participants.
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    \19\ See note 16.
    \20\ Payment for Order Flow Fees are $.25 per contract for 
options that are trading in the Penny Pilot Program and $.70 per 
contract for other equity options. See Section II of the Pricing 
Schedule.
    \21\ Payment for Order Flow Fees are assessed on transactions 
resulting from Customer orders and are available to be disbursed by 
the Exchange according to the instructions of the Specialist units/
Specialists or Directed ROTs to order flow providers who are members 
or member organizations, who submit, as agent, customer orders to 
the Exchange or non-members or non-member organizations who submit, 
as agent, Customer orders to the Exchange through a member or member 
organization who is acting as agent for those Customer orders. 
Specialists and Directed ROTs who participate in the Exchange's 
payment for order flow program are assessed a Payment for Order Flow 
Fee, in addition to ROTs. Therefore, the Payment for Order Flow Fee 
is assessed, in effect, on equity option transactions between a 
Customer and an ROT, a Customer and a Directed ROT, or a Customer 
and a Specialist. A ROT is defined in Exchange Rule 1014(b) as a 
regular member of the Exchange located on the trading floor who has 
received permission from the Exchange to trade in options for his 
own account. A ROT includes a SQT, a RSQT and a Non-SQT, which by 
definition is neither a SQT or a RSQT. See Exchange Rule 1014(b)(i) 
and (ii).
    \22\ In terms of effective rates, a Market Maker transacting a 
Penny Pilot option contra a Customer would effectively pay on 
average $.0586 per contract and a Market Maker transacting a non-
Penny Pilot option contra a Customer would effectively pay on 
average $0.684 per contract. These effective rates apply to the fees 
contained in Section II of the Pricing Schedule. Section I of the 
Pricing Schedule entitled ``Rebates and Fees for Adding and Removing 
Liquidity in Select Symbols'' only applies to the Select Symbols 
listed in Section I.
    \23\ Section II of the Pricing Schedule contains electronic vs. 
non-electronic Options Transaction Charges only for Market Makers, 
Broker-Dealers and Firms.
    \24\ CBOE currently assesses a professional an equity options 
fee of $.20 [sic] per contract and a Broker-Dealer electronic order 
an equity options fee of $.45 per contract. See CBOE's Fees 
Schedule.
    \25\ CBOE currently assesses a Clearing Trading Permit Holder 
Proprietary an equity options fee of $.20 per contract and a Broker-
Dealer electronic order an equity options fee of $.45 per contract. 
See CBOE's Fees Schedule. Similarly, the International Securities 
Exchange, LLC (``ISE'') assesses a Firm Proprietary execution fee of 
$.20 per contract/side and a Non-ISE Market Maker a fee of $.45 per 
contract side.
    \26\ Currently, a Firm transacting an electronic Penny Pilot 
options order pays $.25 per contract while a Broker-Dealer 
transacting an electronic Penny Pilot options order pays $.45 per 
contract.
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    The Exchange believes that offering an increased rebate of $0.03 
per contract on all Customer orders that qualified for the current 
$0.07 Customer order rebate and also add liquidity in a non-Penny Pilot 
option is reasonable because the Exchange is seeking to further 
incentivize market participants to transact a greater number of 
Customer orders in non-Penny Pilot options, which order flow should 
benefit all market participants because of the increased liquidity such 
orders bring to the market.
    The Exchange believes that offering an increased rebate of $0.03 
per contract on all Customer orders that qualified for the current 
$0.07 Customer order rebate and also add liquidity in a non-Penny Pilot 
option is equitable and not unfairly discriminatory because all market 
participants are eligible to receive the additional rebate once they 
meet the volume threshold for Customer Orders. All market participants 
would be uniformly paid the additional $0.03 per contract rebate on 
qualifying Customer orders as long as those orders add liquidity in a 
non-Penny Pilot option. The Exchange believes that requiring members to 
transact an average daily volume of 50,000 Customer contracts or 
greater in a given month to obtain the rebate is reasonable, equitable 
and not unfairly discriminatory because the volume threshold should 
incentivize members to bring greater liquidity to the Exchange, thereby 
benefitting all market participants. Similar to current fees on the 
NASDAQ Options Market LLC (``NOM''), the Exchange is proposing to offer 
a rebate based on a certain volume criteria.\27\ Similar to this 
proposal, the CBOE offers a volume incentive program. CBOE credits each 
Trading Permit Holder (``TPH'') a certain per contract amount based on 
the volume of customer contracts the TPH executes electronically at 
CBOE in multiply-listed option classes (excluding qualified contingent 
cross trades).\28\ The Exchange's proposal to exclude PIXL and QCC 
Orders from the rebate and volume threshold calculation is reasonable, 
equitable and not unfairly discriminatory because PIXL and QCC Orders 
have the opportunity to receive rebates today,\29\ and the Exchange 
pays the rebate uniformly to its members.
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    \27\ NOM currently has a tiered rebate with certain volume 
criteria for Customer orders in Penny Pilot Options. See Chapter XV, 
Section 2 entitled ``NASDAQ Options Market--Fees.''
    \28\ See CBOE's Fees Schedule. CBOE offers a per contract credit 
ranging from $.00 to $.20 per contract based on a certain volume 
threshold which ranges from 0 to 375,001 plus customer contracts per 
day.
    \29\ See Sections II and IV(A) of the Exchange's Pricing 
Schedule. A PIXL Order will receive the rebate for adding liquidity 
when executed against contra-side order(s) that respond to the PIXL 
auction broadcast message as well as when executed against contra-
side quotes and unrelated orders on the PHLX book that arrived after 
the PIXL auction was initiated.
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    The Exchange operates in a highly competitive market, comprised of 
nine exchanges, in which market participants can easily and readily 
direct order flow to competing venues if they deem fee and rebate 
levels at a particular venue to be excessive. Accordingly, the fees 
that are assessed and the rebates paid by the Exchange must remain 
competitive with fees charged and rebates paid by other venues and 
therefore must continue to be reasonable and equitably allocated to 
those members that opt to direct orders to the Exchange rather than 
competing venues.

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

    No written comments were either solicited or 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.\30\ 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.
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    \30\ 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

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-Phlx-2012-46 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-Phlx-2012-46. This file 
number should be included on the

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subject line if email 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 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-Phlx-2012-46 and should be submitted on or before May 
10, 2012.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\31\
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    \31\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-9406 Filed 4-18-12; 8:45 am]
BILLING CODE 8011-01-P