82_FR_14440 82 FR 14388 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Pricing for NDX and MNX

82 FR 14388 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Pricing for NDX and MNX

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 82, Issue 52 (March 20, 2017)

Page Range14388-14392
FR Document2017-05409

Federal Register, Volume 82 Issue 52 (Monday, March 20, 2017)
[Federal Register Volume 82, Number 52 (Monday, March 20, 2017)]
[Notices]
[Pages 14388-14392]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-05409]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-80244; File No. SR-Phlx-2017-24]


Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend Pricing 
for NDX and MNX

March 14, 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 9, 2017, NASDAQ 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 the Exchange's Pricing Schedule at 
Section II, entitled ``Multiply Listed Options Fees,'' \3\ to amend 
pricing related to options overlying NDX \4\ and MNX.\5\
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    \3\ These fees include options overlying equities, ETFs, ETNs 
and indexes which are Multiply Listed.
    \4\ NDX represents options on the Nasdaq 100 Index traded under 
the symbol NDX (``NDX'').
    \5\ MNX represents options on one-tenth the value of the Nasdaq 
100 Index traded under the symbol MNX (``MNX'').
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    The text of the proposed rule change is available on the Exchange's 
Web site at http://nasdaqphlx.cchwallstreet.com/ 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend pricing related to NDX and MNX by 
adopting Options Transaction Charges for NDX and MNX and also 
eliminating the Marketing Fee for NDX and MNX.\6\ The Exchange notes 
that both NDX and MNX are transitioning to be exclusively listed on the 
Exchange and its affiliated markets in 2017.\7\
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    \6\ The Exchange initially filed the proposed pricing change on 
February 28, 2017 (SR-Phlx-2017-20). On March 8, 2017, the Exchange 
withdrew that filing and submitted this filing.
    \7\ The Exchange 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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    Today, the Exchange assesses transactions in NDX and MNX the 
following Options Transaction Charges for non-Penny Pilot Options: A 
$0.75 per contract for electronic Professional \8\ transactions and 
$0.25 per contract for floor Professional transactions; $0.25 per 
contract for Specialist \9\ and Market Maker \10\ electronic 
transactions and

[[Page 14389]]

$0.35 per contract for Specialist and Market Maker floor transactions; 
$0.75 per contract for Broker-Dealer \11\ electronic transactions and 
$0.25 per contract for floor Broker-Dealer transactions; and $0.75 per 
contact for Firm \12\ electronic transactions and $0.25 per contract 
for Firm floor transactions. Today, Customers \13\ are not assessed a 
non-Penny Options Transaction Charge for NDX and MNX transactions. 
Also, today, all Non-Customers \14\ are assessed a $0.25 per contract 
surcharge in NDX an MNX.
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    \8\ The term ``Professional'' applies to transactions for the 
accounts of Professionals, as defined in Exchange Rule 1000(b)(14).
    \9\ The term ``Specialist'' applies to transactions for the 
account of a Specialist (as defined in Exchange Rule 1020(a)).
    \10\ The term ``Market Maker'' describes fees and rebates 
applicable to Registered Options Traders (``ROT''), Streaming Quote 
Traders (``SQT'') and Remote Streaming Quote Traders (``RSQT''). 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 SQTs and RSQTs as well as on and off-floor ROTS. An SQT is 
defined in Exchange Rule 1014(b)(ii)(A) as an ROT who has received 
permission from the Exchange to generate and submit option 
quotations electronically in options to which such SQT is assigned. 
An RSQT is defined in Exchange Rule in 1014(b)(ii)(B) as an ROT that 
is a member affiliated with an RSQTO with no physical trading floor 
presence who has received permission from the Exchange to generate 
and submit option quotations electronically in options to which such 
RSQT has been assigned. A Remote Streaming Quote Trader Organization 
or ``RSQTO,'' which may also be referred to as a Remote Market 
Making Organization (``RMO''), is a member organization in good 
standing that satisfies the RSQTO readiness requirements in Rule 
507(a).
    \11\ The term ``Broker-Dealer'' applies to any transaction which 
is not subject to any of the other transaction fees applicable 
within a particular category.
    \12\ The term ``Firm'' applies to any transaction that is 
identified by a member or member organization for clearing in the 
Firm range at The Options Clearing Corporation.
    \13\ The term ``Customer'' applies to any transaction that is 
identified by a member or member organization for clearing in the 
Customer range at The Options Clearing Corporation which is not for 
the account of a broker or dealer or for the account of a 
``Professional'' (as that term is defined in Rule 1000(b)(14)).
    \14\ The term ``Non-Customer'' applies to transactions for the 
accounts of Specialists, Market Makers, Firms, Professionals, 
Broker-Dealers and Joint Back Office.
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    The Exchange proposes to indicate that the Options Transaction 
charges for non-Penny Pilot Options will not apply to NDX and MNX 
transactions and instead adopt new pricing for NDX and MNX. The 
Exchange proposes to adopt the following Options Transaction Charges 
for NDX and MNX. Customers will continue to not be assessed an Options 
Transaction Charge for NDX and MNX. Professionals will be assessed the 
same $0.75 per contract electronic Options Transaction Charge and an 
increased floor Options Transaction Charge of $0.75 per contract \15\ 
for NDX and MNX transactions. A Specialist and Market Maker will be 
assessed an increased electronic Options Transaction Charge of $0.75 
per contract \16\ and the same $0.35 per contract floor Options 
Transaction Charge for NDX and MNX transactions. A Broker-Dealer will 
be assessed the same $0.75 per contract electronic Options Transaction 
Charge and an increased floor Options Transaction Charge of $0.75 per 
contract \17\ for NDX and MNX transactions. Finally, a Firm will be 
assessed the same $0.75 per contract electronic Options Transaction 
Charge and an increased floor Options Transaction Charge of $0.75 per 
contract \18\ for NDX and MNX transactions. The Exchange will continue 
to assess Non-Customers an Options Surcharge for NDX and MNX of $0.25 
per contract as is the case today.\19\ The Exchange is proposing to 
relocate the surcharge to a new note 5 within the Pricing Schedule 
instead of stating the pricing within the current table in Section II 
of the Pricing Schedule.
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    \15\ Today, a Professional is assessed a $0.25 per contract 
floor Options Transaction Charge when transacting NDX and MNX.
    \16\ Today, a Specialist and Market Maker are assessed a $0.25 
per contract floor Options Transaction Charge when transacting NDX 
and MNX.
    \17\ Today, a Broker-Dealer is assessed a $0.25 per contract 
floor Options Transaction Charge when transacting NDX and MNX.
    \18\ Today, a Firm is assessed a $0.25 per contract floor 
Options Transaction Charge when transacting NDX and MNX.
    \19\ For clarity, the Exchange is amending the Customer charge 
from ``N/A'' to ``$0.00.'' The Exchange believes that $0.00 is more 
appropriate to reflect no charge.
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    The Exchange is also proposing to note that a Marketing Fee \20\ 
will not be assessed on NDX and MNX. Today, for trades resulting from 
either Directed or non-Directed Orders that are delivered 
electronically and executed on the Exchange, Specialists, Market Makers 
and Directed ROTs are assessed certain fees on those trades when the 
Specialist unit or Directed ROT elects to participate in the marketing 
program. Specifically, the Exchange assesses options that are trading 
in the Penny Pilot Program $0.25 per contract and the remaining equity 
options are assessed $0.70 per contract (including NDX and MNX). No 
Marketing Fees are assessed on trades that are not delivered 
electronically. No Marketing Fees are assessed on Professional orders. 
Marketing 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.
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    \20\ The Exchange's Marketing Fee helps its Specialists and 
Directed Registered Options Traders (``Directed ROTs'') establish 
payment arrangements with an order flow provider in exchange for 
that order flow provider directing some or all of its order flow to 
that Specialist or Directed ROT. This program is funded through fees 
paid by Registered Options Traders (``ROTs''), Specialists and 
Directed ROTs and assessed on transactions resulting from customer 
orders. A Registered Option Trader 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. See Exchange Rule 1014 (b)(i) and (ii). 
A ``Directed ROT'' is an ROT who is a Directed Participant. The term 
``Directed Participant'' applies to transactions for the account of 
a Specialist or ROT resulting from a customer order that is (1) 
directed to it by an order flow provider, and (2) executed by it 
electronically on Phlx XL II.
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\21\ in general, and furthers the objectives of 
Sections 6(b)(4) and 6(b)(5) of the Act,\22\ 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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    \21\ 15 U.S.C. 78f(b).
    \22\ 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.'' \23\
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    \23\ 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 
\24\ (``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.\25\ 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.'' \26\
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    \24\ NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010).
    \25\ See NetCoalition, at 534-535.
    \26\ 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-

[[Page 14390]]

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'. . . .'' \27\ 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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    \27\ 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's proposal to increase the floor Options Transaction 
Charges for Professionals, Firms and Broker-Dealers from $0.25 to $0.75 
per contract for NDX and MNX is reasonable because the Exchange is 
assessing the same transaction fee whether the transaction occurred 
electronically or on the Exchange's trading floor for these market 
participants. The Exchange's increase for this proprietary product is 
competitive when compared with similar proprietary products.\28\
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    \28\ See Chicago Board Options Exchange, Incorporated's 
(``CBOE'') Fees Schedule. Russell 2000 Index (``RUT'') options 
transactions on CBOE, except customers, are assessed a $0.45 per 
contract surcharge. CBOE assesses Professionals and Broker-Dealers a 
manual and AIM transaction fee of $0.25 per contract and a non-AIM 
transaction fee of $0.65 per contract. CBOE assesses Clearing Trade 
Permit Holders a transaction fee of $0.22 [sic] per contract, 
subject to a sliding scale.
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    With respect to Specialists and Market Makers, the electronic 
Options Transaction Charge for NDX and MNX will be $0.75 per contract, 
similar to other Non-Customer market participants. The Exchange 
believes that it is reasonable to assess Specialists and Market Markers 
the same electronic Options Transactions Charge in NDX and MNX as other 
market participants, except Customers. The Exchange's increase for this 
proprietary product is competitive when compared with similar 
proprietary products.\29\ The Specialist and Market Maker floor Options 
Transaction Charge is not being amended and will remain at $0.35 per 
contract. The Exchange will continue to assess a Specialist and Market 
Maker Options Transaction Charge of $0.35 per contract for floor 
transactions in NDX and MNX because the Exchange desires to incentivize 
Specialists and Market Makers to continue to make markets in the NDX 
and MNX products on the trading floor.
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    \29\ See CBOE's Fees Schedule. RUT transactions on CBOE, except 
customers, are assessed a $0.45 per contract surcharge. CBOE 
assesses market makers a manual and AIM transaction fee of $0.25 per 
contract for RUT transactions. CBOE assesses market makers a non-AIM 
electronic transaction fee of $0.65 per contract for RUT 
transactions.
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    The Exchange's proposal to increase the floor Options Transaction 
Charges for Professionals, Firms and Broker-Dealers from $0.25 to $0.75 
per contract for NDX and MNX is equitable and not unfairly 
discriminatory because the Exchange will uniformly assess a $0.75 per 
contract Options Transaction Charges for all market participants, 
except for Customers, Specialists and Market Makers transacting on the 
floor, regardless of whether the transaction is submitted 
electronically or on the floor. The Exchange believes that assessing 
Customers no transaction fee for NDX and MNX is equitable and not 
unfairly discriminatory because Customer orders bring valuable 
liquidity to the market, which liquidity benefits other market 
participants. Customer liquidity benefits all market participants by 
providing more trading opportunities, which attracts Specialists and 
Market Makers. An increase in the activity of these market participants 
in turn facilitates tighter spreads, which may cause an additional 
corresponding increase in order flow from other market participants.
    With respect to Specialists and Market Makers, the electronic 
Options Transaction Charge for NDX and MNX will be $0.75 per contract, 
similar to other market participants. While this fee is increasing from 
$0.25 to $0.75 per contract, the Exchange, as proposed herein, will no 
longer assess a Marketing Fee for transactions in NDX and MNX, thereby 
effectively lowering the rate. For example, today, a Specialist or 
Market Maker transacting an electronic order in NDX or MNX will be 
assessed a $0.25 per contract Options Transaction Charge in non-Penny 
Pilot Options, a $0.25 per contract Options Surcharge and a $0.70 per 
contract Marketing Fee for a total charge of $1.20. With this proposal, 
a Specialist or Market Maker transacting an electronic order for NDX or 
MNX will be assessed a $0.75 per contract Options Transaction Charge 
and a $0.25 per contract Options Surcharge for a total charge of $1.00. 
No Marketing Fee would be assessed. While all Non-Customer market 
participants would be assessed an electronic Options Transaction Charge 
of $0.75 per contract for NDX or MNX, a Specialist or Market Maker will 
be assessed a lower total transaction charge as explained above, 
compared to today.
    The Exchange believes that assessing Specialist and Market Makers a 
lower floor Options Transaction Charge of $0.35 per contract for 
options overlying NDX and MNX and a higher electronic Options 
Transaction Charge of $0.75 per contract is equitable and not unfairly 
discriminatory. Unlike other market participants, Specialists and 
Market Makers have obligations to the market and regulatory 
requirements, which normally do not apply to other market 
participants.\30\ They have obligations to make continuous markets, 
engage in a course of dealings reasonably calculated to contribute to 
the maintenance of a fair and orderly market, and not make bids or 
offers or enter into transactions that are inconsistent with a course 
of dealings. The differentiation as between Specialists and Market 
Makers and all other market participants recognizes the differing 
contributions made to the liquidity and trading environment on the 
Exchange by these market participants. An increase in the activity of 
these market participants in turn facilitates tighter spreads, which 
may cause an additional corresponding increase in order flow from other 
market participants. Further, Specialists and Market Makers have a time 
and place advantage on the trading floor with respect to orders, unlike 
other market participants. A Professional, Broker-Dealer or a Firm 
would necessarily require a floor broker to represent their trading 
interest on the trading floor as compared to a Specialist or Market 
Maker that could directly transact such orders on the trading floor. 
For these reasons, the Exchange is encouraging Specialists and Market 
Makers to transact NDX and MNX on the trading floor and recognizing the 
obligations of these market participants as compared to other market 
participants.
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    \30\ See Phlx Rule 1014.
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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 \31\ 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.\32\ 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

[[Page 14391]]

overlying PowerShares QQQ Trust (``QQQ'').\33\ Offering products such 
as QQQ provides market participants with a variety of choices in 
selecting the product they desire to utilize to transact NDX and 
MNX.\34\ When exchanges are able to recoup costs associated with 
offering proprietary products, it incentivizes growth and competition 
for the innovation of additional products.
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    \31\ 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.
    \32\ See pricing for RUT on CBOE's Fees Schedule.
    \33\ QQQ is an exchange-traded fund based on the Nasdaq-100 
Index[supreg].
    \34\ 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.
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    The Exchange's proposal to eliminate the Marketing Fee for NDX and 
MNX is reasonable because in light of the transition of NDX and MNX to 
exclusively listed products and new pricing, the Exchange is increasing 
the Specialist and Marker Maker electronic Options Transaction Charges 
for options overlying NDX and MNX. By removing the Marketing Fee, 
Specialists and Market Makers will avoid an increase in costs.
    The Exchange's proposal to eliminate the Marketing Fee for NDX and 
MNX is equitable and not unfairly discriminatory because in light of 
the transition of NDX and MNX to exclusively listed products and new 
pricing, the elimination of this fee will cause Specialists and Market 
Makers to continue to be assessed a lower total charge for the 
transaction as compared to other market participants.

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. 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 
change 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.
    The Exchange's proposal to increase the floor Options Transaction 
Charges for Professionals, Firms and Broker-Dealers from $0.25 to $0.75 
per contract for NDX and MNX does not impose an undue burden on intra-
market competition because the Exchange will uniformly assess a $0.75 
per contract Options Transaction Charges for all market participants, 
except for Customers and Specialists and Markets transacting on the 
floor, regardless of whether the transaction is submitted 
electronically or on the floor. The Exchange believes that assessing 
Customers no transaction fee for NDX and MNX does not impose an undue 
burden on intra-market competition because Customer orders bring 
valuable liquidity to the market, which liquidity benefits other market 
participants. Customer liquidity benefits all market participants by 
providing more trading opportunities, which attract Specialists and 
Market Makers. An increase in the activity of these market participants 
in turn facilitates tighter spreads, which may cause an additional 
corresponding increase in order flow from other market participants. It 
is also important to note that despite the fee increases with respect 
to NDX, members may continue to separately execute options overlying 
PowerShares QQQ Trust (``QQQ'').\35\
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    \35\ 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.
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    With respect to Specialists and Market Makers, increasing the 
electronic Options Transaction Charge for NDX and MNX from $0.25 to 
$0.75 per contract, the Exchange, as proposed herein, does not impose 
an undue burden on intra-market competition as the Exchange will no 
longer assess a Marketing Fee for on NDX and MNX, thereby effectively 
lowering the rate. The Exchange believes that assessing Specialists and 
Market Makers a lower floor Options Transaction Charge of $0.35 per 
contract for NDX and MNX and a higher electronic Options Transaction 
Charge of $0.75 per contract does not impose an undue burden on intra-
market competition. Unlike other market participants, Specialists and 
Market Makers have obligations to the market and regulatory 
requirements, which normally do not apply to other market 
participants.\36\ They have obligations to make continuous markets, 
engage in a course of dealings reasonably calculated to contribute to 
the maintenance of a fair and orderly market, and not make bids or 
offers or enter into transactions that are inconsistent with a course 
of dealings. The differentiation as between Specialists and Market 
Makers and all other market participants recognizes the differing 
contributions made to the liquidity and trading environment on the 
Exchange by these market participants. An increase in the activity of 
these market participants in turn facilitates tighter spreads, which 
may cause an additional corresponding increase in order flow from other 
market participants. Further, Specialists and Market Makers have a time 
and place advantage on the trading floor with respect to orders, unlike 
other market participants. A Professional, Broker-Dealer or a Firm 
would necessarily require a floor broker to represent their trading 
interest on the trading floor as compared to a Specialist or Market 
Maker that could directly transact such orders on the trading floor. 
For these reasons, the Exchange is encouraging Specialists and Market 
Makers to transact NDX and MNX on the trading floor and recognizing the 
obligations of these market participants as compared to other market 
participants.
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    \36\ See note 28.
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    The Exchange's proposal to eliminate the Marketing Fee for NDX and 
MNX does not impose an undue burden on intra-market competition because 
the elimination of this fee will cause Specialists and Market Makers to 
continue to be assessed a lower total charge for the transaction as 
compared to other market participants.

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.\37\
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    \37\ 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

[[Page 14392]]

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 rule-comments@sec.gov. Please include 
File Number SR-Phlx-2017-24 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-2017-24. 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-2017-24, and should be 
submitted on or before April 10, 2017.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\38\
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    \38\ 17 CFR 200.30-3(a)(12).
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Robert W. Errett,
Deputy Secretary.
[FR Doc. 2017-05409 Filed 3-17-17; 8:45 am]
BILLING CODE 8011-01-P



                                                14388                         Federal Register / Vol. 82, No. 52 / Monday, March 20, 2017 / Notices

                                                Commission to consider matters related                  Representative: Natalie R. Ward;                      com/, at the principal office of the
                                                to negotiated service agreement(s). The                 Comments Due: March 21, 2017.                         Exchange, and at the Commission’s
                                                request(s) may propose the addition or                    3. Docket No(s).: CP2017–131; Filing                Public Reference Room.
                                                removal of a negotiated service                         Title: Notice of United States Postal
                                                                                                                                                              II. Self-Regulatory Organization’s
                                                agreement from the market dominant or                   Service of Filing Functionally
                                                the competitive product list, or the                                                                          Statement of the Purpose of, and
                                                                                                        Equivalent Inbound Competitive Multi-
                                                modification of an existing product                                                                           Statutory Basis for, the Proposed Rule
                                                                                                        Service Agreement with a Foreign Postal
                                                currently appearing on the market                                                                             Change
                                                                                                        Operator, and Application for Non-
                                                dominant or the competitive product                     Public Treatment of Materials; Filing                   In its filing with the Commission, the
                                                list.                                                   Acceptance Date: March 13, 2017; Filing               Exchange included statements
                                                   Section II identifies the docket                     Authority: 39 CFR 3015.5; Public                      concerning the purpose of and basis for
                                                number(s) associated with each Postal                   Representative: Natalie R. Ward;                      the proposed rule change and discussed
                                                Service request, the title of each Postal               Comments Due: March 21, 2017.                         any comments it received on the
                                                Service request, the request’s acceptance                 This notice will be published in the                proposed rule change. The text of these
                                                date, and the authority cited by the                    Federal Register.                                     statements may be examined at the
                                                Postal Service for each request. For each                                                                     places specified in Item IV below. The
                                                request, the Commission appoints an                     Ruth Ann Abrams,
                                                                                                                                                              Exchange has prepared summaries, set
                                                officer of the Commission to represent                  Acting Secretary.                                     forth in sections A, B, and C below, of
                                                the interests of the general public in the              [FR Doc. 2017–05412 Filed 3–17–17; 8:45 am]           the most significant aspects of such
                                                proceeding, pursuant to 39 U.S.C. 505                   BILLING CODE 7710–FW–P                                statements.
                                                (Public Representative). Section II also
                                                establishes comment deadline(s)                                                                               A. Self-Regulatory Organization’s
                                                pertaining to each request.                             SECURITIES AND EXCHANGE                               Statement of the Purpose of, and the
                                                   The public portions of the Postal                    COMMISSION                                            Statutory Basis for, the Proposed Rule
                                                Service’s request(s) can be accessed via                                                                      Change
                                                the Commission’s Web site (http://                      [Release No. 34–80244; File No. SR–Phlx–
                                                                                                        2017–24]                                              1. Purpose
                                                www.prc.gov). Non-public portions of
                                                the Postal Service’s request(s), if any,                                                                         The Exchange proposes to amend
                                                                                                        Self-Regulatory Organizations;                        pricing related to NDX and MNX by
                                                can be accessed through compliance                      NASDAQ PHLX LLC; Notice of Filing
                                                with the requirements of 39 CFR                                                                               adopting Options Transaction Charges
                                                                                                        and Immediate Effectiveness of                        for NDX and MNX and also eliminating
                                                3007.40.                                                Proposed Rule Change To Amend
                                                   The Commission invites comments on                                                                         the Marketing Fee for NDX and MNX.6
                                                                                                        Pricing for NDX and MNX                               The Exchange notes that both NDX and
                                                whether the Postal Service’s request(s)
                                                in the captioned docket(s) are consistent               March 14, 2017.                                       MNX are transitioning to be exclusively
                                                with the policies of title 39. For                         Pursuant to Section 19(b)(1) of the                listed on the Exchange and its affiliated
                                                request(s) that the Postal Service states               Securities Exchange Act of 1934                       markets in 2017.7
                                                concern market dominant product(s),                     (‘‘Act’’), 1 and Rule 19b–4 thereunder,2                 Today, the Exchange assesses
                                                applicable statutory and regulatory                     notice is hereby given that on March 9,               transactions in NDX and MNX the
                                                requirements include 39 U.S.C. 3622, 39                 2017, NASDAQ PHLX LLC (‘‘Phlx’’ or                    following Options Transaction Charges
                                                U.S.C. 3642, 39 CFR part 3010, and 39                   ‘‘Exchange’’) filed with the Securities               for non-Penny Pilot Options: A $0.75
                                                CFR part 3020, subpart B. For request(s)                and Exchange Commission (‘‘SEC’’ or                   per contract for electronic Professional 8
                                                that the Postal Service states concern                  ‘‘Commission’’) the proposed rule                     transactions and $0.25 per contract for
                                                competitive product(s), applicable                      change as described in Items I, II, and               floor Professional transactions; $0.25
                                                statutory and regulatory requirements                   III, below, which Items have been                     per contract for Specialist 9 and Market
                                                include 39 U.S.C. 3632, 39 U.S.C. 3633,                 prepared by the Exchange. The                         Maker 10 electronic transactions and
                                                39 U.S.C. 3642, 39 CFR part 3015, and                   Commission is publishing this notice to                  6 The Exchange initially filed the proposed
                                                39 CFR part 3020, subpart B. Comment                    solicit comments on the proposed rule                 pricing change on February 28, 2017 (SR–Phlx–
                                                deadline(s) for each request appear in                  change from interested persons.                       2017–20). On March 8, 2017, the Exchange
                                                section II.                                                                                                   withdrew that filing and submitted this filing.
                                                                                                        I. Self-Regulatory Organization’s                        7 The Exchange will exclusively list NDX and
                                                II. Docketed Proceeding(s)                              Statement of the Terms of Substance of                MNX in the near future upon expiration of open
                                                   1. Docket No(s).: CP2016–223; Filing                 the Proposed Rule Change                              expiries in these products on other markets.
                                                                                                                                                                 8 The term ‘‘Professional’’ applies to transactions
                                                Title: Notice of the United States Postal                  The Exchange proposes to amend the                 for the accounts of Professionals, as defined in
                                                Service of Filing Modification to Global                Exchange’s Pricing Schedule at Section                Exchange Rule 1000(b)(14).
                                                Expedited Package Services 3                            II, entitled ‘‘Multiply Listed Options                   9 The term ‘‘Specialist’’ applies to transactions for

                                                Negotiated Service Agreement; Filing                    Fees,’’ 3 to amend pricing related to                 the account of a Specialist (as defined in Exchange
                                                Acceptance Date: March 13, 2017; Filing                                                                       Rule 1020(a)).
                                                                                                        options overlying NDX 4 and MNX.5                        10 The term ‘‘Market Maker’’ describes fees and
                                                Authority: 39 CFR 3015.5; Public                           The text of the proposed rule change               rebates applicable to Registered Options Traders
                                                Representative: Kenneth R. Moeller;                     is available on the Exchange’s Web site               (‘‘ROT’’), Streaming Quote Traders (‘‘SQT’’) and
                                                Comments Due: March 21, 2017.                           at http://nasdaqphlx.cchwallstreet.                   Remote Streaming Quote Traders (‘‘RSQT’’). A ROT
                                                   2. Docket No(s).: CP2017–130; Filing                                                                       is defined in Exchange Rule 1014(b) as a regular
                                                Title: Notice of United States Postal                                                                         member of the Exchange located on the trading
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                                                                                                          1 15 U.S.C. 78s(b)(1).
                                                                                                                                                              floor who has received permission from the
                                                Service of Filing Functionally                            2 17 CFR 240.19b–4.                                 Exchange to trade in options for his own account.
                                                Equivalent Inbound Competitive Multi-                     3 These fees include options overlying equities,
                                                                                                                                                              A ROT includes SQTs and RSQTs as well as on and
                                                Service Agreement with a Foreign Postal                 ETFs, ETNs and indexes which are Multiply Listed.     off-floor ROTS. An SQT is defined in Exchange
                                                                                                          4 NDX represents options on the Nasdaq 100
                                                Operator, and Application for Non-                                                                            Rule 1014(b)(ii)(A) as an ROT who has received
                                                                                                        Index traded under the symbol NDX (‘‘NDX’’).          permission from the Exchange to generate and
                                                Public Treatment of Materials; Filing                     5 MNX represents options on one-tenth the value     submit option quotations electronically in options
                                                Acceptance Date: March 13, 2017; Filing                 of the Nasdaq 100 Index traded under the symbol       to which such SQT is assigned. An RSQT is defined
                                                Authority: 39 CFR 3015.5; Public                        MNX (‘‘MNX’’).                                        in Exchange Rule in 1014(b)(ii)(B) as an ROT that



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                                                                                Federal Register / Vol. 82, No. 52 / Monday, March 20, 2017 / Notices                                                         14389

                                                $0.35 per contract for Specialist and                     Options Transaction Charge and an                         instructions of the Specialist units/
                                                Market Maker floor transactions; $0.75                    increased floor Options Transaction                       Specialists or Directed ROTs to order
                                                per contract for Broker-Dealer 11                         Charge of $0.75 per contract 17 for NDX                   flow providers who are members or
                                                electronic transactions and $0.25 per                     and MNX transactions. Finally, a Firm                     member organizations, who submit, as
                                                contract for floor Broker-Dealer                          will be assessed the same $0.75 per                       agent, Customer orders to the Exchange
                                                transactions; and $0.75 per contact for                   contract electronic Options Transaction                   or non-members or non-member
                                                Firm 12 electronic transactions and                       Charge and an increased floor Options                     organizations who submit, as agent,
                                                $0.25 per contract for Firm floor                         Transaction Charge of $0.75 per                           Customer orders to the Exchange
                                                transactions. Today, Customers 13 are                     contract 18 for NDX and MNX                               through a member or member
                                                not assessed a non-Penny Options                          transactions. The Exchange will                           organization who is acting as agent for
                                                Transaction Charge for NDX and MNX                        continue to assess Non-Customers an                       those Customer orders.
                                                transactions. Also, today, all Non-                       Options Surcharge for NDX and MNX of                      2. Statutory Basis
                                                Customers 14 are assessed a $0.25 per                     $0.25 per contract as is the case today.19
                                                contract surcharge in NDX an MNX.                         The Exchange is proposing to relocate                        The Exchange believes that its
                                                   The Exchange proposes to indicate                      the surcharge to a new note 5 within the                  proposal is consistent with Section 6(b)
                                                that the Options Transaction charges for                  Pricing Schedule instead of stating the                   of the Act,21 in general, and furthers the
                                                non-Penny Pilot Options will not apply                    pricing within the current table in                       objectives of Sections 6(b)(4) and 6(b)(5)
                                                to NDX and MNX transactions and                           Section II of the Pricing Schedule.                       of the Act,22 in particular, in that it
                                                instead adopt new pricing for NDX and                        The Exchange is also proposing to                      provides for the equitable allocation of
                                                MNX. The Exchange proposes to adopt                       note that a Marketing Fee 20 will not be                  reasonable dues, fees and other charges
                                                the following Options Transaction                         assessed on NDX and MNX. Today, for                       among members and issuers and other
                                                Charges for NDX and MNX. Customers                        trades resulting from either Directed or                  persons using any facility, and is not
                                                will continue to not be assessed an                       non-Directed Orders that are delivered                    designed to permit unfair
                                                Options Transaction Charge for NDX                        electronically and executed on the                        discrimination between customers,
                                                and MNX. Professionals will be assessed                   Exchange, Specialists, Market Makers                      issuers, brokers, or dealers.
                                                the same $0.75 per contract electronic                                                                                 The Commission and the courts have
                                                                                                          and Directed ROTs are assessed certain
                                                Options Transaction Charge and an                                                                                   repeatedly expressed their preference
                                                                                                          fees on those trades when the Specialist
                                                increased floor Options Transaction                                                                                 for competition over regulatory
                                                                                                          unit or Directed ROT elects to
                                                Charge of $0.75 per contract 15 for NDX                                                                             intervention in determining prices,
                                                                                                          participate in the marketing program.
                                                and MNX transactions. A Specialist and                                                                              products, and services in the securities
                                                                                                          Specifically, the Exchange assesses
                                                Market Maker will be assessed an                                                                                    markets. In Regulation NMS, while
                                                                                                          options that are trading in the Penny
                                                increased electronic Options                                                                                        adopting a series of steps to improve the
                                                                                                          Pilot Program $0.25 per contract and the
                                                Transaction Charge of $0.75 per                                                                                     current market model, the Commission
                                                                                                          remaining equity options are assessed
                                                contract 16 and the same $0.35 per                                                                                  highlighted the importance of market
                                                                                                          $0.70 per contract (including NDX and
                                                contract floor Options Transaction                                                                                  forces in determining prices and SRO
                                                                                                          MNX). No Marketing Fees are assessed
                                                Charge for NDX and MNX transactions.                                                                                revenues and, also, recognized that
                                                                                                          on trades that are not delivered
                                                A Broker-Dealer will be assessed the                                                                                current regulation of the market system
                                                                                                          electronically. No Marketing Fees are
                                                same $0.75 per contract electronic                                                                                  ‘‘has been remarkably successful in
                                                                                                          assessed on Professional orders.
                                                                                                                                                                    promoting market competition in its
                                                                                                          Marketing Fees are assessed on
                                                is a member affiliated with an RSQTO with no                                                                        broader forms that are most important to
                                                                                                          transactions resulting from Customer
                                                physical trading floor presence who has received                                                                    investors and listed companies.’’ 23
                                                permission from the Exchange to generate and              orders and are available to be disbursed                     Likewise, in NetCoalition v. Securities
                                                submit option quotations electronically in options        by the Exchange according to the                          and Exchange Commission 24
                                                to which such RSQT has been assigned. A Remote
                                                Streaming Quote Trader Organization or ‘‘RSQTO,’’            17 Today, a Broker-Dealer is assessed a $0.25 per
                                                                                                                                                                    (‘‘NetCoalition’’) the D.C. Circuit upheld
                                                which may also be referred to as a Remote Market          contract floor Options Transaction Charge when            the Commission’s use of a market-based
                                                Making Organization (‘‘RMO’’), is a member                transacting NDX and MNX.                                  approach in evaluating the fairness of
                                                organization in good standing that satisfies the
                                                RSQTO readiness requirements in Rule 507(a).
                                                                                                             18 Today, a Firm is assessed a $0.25 per contract      market data fees against a challenge
                                                   11 The term ‘‘Broker-Dealer’’ applies to any
                                                                                                          floor Options Transaction Charge when transacting         claiming that Congress mandated a cost-
                                                                                                          NDX and MNX.
                                                transaction which is not subject to any of the other         19 For clarity, the Exchange is amending the
                                                                                                                                                                    based approach.25 As the court
                                                transaction fees applicable within a particular
                                                                                                          Customer charge from ‘‘N/A’’ to ‘‘$0.00.’’ The            emphasized, the Commission ‘‘intended
                                                category.                                                                                                           in Regulation NMS that ‘market forces,
                                                   12 The term ‘‘Firm’’ applies to any transaction that
                                                                                                          Exchange believes that $0.00 is more appropriate to
                                                is identified by a member or member organization
                                                                                                          reflect no charge.                                        rather than regulatory requirements’
                                                                                                             20 The Exchange’s Marketing Fee helps its
                                                for clearing in the Firm range at The Options                                                                       play a role in determining the market
                                                                                                          Specialists and Directed Registered Options Traders
                                                Clearing Corporation.
                                                                                                          (‘‘Directed ROTs’’) establish payment arrangements
                                                                                                                                                                    data . . . to be made available to
                                                   13 The term ‘‘Customer’’ applies to any
                                                                                                          with an order flow provider in exchange for that          investors and at what cost.’’ 26
                                                transaction that is identified by a member or             order flow provider directing some or all of its order       Further, ‘‘[n]o one disputes that
                                                member organization for clearing in the Customer          flow to that Specialist or Directed ROT. This
                                                range at The Options Clearing Corporation which is                                                                  competition for order flow is ‘fierce.’
                                                                                                          program is funded through fees paid by Registered
                                                not for the account of a broker or dealer or for the      Options Traders (‘‘ROTs’’), Specialists and Directed
                                                                                                                                                                    . . . As the SEC explained, ‘[i]n the U.S.
                                                account of a ‘‘Professional’’ (as that term is defined    ROTs and assessed on transactions resulting from          national market system, buyers and
                                                in Rule 1000(b)(14)).                                     customer orders. A Registered Option Trader is            sellers of securities, and the broker-
                                                   14 The term ‘‘Non-Customer’’ applies to
                                                                                                          defined in Exchange Rule 1014(b) as a regular
                                                transactions for the accounts of Specialists, Market      member of the Exchange located on the trading
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                                                                                                                                                                      21 15   U.S.C. 78f(b).
                                                Makers, Firms, Professionals, Broker-Dealers and          floor who has received permission from the                  22 15   U.S.C. 78f(b)(4) and (5).
                                                Joint Back Office.                                        Exchange to trade in options for his own account.
                                                   15 Today, a Professional is assessed a $0.25 per                                                                    23 Securities Exchange Act Release No. 51808
                                                                                                          See Exchange Rule 1014 (b)(i) and (ii). A ‘‘Directed
                                                contract floor Options Transaction Charge when            ROT’’ is an ROT who is a Directed Participant. The        (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005)
                                                transacting NDX and MNX.                                  term ‘‘Directed Participant’’ applies to transactions     (‘‘Regulation NMS Adopting Release’’).
                                                   16 Today, a Specialist and Market Maker are                                                                         24 NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir.
                                                                                                          for the account of a Specialist or ROT resulting from
                                                assessed a $0.25 per contract floor Options               a customer order that is (1) directed to it by an order   2010).
                                                                                                                                                                       25 See NetCoalition, at 534–535.
                                                Transaction Charge when transacting NDX and               flow provider, and (2) executed by it electronically
                                                MNX.                                                      on Phlx XL II.                                               26 Id. at 537.




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                                                14390                           Federal Register / Vol. 82, No. 52 / Monday, March 20, 2017 / Notices

                                                dealers that act as their order-routing                  the NDX and MNX products on the                      Options Transaction Charge of $0.75 per
                                                agents, have a wide range of choices of                  trading floor.                                       contract is equitable and not unfairly
                                                where to route orders for execution’;                       The Exchange’s proposal to increase               discriminatory. Unlike other market
                                                [and] ‘no exchange can afford to take its                the floor Options Transaction Charges                participants, Specialists and Market
                                                market share percentages for granted’                    for Professionals, Firms and Broker-                 Makers have obligations to the market
                                                because ‘no exchange possesses a                         Dealers from $0.25 to $0.75 per contract             and regulatory requirements, which
                                                monopoly, regulatory or otherwise, in                    for NDX and MNX is equitable and not                 normally do not apply to other market
                                                the execution of order flow from broker                  unfairly discriminatory because the                  participants.30 They have obligations to
                                                dealers’. . . .’’ 27 Although the court                  Exchange will uniformly assess a $0.75               make continuous markets, engage in a
                                                and the SEC were discussing the cash                     per contract Options Transaction                     course of dealings reasonably calculated
                                                equities markets, the Exchange believes                  Charges for all market participants,                 to contribute to the maintenance of a
                                                that these views apply with equal force                  except for Customers, Specialists and                fair and orderly market, and not make
                                                to the options markets.                                  Market Makers transacting on the floor,              bids or offers or enter into transactions
                                                   The Exchange’s proposal to increase                   regardless of whether the transaction is             that are inconsistent with a course of
                                                the floor Options Transaction Charges                    submitted electronically or on the floor.            dealings. The differentiation as between
                                                for Professionals, Firms and Broker-                     The Exchange believes that assessing                 Specialists and Market Makers and all
                                                Dealers from $0.25 to $0.75 per contract                 Customers no transaction fee for NDX                 other market participants recognizes the
                                                for NDX and MNX is reasonable because                    and MNX is equitable and not unfairly                differing contributions made to the
                                                the Exchange is assessing the same                       discriminatory because Customer orders               liquidity and trading environment on
                                                transaction fee whether the transaction                  bring valuable liquidity to the market,              the Exchange by these market
                                                occurred electronically or on the                        which liquidity benefits other market                participants. An increase in the activity
                                                Exchange’s trading floor for these                       participants. Customer liquidity benefits            of these market participants in turn
                                                market participants. The Exchange’s                      all market participants by providing                 facilitates tighter spreads, which may
                                                increase for this proprietary product is                 more trading opportunities, which                    cause an additional corresponding
                                                competitive when compared with                           attracts Specialists and Market Makers.              increase in order flow from other market
                                                similar proprietary products.28                          An increase in the activity of these                 participants. Further, Specialists and
                                                   With respect to Specialists and                       market participants in turn facilitates              Market Makers have a time and place
                                                Market Makers, the electronic Options                    tighter spreads, which may cause an                  advantage on the trading floor with
                                                Transaction Charge for NDX and MNX                       additional corresponding increase in                 respect to orders, unlike other market
                                                will be $0.75 per contract, similar to                   order flow from other market                         participants. A Professional, Broker-
                                                other Non-Customer market                                participants.                                        Dealer or a Firm would necessarily
                                                                                                            With respect to Specialists and                   require a floor broker to represent their
                                                participants. The Exchange believes that
                                                                                                         Market Makers, the electronic Options                trading interest on the trading floor as
                                                it is reasonable to assess Specialists and
                                                                                                         Transaction Charge for NDX and MNX                   compared to a Specialist or Market
                                                Market Markers the same electronic
                                                                                                         will be $0.75 per contract, similar to               Maker that could directly transact such
                                                Options Transactions Charge in NDX
                                                                                                         other market participants. While this fee            orders on the trading floor. For these
                                                and MNX as other market participants,
                                                                                                         is increasing from $0.25 to $0.75 per                reasons, the Exchange is encouraging
                                                except Customers. The Exchange’s
                                                                                                         contract, the Exchange, as proposed                  Specialists and Market Makers to
                                                increase for this proprietary product is
                                                                                                         herein, will no longer assess a                      transact NDX and MNX on the trading
                                                competitive when compared with
                                                                                                         Marketing Fee for transactions in NDX                floor and recognizing the obligations of
                                                similar proprietary products.29 The
                                                                                                         and MNX, thereby effectively lowering                these market participants as compared
                                                Specialist and Market Maker floor                        the rate. For example, today, a Specialist
                                                Options Transaction Charge is not being                                                                       to other market participants.
                                                                                                         or Market Maker transacting an                          The Exchange notes that the proposed
                                                amended and will remain at $0.35 per                     electronic order in NDX or MNX will be
                                                contract. The Exchange will continue to                                                                       rule changes are reasonable, equitable
                                                                                                         assessed a $0.25 per contract Options                and not unfairly discriminatory as NDX
                                                assess a Specialist and Market Maker                     Transaction Charge in non-Penny Pilot
                                                Options Transaction Charge of $0.35 per                                                                       and MNX transition to exclusively listed
                                                                                                         Options, a $0.25 per contract Options                products. Similar to other proprietary
                                                contract for floor transactions in NDX                   Surcharge and a $0.70 per contract
                                                and MNX because the Exchange desires                                                                          products, the Exchange seeks to recoup
                                                                                                         Marketing Fee for a total charge of                  the operational costs 31 for listing
                                                to incentivize Specialists and Market                    $1.20. With this proposal, a Specialist or
                                                Makers to continue to make markets in                                                                         proprietary products. Also, pricing by
                                                                                                         Market Maker transacting an electronic               symbol is a common practice on many
                                                                                                         order for NDX or MNX will be assessed                U.S. options exchanges as a means to
                                                  27 Id. at 539 (quoting Securities Exchange Act
                                                                                                         a $0.75 per contract Options                         incentivize order flow to be sent to an
                                                Release No. 59039 (December 2, 2008), 73 FR
                                                74770, 74782–83 (December 9, 2008) (SR–                  Transaction Charge and a $0.25 per                   exchange for execution in particular
                                                NYSEArca–2006–21)).                                      contract Options Surcharge for a total               products. Other options exchanges price
                                                  28 See Chicago Board Options Exchange,                 charge of $1.00. No Marketing Fee                    by symbol.32 Further, the Exchange
                                                Incorporated’s (‘‘CBOE’’) Fees Schedule. Russell         would be assessed. While all Non-
                                                2000 Index (‘‘RUT’’) options transactions on CBOE,                                                            notes that with its products, market
                                                except customers, are assessed a $0.45 per contract
                                                                                                         Customer market participants would be                participants are offered an opportunity
                                                surcharge. CBOE assesses Professionals and Broker-       assessed an electronic Options                       to either transact options overlying NDX
                                                Dealers a manual and AIM transaction fee of $0.25        Transaction Charge of $0.75 per contract             and MNX or separately execute options
                                                per contract and a non-AIM transaction fee of $0.65      for NDX or MNX, a Specialist or Market
                                                per contract. CBOE assesses Clearing Trade Permit
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                                                Holders a transaction fee of $0.22 [sic] per contract,
                                                                                                         Maker will be assessed a lower total                   30 See Phlx Rule 1014.
                                                subject to a sliding scale.                              transaction charge as explained above,                 31 By  way of example, in analyzing an obvious
                                                  29 See CBOE’s Fees Schedule. RUT transactions          compared to today.                                   error, the Exchange would have additional data
                                                on CBOE, except customers, are assessed a $0.45             The Exchange believes that assessing              points available in establishing a theoretical price
                                                per contract surcharge. CBOE assesses market             Specialist and Market Makers a lower                 for a Multiply Listed Option as compared to a
                                                makers a manual and AIM transaction fee of $0.25                                                              proprietary product, which requires additional
                                                per contract for RUT transactions. CBOE assesses
                                                                                                         floor Options Transaction Charge of                  analysis and administrative time to comply with
                                                market makers a non-AIM electronic transaction fee       $0.35 per contract for options overlying             Exchange rules to resolve an obvious error.
                                                of $0.65 per contract for RUT transactions.              NDX and MNX and a higher electronic                    32 See pricing for RUT on CBOE’s Fees Schedule.




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                                                                               Federal Register / Vol. 82, No. 52 / Monday, March 20, 2017 / Notices                                                14391

                                                overlying PowerShares QQQ Trust                         burden on competition is extremely                      intra-market competition. Unlike other
                                                (‘‘QQQ’’).33 Offering products such as                  limited. In sum, if the changes proposed                market participants, Specialists and
                                                QQQ provides market participants with                   herein are unattractive to market                       Market Makers have obligations to the
                                                a variety of choices in selecting the                   participants, it is likely that the                     market and regulatory requirements,
                                                product they desire to utilize to transact              Exchange will lose market share as a                    which normally do not apply to other
                                                NDX and MNX.34 When exchanges are                       result. Accordingly, the Exchange does                  market participants.36 They have
                                                able to recoup costs associated with                    not believe that the proposed change                    obligations to make continuous markets,
                                                offering proprietary products, it                       will impair the ability of members or                   engage in a course of dealings
                                                incentivizes growth and competition for                 competing order execution venues to                     reasonably calculated to contribute to
                                                the innovation of additional products.                  maintain their competitive standing in                  the maintenance of a fair and orderly
                                                   The Exchange’s proposal to eliminate                 the financial markets or will impose any                market, and not make bids or offers or
                                                the Marketing Fee for NDX and MNX is                    inter-market burden on competition for                  enter into transactions that are
                                                reasonable because in light of the                      the reasons stated above.                               inconsistent with a course of dealings.
                                                transition of NDX and MNX to                               The Exchange’s proposal to increase                  The differentiation as between
                                                exclusively listed products and new                     the floor Options Transaction Charges                   Specialists and Market Makers and all
                                                pricing, the Exchange is increasing the                 for Professionals, Firms and Broker-                    other market participants recognizes the
                                                Specialist and Marker Maker electronic                  Dealers from $0.25 to $0.75 per contract                differing contributions made to the
                                                Options Transaction Charges for options                 for NDX and MNX does not impose an                      liquidity and trading environment on
                                                overlying NDX and MNX. By removing                      undue burden on intra-market                            the Exchange by these market
                                                the Marketing Fee, Specialists and                      competition because the Exchange will                   participants. An increase in the activity
                                                Market Makers will avoid an increase in                 uniformly assess a $0.75 per contract                   of these market participants in turn
                                                costs.                                                  Options Transaction Charges for all                     facilitates tighter spreads, which may
                                                   The Exchange’s proposal to eliminate                 market participants, except for                         cause an additional corresponding
                                                the Marketing Fee for NDX and MNX is                    Customers and Specialists and Markets                   increase in order flow from other market
                                                equitable and not unfairly                              transacting on the floor, regardless of                 participants. Further, Specialists and
                                                discriminatory because in light of the                  whether the transaction is submitted                    Market Makers have a time and place
                                                transition of NDX and MNX to                            electronically or on the floor. The                     advantage on the trading floor with
                                                exclusively listed products and new                     Exchange believes that assessing                        respect to orders, unlike other market
                                                pricing, the elimination of this fee will               Customers no transaction fee for NDX                    participants. A Professional, Broker-
                                                cause Specialists and Market Makers to                  and MNX does not impose an undue                        Dealer or a Firm would necessarily
                                                continue to be assessed a lower total                   burden on intra-market competition                      require a floor broker to represent their
                                                charge for the transaction as compared                  because Customer orders bring valuable                  trading interest on the trading floor as
                                                to other market participants.                           liquidity to the market, which liquidity                compared to a Specialist or Market
                                                B. Self-Regulatory Organization’s                       benefits other market participants.                     Maker that could directly transact such
                                                Statement on Burden on Competition                      Customer liquidity benefits all market                  orders on the trading floor. For these
                                                                                                        participants by providing more trading                  reasons, the Exchange is encouraging
                                                   The Exchange does not believe that                   opportunities, which attract Specialists
                                                the proposed rule change will impose                                                                            Specialists and Market Makers to
                                                                                                        and Market Makers. An increase in the                   transact NDX and MNX on the trading
                                                any burden on competition not                           activity of these market participants in
                                                necessary or appropriate in furtherance                                                                         floor and recognizing the obligations of
                                                                                                        turn facilitates tighter spreads, which                 these market participants as compared
                                                of the purposes of the Act. In terms of                 may cause an additional corresponding
                                                inter-market competition, the Exchange                                                                          to other market participants.
                                                                                                        increase in order flow from other market                   The Exchange’s proposal to eliminate
                                                notes that it operates in a highly                      participants. It is also important to note              the Marketing Fee for NDX and MNX
                                                competitive market in which market                      that despite the fee increases with                     does not impose an undue burden on
                                                participants can readily favor competing                respect to NDX, members may continue                    intra-market competition because the
                                                venues if they deem fee levels at a                     to separately execute options overlying                 elimination of this fee will cause
                                                particular venue to be excessive, or                    PowerShares QQQ Trust (‘‘QQQ’’).35                      Specialists and Market Makers to
                                                rebate opportunities available at other                    With respect to Specialists and                      continue to be assessed a lower total
                                                venues to be more favorable. In such an                 Market Makers, increasing the electronic                charge for the transaction as compared
                                                environment, the Exchange must                          Options Transaction Charge for NDX
                                                                                                                                                                to other market participants.
                                                continually adjust its fees to remain                   and MNX from $0.25 to $0.75 per
                                                competitive with other exchanges and                    contract, the Exchange, as proposed                     C. Self-Regulatory Organization’s
                                                with alternative trading systems that                   herein, does not impose an undue                        Statement on Comments on the
                                                have been exempted from compliance                      burden on intra-market competition as                   Proposed Rule Change Received From
                                                with the statutory standards applicable                 the Exchange will no longer assess a                    Members, Participants, or Others
                                                to exchanges. Because competitors are                   Marketing Fee for on NDX and MNX,                         No written comments were either
                                                free to modify their own fees in                        thereby effectively lowering the rate.                  solicited or received.
                                                response, and because market                            The Exchange believes that assessing
                                                participants may readily adjust their                   Specialists and Market Makers a lower                   III. Date of Effectiveness of the
                                                order routing practices, the Exchange                   floor Options Transaction Charge of                     Proposed Rule Change and Timing for
                                                believes that the degree to which fee                   $0.35 per contract for NDX and MNX                      Commission Action
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                                                changes in this market may impose any                   and a higher electronic Options                            The foregoing rule change has become
                                                                                                        Transaction Charge of $0.75 per contract                effective pursuant to Section
                                                  33 QQQ is an exchange-traded fund based on the        does not impose an undue burden on                      19(b)(3)(A)(ii) of the Act.37
                                                Nasdaq-100 Index®.                                                                                                 At any time within 60 days of the
                                                  34 By comparison, a market participant may trade        35 By comparison, a market participant may trade
                                                options overlying RUT or separately the market
                                                                                                                                                                filing of the proposed rule change, the
                                                                                                        options overlying RUT or separately the market
                                                participant has the choice of trading iShares Russell   participant has the choice of trading iShares Russell
                                                                                                                                                                 36 See   note 28.
                                                2000 Index Fund (‘‘IWM’’) Exchange-Traded Fund          2000 Index Fund (‘‘IWM’’) Exchange-Traded Fund
                                                Shares options, which are also multiply listed.         Shares options, which are also multiply listed.          37 15   U.S.C. 78s(b)(3)(A)(ii).



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                                                14392                         Federal Register / Vol. 82, No. 52 / Monday, March 20, 2017 / Notices

                                                Commission summarily may                                available publicly. All submissions                   places specified in Item IV below. The
                                                temporarily suspend such rule change if                 should refer to File Number SR–Phlx–                  Exchange has prepared summaries, set
                                                it appears to the Commission that such                  2017–24, and should be submitted on or                forth in sections A, B, and C below, of
                                                action is: (i) Necessary or appropriate in              before April 10, 2017.                                the most significant aspects of such
                                                the public interest; (ii) for the protection              For the Commission, by the Division of              statements.
                                                of investors; or (iii) otherwise in                     Trading and Markets, pursuant to delegated            A. Self-Regulatory Organization’s
                                                furtherance of the purposes of the Act.                 authority.38                                          Statement of the Purpose of, and
                                                If the Commission takes such action, the                Robert W. Errett,                                     Statutory Basis for, the Proposed Rule
                                                Commission shall institute proceedings                  Deputy Secretary.                                     Change
                                                to determine whether the proposed rule                  [FR Doc. 2017–05409 Filed 3–17–17; 8:45 am]
                                                should be approved or disapproved.                                                                            1. Purpose
                                                                                                        BILLING CODE 8011–01–P
                                                IV. Solicitation of Comments                                                                                     Phlx is planning to relocate from its
                                                                                                                                                              current location at 1900 Market Street in
                                                  Interested persons are invited to
                                                                                                        SECURITIES AND EXCHANGE                               Philadelphia, Pennsylvania to a new
                                                submit written data, views, and
                                                                                                        COMMISSION                                            location at FMC Tower, 2929 Walnut
                                                arguments concerning the foregoing,
                                                                                                                                                              Street in Philadelphia, Pennsylvania.
                                                including whether the proposed rule                     [Release No. 34–80243; File No. SR–Phlx–
                                                                                                        2017–23]                                              The relocation is currently scheduled to
                                                change is consistent with the Act.
                                                                                                                                                              occur in April 2017.
                                                Comments may be submitted by any of                                                                              The purpose of this rule change is to
                                                the following methods:                                  Self-Regulatory Organizations;
                                                                                                        NASDAQ PHLX LLC; Notice of Filing                     amend the Second Amended Limited
                                                Electronic Comments                                     and Immediate Effectiveness of                        Liability Company Agreement of
                                                  • Use the Commission’s Internet                       Proposed Rule Change To Amend the                     NASDAQ PHLX LLC as well as Rule 60,
                                                comment form (http://www.sec.gov/                       Address of the Exchange and Its                       entitled ‘‘Sanctions for Breach of
                                                rules/sro.shtml); or                                    Shareholder                                           Regulations’’ to amend the addresses
                                                  • Send an email to rule-comments@                                                                           referenced therein for Phlx. In addition,
                                                                                                        March 14, 2017.                                       the Second Amended Limited Liability
                                                sec.gov. Please include File Number SR–
                                                Phlx–2017–24 on the subject line.                          Pursuant to Section 19(b)(1) of the                Company Agreement lists the address of
                                                                                                        Securities Exchange Act of 1934                       Phlx’s shareholder, Nasdaq, Inc. The
                                                Paper Comments                                          (‘‘Act’’),1 and Rule 19b–4 thereunder,2               Exchange proposes to amend that
                                                   • Send paper comments in triplicate                  notice is hereby given that on March 3,               address as well. The description for
                                                to Secretary, Securities and Exchange                   2017, NASDAQ PHLX LLC (‘‘Phlx’’ or                    each change is below.
                                                Commission, 100 F Street NE.,                           ‘‘Exchange’’) filed with the Securities
                                                                                                        and Exchange Commission                               Change to 1900 Market Street Address
                                                Washington, DC 20549–1090.
                                                All submissions should refer to File                    (‘‘Commission’’) the proposed rule                      As noted above, Phlx will relocate in
                                                Number SR–Phlx–2017–24. This file                       change as described in Items I and II                 April 2017 to a new address at FMC
                                                number should be included on the                        below, which Items have been prepared                 Tower, 2929 Walnut Street in
                                                subject line if email is used. To help the              by the Exchange. The Commission is                    Philadelphia, Pennsylvania. The Second
                                                Commission process and review your                      publishing this notice to solicit                     Amended Limited Liability Company
                                                comments more efficiently, please use                   comments on the proposed rule change                  Agreement and Rule 60 currently
                                                only one method. The Commission will                    from interested persons.                              contain references to Phlx’s current
                                                post all comments on the Commission’s                                                                         address at 1900 Market Street. The
                                                                                                        I. Self-Regulatory Organization’s                     Exchange proposes to amend the Phlx
                                                Internet Web site (http://www.sec.gov/                  Statement of the Terms of Substance of
                                                rules/sro.shtml). Copies of the                                                                               address as of April 1, 2017 to the new
                                                                                                        the Proposed Rule Change                              address at FMC Tower, 2929 Walnut
                                                submission, all subsequent
                                                                                                           The Exchange proposes to amend the                 Street in Philadelphia, Pennsylvania.
                                                amendments, all written statements
                                                                                                        addresses for Phlx and its shareholder,
                                                with respect to the proposed rule                                                                             Change to Nasdaq, Inc. Address
                                                                                                        Nasdaq, Inc.
                                                change that are filed with the                             The text of the proposed rule change                 Nasdaq, Inc., the sole shareholder of
                                                Commission, and all written                             is available on the Exchange’s Web site               Phlx, is currently listed in the Second
                                                communications relating to the                          at http://nasdaqphlx.cchwallstreet.                   Amended Limited Liability Company
                                                proposed rule change between the                        com/, at the principal office of the                  Agreement with an address of 1900
                                                Commission and any person, other than                   Exchange, and at the Commission’s                     Market Street, Philadelphia,
                                                those that may be withheld from the                     Public Reference Room.                                Pennsylvania. At this time the Exchange
                                                public in accordance with the                                                                                 proposes to list the address of its
                                                provisions of 5 U.S.C. 552, will be                     II. Self-Regulatory Organization’s
                                                                                                                                                              shareholder at One Liberty Plaza, New
                                                available for Web site viewing and                      Statement of the Purpose of, and
                                                                                                                                                              York, NY 10006. This address is the
                                                printing in the Commission’s Public                     Statutory Basis for, the Proposed Rule
                                                                                                                                                              headquarters of Nasdaq, Inc.
                                                Reference Room, 100 F Street NE.,                       Change                                                  The Exchange proposes that the Phlx
                                                Washington, DC 20549, on official                          In its filing with the Commission, the             address rule change will become
                                                business days between the hours of                      Exchange included statements                          operative on April 1, 2017.
                                                10:00 a.m. and 3:00 p.m. Copies of the                  concerning the purpose of and basis for
                                                filing also will be available for                                                                             2. Statutory Basis
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                                                                                                        the proposed rule change and discussed
                                                inspection and copying at the principal                 any comments it received on the                          The Exchange believes that its
                                                office of the Exchange. All comments                    proposed rule change. The text of these               proposal is consistent with Section 6(b)
                                                received will be posted without change;                 statements may be examined at the                     of the Act,3 in general, and furthers the
                                                the Commission does not edit personal                                                                         objectives of Section 6(b)(5) of the Act,4
                                                identifying information from                              38 17 CFR 200.30–3(a)(12).
                                                submissions. You should submit only                       1 15 U.S.C. 78s(b)(1).                                3 15   U.S.C. 78f(b).
                                                information that you wish to make                         2 17 CFR 240.19b–4.                                   4 15   U.S.C. 78f(b)(5).



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Document Created: 2017-03-18 01:11:19
Document Modified: 2017-03-18 01:11:19
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation82 FR 14388 

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