[Federal Register Volume 75, Number 218 (Friday, November 12, 2010)]
[Notices]
[Pages 69492-69493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28541]
[[Page 69492]]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-63259; File No. SR-BX-2010-075]
Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend the
Fees Assessed for Use of the Testing Facility
November 5, 2010.
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 October 29, 2010, NASDAQ OMX BX, Inc. (``BX''), filed with the
Securities and Exchange Commission (``Commission'') the proposed rule
change as described in Items I, II, and III below, which Items have
been prepared by BX. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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BX proposes to amend the fees assessed for use of the Testing
Facility. BX will implement the proposed rule change on November 1,
2010.
The text of the proposed rule change is below. Proposed new
language is italicized; proposed deletions are in brackets.
* * * * *
7030. Other Services
(a)-(c) No change.
(d) Testing Facility
(1) Subscribers that conduct tests of their Exchange access
protocols connection or market data vendor feeds through the Exchange's
Testing Facility (Testing Facility) shall pay $300 per port, per
month.[the following charges:
$285/hour--For Active Connection testing using current Exchange access
protocols during the normal operating hours of the Testing Facility;
No Charge--For Idle Connection testing using current Exchange access
protocols;
$333/hour--For Active Connection testing using current Exchange access
protocols at all times other than the normal operating hours of the
Testing Facility.]
(2) No change.
(3) The foregoing [hourly] fees shall not apply to [market data
vendor feed testing, or] testing occasioned by:
(A) New or enhanced services and/or software provided by the
Exchange;
(B) Modifications to software and/or services initiated by the
Exchange in response to a contingency; or
(C) Testing by a subscriber of an Exchange service that the
subscriber has not used previously, except if more than 30 days have
elapsed since the subscriber commenced the testing of such Exchange
service.
* * * * *
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, BX 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. BX 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
BX proposes to amend the fees assessed for use of the Testing
Facility. The Testing Facility provides subscribers with a virtual BX
System test environment that closely approximates the production
environment, on which they may test their automated systems that
integrate with BX. Subscribers may test upcoming BX releases and
product enhancements, as well as test software prior to implementation.
Currently, BX assesses a fee of $285 per hour for active connection
testing using current BX access protocols during the normal operating
hours, and $333 per hour for such testing after hours.
BX does not currently assess a fee for idle test ports. Subscribers
often have test ports assigned to them through which no testing is
conducted for extended periods, yet BX must maintain and constantly
monitor these idle testing ports for purposes of billing under the
current rule. Such monitoring represents a cost to BX with no off-
setting fee. Further, subscribers have no incentive to notify BX when
they have completed testing and no longer require a test port.
Accordingly, BX is proposing to eliminate the current hourly fee
structure and assess a flat fee of $300 per test port, per month. This
fee will cover the cost of maintaining these test ports and provide an
incentive to firms to cancel test ports when they have completed
testing.
BX notes that it will continue to allow new subscribers and
existing subscribers to test new services and modifications initiated
by BX, and to test new services not previously accessed for the first
30 days at no cost pursuant to Rule 7030(d)(3). This 30-day fee waiver
includes testing for subscribers that are accessing BX through a
service bureau for the first time. Subscribers must cancel the test
port prior to the expiration of the 30-day free period in order to
avoid future charges for test ports under the new rule. In addition,
current subscribers will be able to cancel their idle ports at no cost
at any point during the first month that the fee is effective. Further,
BX is eliminating the word ``hourly'' from Rule 7030(d)(3), since the
fees for the Testing Facility no longer include hourly fees. Last, BX
is eliminating from Rule 7030(d)(3) language concerning market data
feed testing, since it is superfluous given that the rule already
references fees that include such testing.
2. Statutory Basis
BX believes that the proposed rule change is consistent with the
provisions of Section 6 of the Act,\3\ in general, and with Section
6(b)(4) of the Act,\4\ in particular, in that it provides for the
equitable allocation of reasonable dues, fees and other charges among
members and issuers and other persons using any facility or system
which BX operates or controls. The amended fee schedule applies to all
subscribers equally based on the number of test ports subscribed. This
proposed charge would apply to both members that obtain test ports for
direct access and non-member service bureaus that act as a conduit for
orders entered by BX members that are their customers. The proposed
fees will cover the costs associated with separately offering the
service, responding to customer requests, configuring BX's systems,
programming to user specifications, and administering the service,
among other things, and may provide BX with a profit to the extent
costs are covered. BX believes that the proposed fee structure strikes
a balance between covering these costs, and providing incentives to
subscribers to make efficient use of Test Facility ports.
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\3\ 15 U.S.C. 78f.
\4\ 15 U.S.C. 78f(b)(4).
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B. Self-Regulatory Organization's Statement on Burden on Competition
BX does not believe that the proposed rule change will result in
any burden on
[[Page 69493]]
competition that is not necessary or appropriate in furtherance of the
purposes of the Act, as amended.
C. Self-Regulatory Organization's Statement on Comments Regarding the
Proposed Rule Change Received From Members, Participants or Others
Written comments were neither solicited nor 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 \5\ and subparagraph (f)(2) of Rule 19b-4
thereunder.\6\ 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 necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.
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\5\ 15 U.S.C. 78s(b)(3)(a)(ii).
\6\ 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 e-mail to [email protected]. Please include
File Number SR-BX-2010-075 on the subject line.
Paper Comments
Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-BX-2010-075. This file
number should be included on the subject line if e-mail 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 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 a.m. and 3
p.m. Copies of such 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 publicly available. All submissions
should refer to File Number SR-BX-2010-075 and should be submitted on
or before December 3, 2010.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\7\
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\7\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-28541 Filed 11-10-10; 8:45 am]
BILLING CODE 8011-01-P