[Federal Register Volume 81, Number 25 (Monday, February 8, 2016)]
[Notices]
[Pages 6560-6562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02332]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-77032; File No. SR-Phlx-2016-04]


Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change To Amend the 
Options Regulatory Fee

February 2, 2016.
    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 January 20, 2016, 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 make adjustments to its Options Regulatory 
Fee (``ORF'') by amending Section IV, Part D of the Pricing Schedule.
    While changes to the Pricing Schedule pursuant to this proposal are 
effective upon filing, the Exchange has designated these changes to be 
operative on February 1, 2016.
    The text of the proposed rule change is available on the Exchange's 
Web site at http://nasdaqomxphlx.cchwallstreet.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 
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 decrease the ORF from $0.0035 to $0.0034 
as of February 1, 2016 to account for additional fine revenue, cost 
reductions and to balance the Exchange's regulatory revenue against the 
anticipated costs and potential fines.\3\
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    \3\ The Exchange notes that it previously filed a rule change to 
amend the ORF as of February 1, 2016 to $0.0040. This rule change 
supersedes that filing. See Securities Exchange Act Release No. 
75749 (August 21, 2015), 80 FR 52073 (August 27, 2015) (SR-Phlx-
2015-71).
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Background
    The ORF is assessed to each member for all options transactions 
executed or cleared by the member that are cleared at The Options 
Clearing Corporation (``OCC'') in the Customer range (i.e., that clear 
in the Customer account of the member's clearing firm at OCC). The 
Exchange monitors the amount of revenue collected from the ORF to 
ensure that it, in combination with other regulatory fees and fines, 
does not exceed regulatory costs. The ORF is imposed upon all 
transactions executed by a member, even if such transactions do not 
take place on the Exchange.\4\ The ORF also includes options 
transactions that are not executed by an Exchange member but are 
ultimately cleared by an Exchange member.\5\ The ORF is not

[[Page 6561]]

charged for member proprietary options transactions because members 
incur the costs of owning memberships and through their memberships are 
charged transaction fees, dues and other fees that are not applicable 
to non-members. The dues and fees paid by members go into the general 
funds of the Exchange, a portion of which is used to help pay the costs 
of regulation. The ORF is collected indirectly from members through 
their clearing firms by OCC on behalf of the Exchange.
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    \4\ The ORF applies to all ``C'' account origin code orders 
executed by a member on the Exchange. Exchange Rules require each 
member to record the appropriate account origin code on all orders 
at the time of entry in order to allow the Exchange to properly 
prioritize and route orders and assess transaction fees pursuant to 
the Rules of the Exchange and report resulting transactions to OCC. 
See Exchange Rule 1063, Responsibilities of Floor Brokers, and 
Options Floor Procedure Advice F-4, Orders Executed as Spreads, 
Straddles, Combinations or Synthetics and Other Order Ticket Marking 
Requirements. The Exchange represents that it has surveillances in 
place to verify that members mark orders with the correct account 
origin code.
    \5\ In the case where one member both executes a transaction and 
clears the transaction, the ORF is assessed to the member only once 
on the execution. In the case where one member executes a 
transaction and a different member clears the transaction, the ORF 
is assessed only to the member who executes the transaction and is 
not assessed to the member who clears the transaction. In the case 
where a non-member executes a transaction and a member clears the 
transaction, the ORF is assessed to the member who clears the 
transaction.
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    The ORF is designed to recover a portion of the costs to the 
Exchange of the supervision and regulation of its members, including 
performing routine surveillances, investigations, examinations, 
financial monitoring, and policy, rulemaking, interpretive, and 
enforcement activities. The Exchange believes that revenue generated 
from the ORF, when combined with all of the Exchange's other regulatory 
fees, will cover a material portion, but not all, of the Exchange's 
regulatory costs. The Exchange will continue to monitor the amount of 
revenue collected from the ORF to ensure that it, in combination with 
its other regulatory fees and fines, does not exceed regulatory costs. 
If the Exchange determines regulatory revenues exceed regulatory costs, 
the Exchange will adjust the ORF by submitting a fee change filing to 
the Commission.
ORF Adjustments
    The Exchange is proposing to decrease the ORF from $0.0035 to 
$0.0034 as of February 1, 2016 in order to account for regulatory 
revenue from disciplinary actions taken by the Exchange. The Exchange 
regularly reviews its ORF to ensure that the ORF, in combination with 
its other regulatory fees and fines, does not exceed regulatory costs. 
The Exchange believes this adjustment will permit the Exchange to cover 
a material portion of its regulatory costs, while not exceeding 
regulatory costs.
    The Exchange notified members of this ORF adjustment thirty (30) 
calendar days prior to the proposed operative date.\6\
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    \6\ See Options Trader Alert #2015-37.
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act \7\ in general, and furthers the objectives of Sections 
6(b)(4) and 6(b)(5) 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, and is not designed to 
permit unfair discrimination between customers, issuers, brokers, or 
dealers.
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    \7\ 15 U.S.C. 78f(b).
    \8\ 15 U.S.C. 78f(b)(4) and (5).
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    The Exchange believes that lowering the ORF from $0.0035 to $0.0034 
as of February 1, 2016 is reasonable because the Exchange's collection 
of ORF needs to be balanced against the amount of regulatory revenue 
collected by the Exchange. The Exchange believes that the proposed 
adjustments noted herein will serve to balance the Exchange's 
regulatory revenue against the anticipated regulatory costs. It is 
further reasonable because this adjustment results in a price 
reduction.
    The Exchange believes that lowering the ORF from $0.0035 to $0.0034 
as of February 1, 2016 is equitable and not unfairly discriminatory 
because this adjustment would be applicable to all members on all of 
their transactions that clear as Customer at OCC. In addition, the ORF 
seeks to recover the costs of supervising and regulating members, 
including performing routine surveillances, investigations, 
examinations, financial monitoring, and policy, rulemaking, 
interpretive, and enforcement activities.
    The ORF is not charged for member proprietary options transactions 
because members incur the costs of owning memberships and through their 
memberships are charged transaction fees, dues and other fees that are 
not applicable to non-members. Moreover, the Exchange believes the ORF 
ensures fairness by assessing higher fees to those members that require 
more Exchange regulatory services based on the amount of Customer 
options business they conduct.
    Regulating Customer trading activity is more labor intensive and 
requires greater expenditure of human and technical resources than 
regulating non-Customer trading activity. Surveillance, regulation and 
examination of non-Customer trading activity generally tends to be more 
automated and less labor intensive. As a result, the costs associated 
with administering the Customer component of the Exchange's overall 
regulatory program are anticipated to be higher than the costs 
associated with administering the non-Customer component of its 
regulatory program. The Exchange proposes assessing higher fees to 
those members that will require more Exchange regulatory services based 
on the amount of Customer options business they conduct.\9\ 
Additionally, the dues and fees paid by members go into the general 
funds of the Exchange, a portion of which is used to help pay the costs 
of regulation. The Exchange believes that the proposed ORF is a small 
cost for Customer executions.\10\ The Exchange has in place a 
regulatory structure to surveil for, exam [sic] and monitor the 
marketplace for violations of Exchange Rules. The ORF assists the 
Exchange to fund the cost of this regulation of the marketplace.
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    \9\ The ORF is not charged for orders that clear in categories 
other than the Customer range at OCC (e.g., Market Maker orders) 
because members incur the costs of memberships and through their 
memberships are charged transaction fees, dues and other fees that 
go into the general funds of the Exchange, a portion of which is 
used to help pay the costs of regulation.
    \10\ The Exchange does not assess a Customer any transaction 
fees in Multiply Listed Options, except in SPY, and pays Customer 
rebates.
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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. In terms of inter-market 
competition, 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, or rebate opportunities available at other venues to be more 
favorable. In such an environment, the Exchange must continually adjust 
its fees to remain competitive with other exchanges and with 
alternative trading systems that have been exempted from compliance 
with the statutory standards applicable to exchanges. Because 
competitors are free to modify their own fees in response, and because 
market participants may readily adjust their order routing practices, 
the Exchange believes that the degree to which fee changes in this 
market may impose any burden on competition is extremely limited.
    The Exchange does not believe that reducing its ORF creates an 
undue burden on intra-market competition because the adjustment will 
apply to all members on all of their transactions that clear as 
Customer at OCC. The Exchange is obligated to ensure that the amount of 
regulatory revenue collected from the ORF, in combination with its 
other regulatory fees and fines, does not exceed regulatory costs. 
Additionally, the dues and fees paid by members go into the general 
funds of the Exchange,

[[Page 6562]]

a portion of which is used to help pay the costs of regulation. The 
Exchange's members are subject to ORF on other options markets.\11\
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    \11\ The following options exchanges assess an ORF, Chicago 
Board Options Exchange, Incorporated (``CBOE''), C2 Options 
Exchange, Inc. (``C2''), the International Securities Exchange, LLC 
(``ISE''), NYSE Arca, Inc. (``NYSEArca'') and [sic] NYSE AMEX LLC 
(``NYSEAmex''), BATS Exchange, Inc. (``BATS'') and The NASDAQ 
Options Market LLC (``NOM'').
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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.\12\
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    \12\ 15 U.S.C. 78s(b)(3)(A)(ii).
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    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: (i) 
Necessary or appropriate in the public interest; (ii) for the 
protection of investors; or (iii) 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-Phlx-2016-04 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-Phlx-2016-04. 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 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-2016-04 and should be 
submitted on or before February 29, 2016.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\13\
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    \13\ 17 CFR 200.30-3(a)(12).
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Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-02332 Filed 2-5-16; 8:45 am]
BILLING CODE 8011-01-P