[Federal Register Volume 78, Number 173 (Friday, September 6, 2013)]
[Notices]
[Pages 54942-54943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-21659]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-70296; File No. SR-Topaz-2013-03]


Self-Regulatory Organizations; Topaz Exchange, LLC; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change To Amend the 
Schedule of Fees

August 30, 2013.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on August 26, 2013, the Topaz Exchange, LLC (the ``Exchange'' or 
``Topaz'') 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 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 the 
Substance of the Proposed Rule Change

    Topaz is proposing to amend its Schedule of Fees to establish a 
surcharge fee of $0.22 per contract for non-Priority Customer orders in 
options on the Nasdaq-100 Stock Index. The text of the proposed rule 
change is available on the Exchange's Internet Web site at http://www.ise.com, 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 the 
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 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange has entered into a license agreement with The NASDAQ 
OMX Group, Inc. in connection with the listing and trading of options 
on the Nasdaq-100 Stock Index (``NDX''), and is proposing to adopt a 
surcharge fee of $0.22 per contract applicable to non-Priority Customer 
orders in these options to defray the licensing costs. Absent the 
license agreement, market participants would be unable to trade NDX 
options on the Exchange.
    This fee reflects the pass-through charges associated with the 
licensing of this product, and the Exchange believes that charging the 
participants that trade these instruments is the most equitable means 
of recovering the costs of the license. The Exchange notes that the 
proposed surcharge fee does not apply to Priority Customer orders in 
this product.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the provisions of Section 6 of the Act,\3\ in general, and Section 
6(b)(4) of the Act,\4\ in particular, in that it is designed to provide 
for the equitable allocation of reasonable dues, fees, and other 
charges among its members and other persons using its facilities.
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    \3\ 15 U.S.C. 78f.
    \4\ 15 U.S.C. 78f(b)(4).
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    The proposed surcharge fee is reasonable because it is a direct 
result of the licensing fee charged to the Exchange by the index 
provider that owns the intellectual property associated with the index, 
and reflects the pass-through charges associated with obtaining the 
license to trade NDX options, which the Exchange believes is the most 
equitable means of recovering the costs of the license. The proposed 
fee is equitable and not unfairly discriminatory in that it applies 
uniformly to all similarly situated Exchange participants, and is 
assessed only on those non-Priority Customer participants who choose to 
transact in NDX options. The Exchange believes it is equitable and not 
unfairly discriminatory to assess this surcharge on all participants 
except Priority Customers because the Exchange seeks to encourage 
Priority Customer order flow and the liquidity such order flow brings 
to the marketplace, which in turn benefits all market participants.

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

    In accordance with Section 6(b)(8) of the Act,\5\ the Exchange does 
not believe that the proposed rule change will impose any burden on 
competition that is not necessary or appropriate in furtherance of the 
purposes of the Act. By providing all participants on the Exchange with 
the ability to hedge via NDX options, the Exchange is not placing any 
burden on competition among its various participants. The Exchange 
further notes that the licensing agreement it has secured is not an 
exclusive agreement as many other option exchanges currently trade NDX 
options and charge a fee related to such license.\6\ As such, there is 
no burden on competition among exchanges for the trading of NDX 
options.
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    \5\ 15 U.S.C. 78f(b)(8).
    \6\ For example, NYSE Amex Options (``Amex''), NYSE Arca Options 
(``Arca''), BOX Options Exchange LLC (``BOX''), and the 
International Securities Exchange, LLC (``ISE'') each also charge a 
surcharge fee of $0.22 for trades in NDX options. See Amex Fee 
Schedule, Royalty Fees; Arca Fees and Charges, Royalty Fees; BOX Fee 
Schedule, Section I, Exchange Fees, Options Surcharge; and ISE 
Schedule of Fees, Section VI, Other Options Fees and Rebates, Non-
Priority Customer License Surcharge for Index Options.
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    Finally, the Exchange notes that it operates in a highly 
competitive market in which market participants can readily favor 
competing venues if they deem fee levels at a particular venue to be 
excessive. In such an environment, the Exchange must continually 
review, and consider adjusting, its fees and credits to remain 
competitive with other exchanges. For the reasons described above, the 
Exchange believes that the proposed rule change reflects this 
competitive environment.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    The Exchange has not solicited, and does not intend to solicit, 
comments on

[[Page 54943]]

this proposed rule change. The Exchange has not received any 
unsolicited written comments from members or other interested parties.

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 \7\ and subparagraph (f)(2) of Rule 19b-4 
thereunder,\8\ because it establishes a due, fee, or other charge 
imposed by Topaz.
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    \7\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \8\ 17 CFR 240.19b-4(f)(2).
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    At any time within 60 days of the filing of such 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.

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-Topaz-2013-03 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-Topaz-2013-03. This file 
number should be included on the 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 10:00 a.m. and 3:00 p.m. Copies of such filing also will be 
available for inspection and copying at the principal offices 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-
Topaz-2013-03, and should be submitted on or before September 27, 2013.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\9\
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    \9\ 17 CFR 200.30-3(a)(12).
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Elizabeth M. Murphy,
Secretary.
[FR Doc. 2013-21659 Filed 9-5-13; 8:45 am]
BILLING CODE 8011-01-P