[Federal Register Volume 82, Number 53 (Tuesday, March 21, 2017)]
[Notices]
[Pages 14586-14589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-05499]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-80249; File No. SR-ISE-2017-23]


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

March 15, 2017.
    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 March 10, 2017, the International Securities Exchange, LLC (``ISE'' 
or ``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I and II, 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 the Schedule of Fees to: (i) 
Eliminate the Priority Customer complex order rebate for orders in the 
NASDAQ 100 Index option (``NDX'') and in the Mini Nasdaq 100 Index 
option (``MNX''); (ii) increase the Non-Priority Customer License 
Surcharge for Index Options for NDX and MNX options, and (iii) waive 
the Marketing Fees for NDX and MNX, as described further below.
    The text of the proposed rule change is available on the Exchange's 
Web site at 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 
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 purpose of the proposed rule change is to: (i) Eliminate the 
Priority Customer complex order rebate for orders in NDX and MNX; (ii) 
increase the Non-Priority Customer License Surcharge for Index Options 
for NDX and MNX, and (iii) waive marketing fees for NDX and MNX.\3\ The 
Exchange notes that both NDX and MNX are transitioning to be 
exclusively listed on the Exchange and its affiliated markets in 
2017.\4\
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    \3\ The Exchange initially filed the proposed pricing change on 
March 1, 2017 (SR-ISE-2017-21). On March 10, 2017, the Exchange 
withdrew that filing and submitted this filing.
    \4\ The Exchange and its affiliates will exclusively list NDX 
and MNX in the near future upon expiration of open expiries in these 
products on other markets.
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Eliminate Rebate for Priority Customer Complex Orders in Non-Select 
Symbols for Orders in NDX and MNX
    Currently, the Exchange provides rebates to Priority Customer \5\ 
complex orders that trade with non-Priority Customer complex orders in 
the complex order book or trade with quotes and orders on the regular 
order book.\6\ Rebates are tiered based on a member's ADV executed 
during a given month as follows: 0 to 14,999 contracts (``Tier 1''), 
15,000 to 44,999 contracts (``Tier 2''), 45,000 to 59,999 contracts 
(``Tier 3''), 60,000 to 74,999 contracts (``Tier 4''), 75,000 to 99,999 
contracts (``Tier 5''), 100,000 to 124,999 contracts (``Tier 6''), 
125,000 to 224,999 contracts (``Tier 7''), and 225,000 or more 
contracts (``Tier 8''). In Non-Select Symbols,\7\ including NDX and 
MNX, the rebate is $0.40 per contract for Tier 1, $0.60 per contract 
for Tier 2, $0.70 per contract for Tier 3, $0.75 per contract for Tier 
4, $0.75 per contract for Tier 5, $0.80 per contract for Tier 6, $0.81 
per contract for Tier 7, and $0.85 per contract for Tier 8. The 
Exchange now proposes to add note 4 to Section II of the Schedule of 
Fees to provide that no Priority Customer complex order rebates will be 
paid for orders in NDX or MNX.
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    \5\ A ``Priority Customer'' is a person or entity that is not a 
broker/dealer in securities, and does not place more than 390 orders 
in listed options per day on average during a calendar month for its 
own beneficial account(s), as defined in ISE Rule 100(a)(37A).
    \6\ These rebates are provided per contract per leg if the order 
trades with non-Priority Customer orders in the complex order book, 
or trades with quotes and orders on the regular order book.
    \7\ ``Select Symbols'' are options overlying all symbols listed 
on the ISE that are in the Penny Pilot Program. ``Non-Select 
Symbols'' are options overlying all symbols, excluding Select 
Symbols. NDX and MNX are Non-Select Symbols.
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Increase Non-Priority Customer License Surcharge for Index Options for 
NDX and MNX
    The purpose of the second proposed change is to raise revenue for 
the Exchange by increasing the Non-Priority Customer License Surcharge 
for options on NDX and MNX. Currently, a number of Non-Select Symbols 
are index options that are traded on the Exchange pursuant to license 
agreements for which the Exchange charges license surcharges. The 
Exchange charges the following license surcharges for all orders other 
than Priority Customer orders: $ 0.10 per contract for options on BKX, 
and $ 0.22 per contract for options on NDX and MNX. The license 
surcharge fees, which are charged by the Exchange to defray the 
licensing costs, are charged in addition to transaction fees. The 
Exchange is now proposing to amend Section IV.B of the Schedule of Fees 
to increase the Non-Priority Customer License Surcharge for Index 
Options for NDX and MNX from $ 0.22 per contract to $ 0.25 per 
contract.
Waive the Marketing Fee for NDX and MNX Options
    Currently, the Exchange administers a Marketing Fee program that 
helps Market Makers establish Marketing Fee

[[Page 14587]]

arrangements with Electronic Access Members (``EAMs'') in exchange for 
those EAMs routing some or all of their order flow to the Market Maker. 
This Marketing Fee program is funded through a fee of $ 0.70 per 
contract, which is paid by ISE Market Makers for each regular Priority 
Customer contract executed in Non-Select Symbols.\8\ The fee is waived 
in FX Options, Flash Orders, and for Complex Orders in all symbols. The 
Exchange now proposes to amend Section IV.D of the Schedule of Fees to 
similarly waive the fee for NDX and MNX options.
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    \8\ The Marketing Fee is rebated proportionately to the members 
that paid the fee such that on a monthly basis the Marketing Fee 
fund balance administered by a Primary Market Maker for a Group of 
options established under Rule 802(b) does not exceed $100,000 and 
the Marketing Fee fund balance administered by a preferenced 
Competitive Market Maker for such a Group does not exceed $100,000. 
A preferenced Competitive Market Maker that elects not to administer 
a fund will not be charged the Marketing Fee. The Exchange assesses 
an administrative fee of 0.45% on the total amount of the funds 
collected each month.
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\9\ in general, and furthers the objectives of Sections 
6(b)(4) and 6(b)(5) of the Act,\10\ 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, 
and is not designed to permit unfair discrimination between customers, 
issuers, brokers, or dealers.
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(4) and (5).
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    The Commission and the courts have repeatedly expressed their 
preference for competition over regulatory intervention in determining 
prices, products, and services in the securities markets. In Regulation 
NMS, while adopting a series of steps to improve the current market 
model, the Commission highlighted the importance of market forces in 
determining prices and SRO revenues and, also, recognized that current 
regulation of the market system ``has been remarkably successful in 
promoting market competition in its broader forms that are most 
important to investors and listed companies.'' \11\
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    \11\ Securities Exchange Act Release No. 51808 (June 9, 2005), 
70 FR 37496, 37499 (June 29, 2005) (``Regulation NMS Adopting 
Release'').
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    Likewise, in NetCoalition v. Securities and Exchange Commission 
\12\ (``NetCoalition'') the D.C. Circuit upheld the Commission's use of 
a market-based approach in evaluating the fairness of market data fees 
against a challenge claiming that Congress mandated a cost-based 
approach.\13\ As the court emphasized, the Commission ``intended in 
Regulation NMS that `market forces, rather than regulatory 
requirements' play a role in determining the market data . . . to be 
made available to investors and at what cost.'' \14\
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    \12\ NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010).
    \13\ See NetCoalition, at 534-535.
    \14\ Id. at 537.
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    Further, ``[n]o one disputes that competition for order flow is 
`fierce.' . . . As the SEC explained, `[i]n the U.S. national market 
system, buyers and sellers of securities, and the broker-dealers that 
act as their order-routing agents, have a wide range of choices of 
where to route orders for execution'; [and] `no exchange can afford to 
take its market share percentages for granted' because `no exchange 
possesses a monopoly, regulatory or otherwise, in the execution of 
order flow from broker dealers'. . . .'' \15\ Although the court and 
the SEC were discussing the cash equities markets, the Exchange 
believes that these views apply with equal force to the options 
markets.
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    \15\ Id. at 539 (quoting Securities Exchange Act Release No. 
59039 (December 2, 2008), 73 FR 74770, 74782-83 (December 9, 2008) 
(SR-NYSEArca-2006-21)).
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    The Exchange notes that the proposed rule changes are reasonable, 
equitable and not unfairly discriminatory as NDX and MNX transition to 
exclusively listed products. Similar to other proprietary products, the 
Exchange seeks to recoup the operational costs \16\ for listing 
proprietary products. Also, pricing by symbol is a common practice on 
many U.S. options exchanges as a means to incentivize order flow to be 
sent to an exchange for execution in particular products. Other options 
exchanges price by symbol.\17\
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    \16\ By way of example, in analyzing an obvious error, the 
Exchange would have additional data points available in establishing 
a theoretical price for a multiply listed option as compared to a 
proprietary product, which requires additional analysis and 
administrative time to comply with Exchange rules to resolve an 
obvious error.
    \17\ See pricing for RUT on CBOE's Fees Schedule.
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Eliminate Rebate for Priority Customer Complex Orders in Non-Select 
Symbols for Orders in NDX and MNX
    The Exchange's proposal to eliminate the rebate for Priority 
Customer complex orders in Non-Select Symbols for orders in NDX and MNX 
is reasonable because even after elimination of the rebate, Priority 
Customer complex orders in NDX and MNX will not be assessed any Complex 
Order transaction fees.\18\ By contrast, Public Customer executions on 
the C2 Options Exchange in another broad-based index option, the option 
on the Russell 2000 Index (RUT), are subject to a $0.15 per contract 
transaction fee.\19\
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    \18\ Further, the Exchange notes that with its products, market 
participants are offered an opportunity to either transact options 
overlying NDX and MNX or separately execute options overlying 
PowerShares QQQ Trust (``QQQ''), an exchange-traded fund that, like 
MNX and NDX options, is based on the Nasdaq-100 Index. Offering 
products such as QQQ provides market participants with a variety of 
choices in selecting the product they desire as alternatives to NDX 
and MNX. By comparison, a market participant may trade options 
overlying RUT or separately the market participant has the choice of 
trading iShares Russell 2000 Index Fund (``IWM'') Exchange-Traded 
Fund Shares options, which are also multiply listed. When exchanges 
are able to recoup costs associated with offering proprietary 
products, it incentivizes growth and competition for the innovation 
of additional products.
    \19\ See C2 Options Exchange, Incorporated Fees Schedule, 
Section 1.C.
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    The Exchange's proposal to eliminate the rebate for Priority 
Customer complex orders in Non-Select Symbols for orders in NDX and MNX 
is an equitable allocation and is not unfairly discriminatory because 
the Exchange will eliminate the rebate for all similarly-situated 
members.
Increase Non-Priority Customer License Surcharge for Index Options for 
NDX and MNX
    The Exchange believes that its proposal to increase the Non-
Priority Customer License Surcharge for Index Options for NDX and MNX 
is reasonable because it is in line with the options surcharge of $0.25 
for transactions in NDX and MNX on NASDAQ PHLX and is in fact lower 
than the $0.45 C2 Options Exchange surcharge applicable to non-public 
customer transactions in RUT, which is another broad-based index option 
and similar proprietary product.\20\
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    \20\ See C2 Options Exchange, Incorporated Fees Schedule, 
Section 1.D.
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    The Exchange believes that its proposal to increase the Non-
Priority Customer License Surcharge for Index Options for NDX and MNX 
is an equitable allocation and is not unfairly discriminatory because 
the Exchange will apply the increase to all similarly-situated members. 
The Exchange believes it is equitable and not unfairly discriminatory 
to assess this increased 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.

[[Page 14588]]

Waive the Marketing Fee for NDX and MNX
    The Exchange believes that its proposal to waive the Marketing Fee 
for NDX and MNX is reasonable because the purpose of a Marketing Fee is 
to attract order flow to the Exchange. Because NDX and MNX are no 
longer widely traded on many competing options exchanges, a Marketing 
Fee whose purpose is to attract order flow to the Exchange is no longer 
necessary to attract order flow to ISE.
    The Exchange believes that its proposal to waive the Marketing Fee 
for NDX and MNX is an equitable allocation and is not unfairly 
discriminatory because the Exchange will waive the Marketing Fee for 
all similarly-situated members.

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 proposed amendments to the fees will eliminate the rebate for 
Priority Customer complex orders in Non-Select Symbols for orders in 
NDX and MNX, increase the Non-Priority Customer License Surcharge for 
Index Options for NDX and MNX, and waive the Marketing Fee for NDX and 
MNX. In sum, if the changes proposed herein are unattractive to market 
participants, it is likely that the Exchange will lose market share as 
a result. Accordingly, the Exchange does not believe that the proposed 
changes will impair the ability of members or competing order execution 
venues to maintain their competitive standing in the financial markets 
or will impose any inter-market burden on competition for the reasons 
stated above.\21\
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    \21\ See footnote 18 above.
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    In terms of intra-market competition, the elimination of the rebate 
for Priority Customer complex orders for orders in NDX and MNX will 
result in total fees for orders in NDX and MNX becoming more uniform 
across all classes of market participants, while still permitting 
Priority Customers to transact in NDX and MNX free of any transaction 
charge. Removing the rebate will also enhance the Exchange's ability to 
offer other rebates or reduced fees that could incentivize behavior 
that would enhance market quality on the Exchange, which would benefit 
all members.\22\ Likewise, the increase in the Non-Priority Customer 
License Surcharge for Index Options for NDX and MNX will impact all 
Non-Priority Customers equally, and will raise revenue for the Exchange 
without negatively impacting Priority Customers whose orders may 
enhance market quality for all Exchange members. Finally, the waiver of 
the Marketing Fee for NDX and MNX will reduce an existing disparity 
between ISE Market Makers, who currently are subject to the fee, and 
other Exchange members.
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    \22\ The Exchange offers rebates to market participants to 
encourage certain behavior on the Exchange such as adding more 
liquidity in a certain product.
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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,\23\ and Rule 19b-4(f)(2) \24\ thereunder. 
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.
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    \23\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \24\ 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 email to [email protected]. Please include 
File Number SR-ISE-2017-23 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-ISE-2017-23. 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-ISE-2017-23 and should be 
submitted on or before April 11, 2017.
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    \25\ 17 CFR 200.30-3(a)(12).


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    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\25\
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-05499 Filed 3-20-17; 8:45 am]
 BILLING CODE 8011-01-P