82 FR 58670 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Clarify the Application of the Crossing Fee Cap

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 82, Issue 238 (December 13, 2017)

[Federal Register Volume 82, Number 238 (Wednesday, December 13, 2017)]
[Notices]
[Pages 58670-58671]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-26820]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-82229; File No. SR-ISE-2017-95]


Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Clarify the 
Application of the Crossing Fee Cap

December 7, 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 November 28, 2017, Nasdaq ISE, LLC (``ISE'' or ``Exchange'') filed 
with the Securities and Exchange Commission (``Commission'') the 
proposed rule change as described in Items I and II below, which Items 
have been prepared by the Exchange. The Commission is publishing this 
notice to solicit comments on the proposed rule change from interested 
persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend the Exchange's Schedule of Fees to 
clarify the application of the Crossing Fee Cap.
    The text of the proposed rule change is available on the Exchange's 
website at http://ise.cchwallstreet.com/, at the principal office of 
the Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The Exchange has prepared summaries, set forth in 
sections A, B, and C below, of the most significant aspects of such 
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The purpose of the proposed rule change is to provide greater 
clarity as to the manner in which the Exchange applies the Crossing Fee 
Cap.
    By way of background, Crossing Orders are contracts that are 
submitted as part of a Facilitation, Solicitation, PIM, Block or QCC 
Order. Crossing Order fees are capped at $90,000 per month per member 
on all Firm Proprietary and Non-Nasdaq ISE Market Maker transactions 
that are part of the originating or contra side of a Crossing Order.\3\ 
The following fees are not included in the calculation of the monthly 
Crossing Fee Cap: (1) Fees for Responses to Crossing Orders; (2) 
surcharge fees for licensed products and the fees for index options as 
set forth in Section I; and (3) service fee.\4\ The manner in which the 
Exchange calculates the Crossing Fee Cap is not changing.
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    \3\ Members that elect prior to the start of the month to pay 
$65,000 per month will have these crossing fees capped at that level 
instead. All eligible volume from affiliated Members is aggregated 
for purposes of the Crossing Fee Cap, provided there is at least 75% 
common ownership between the Members as reflected on each Member's 
Form BD, Schedule A.
    \4\ A service fee of $0.00 per side applies to all order types 
that are eligible for the fee cap. The service fee does not apply 
once a Member reaches the fee cap level and does apply to every 
contract side above the fee cap. A Member who does not reach the 
monthly fee cap will not be charged the service fee. Once the fee 
cap is reached, the service fee applies to eligible Firm Proprietary 
and Non-Nasdaq ISE market Maker orders in all Nasdaq ISE products. 
The service fee is not calculated in reaching the cap.
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    The Exchange proposes to make clear how it attributes eligible 
volume for purposes of the Crossing Fee Cap. The Exchange proposes to 
add the following language to the rule text, ``For purposes of the 
Crossing Fee Cap the Exchange will attribute eligible volume to the ISE 
Member on whose behalf the Crossing Order was executed.'' Only ISE 
Members are subject to the Crossing Fee Cap. This is the manner in 
which the Exchange attributes eligible volume for purposes of the 
Crossing Fee Cap today. To provide greater transparency to the Schedule 
of Fees, the Exchange proposes to include this language in the rule 
text. While the Exchange is not aware of any confusion with respect to 
this fee with its Members, the Exchange believes this specificity will 
avoid any confusion.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\5\ in general, and furthers the objectives of Sections 
6(b)(4) and 6(b)(5) of the Act,\6\ 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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    \5\ 15 U.S.C. 78f(b).
    \6\ 15 U.S.C. 78f(b)(4) and (5).
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    The Exchange's proposal to add the clarifying language regarding 
the Crossing Fee Cap to the Schedule of Fees is reasonable because the 
proposed rule text will bring greater clarity to the manner in which 
the Exchange attributes eligible volume for purposes of the Crossing 
Fee Cap today and applies the Crossing Fee Cap. The calculation and the 
application of the Crossing Fee Cap are not changing with this 
proposal. This rule text is intended to provide additional clarity to 
the current rule to describe who benefits from the volume for purposes 
of the application of the cap.
    The Exchange's proposal to add the clarifying language regarding 
the Crossing Fee Cap to the Schedule of Fees is equitable and not 
unfairly discriminatory because the Exchange

[[Page 58671]]

will continue to calculate and apply the Crossing Fee Cap in a uniform 
manner to all ISE Members that are eligible for this cap.

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. The proposal is intended to 
provide greater transparency to the Schedule of Fees and does not amend 
the current manner in which the Exchange calculates or applies the 
Crossing Fee Cap. The Exchange's proposal to add the clarifying 
language regarding the Crossing Fee Cap to the Schedule of Fees does 
not impose an undue burden on competition because the Exchange will 
continue to calculate and apply the Crossing Fee Cap in a uniform 
manner to all ISE Members that are eligible for this cap.

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,\7\ and Rule 19b-4(f)(2) \8\ thereunder. At 
any time within 60 days of the filing of the proposed rule change, the 
Commission summarily may temporarily suspend such rule change if it 
appears to the Commission that such action is: (i) Necessary or 
appropriate in the public interest; (ii) for the protection of 
investors; or (iii) otherwise in furtherance of the purposes of the 
Act. If the Commission takes such action, the Commission shall 
institute proceedings to determine whether the proposed rule should be 
approved or disapproved.
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    \7\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \8\ 17 CFR 240.19b-4(f)(2).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-ISE-2017-95 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-ISE-2017-95. 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 website (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 website 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. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-ISE-2017-95 and should be submitted on 
or before January 3, 2018.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\9\
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    \9\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-26820 Filed 12-12-17; 8:45 am]
BILLING CODE 8011-01-P