Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”), and Rule 19b-4 thereunder, notice is hereby given that on March 31, 2010, NASDAQ OMX PHLX, Inc. (“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.
I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change
The Exchange proposes to adopt fees for a new type of participant called “professional.” 
While changes to the Exchange's Fee Schedule pursuant to this proposal are effective upon filing, the Exchange has designated this proposal to be operative on April 1, 2010.
The text of the proposed rule change is available on the Exchange's Web site at http://nasdaqtrader.com/micro.aspx?id=PHLXfilings, at the principal office of the Exchange, at the Commission's Public Reference Room, and on the Commission's Web site at http://www.sec.gov.
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
The purpose of the proposed rule change is to adopt a new category of fees, “professional.” The Exchange believes that the proposed fees for professional orders will allow the Exchange to remain competitive with other options exchanges who apply fees to professional orders.
The Exchange defines a “professional” as any person or entity that (i) is not a broker or dealer in securities, and (ii) places more than 390 orders in listed options per day on average during a calendar month for its own beneficial account(s)  (hereinafter “Professional”).
The Exchange proposes to add a “Professional” fee to its fees and rebates for adding and removing liquidity, known as a “maker/taker” model by amending Category I of its Fee Schedule, Fees and Rebates for Adding and Removing Liquidity in Select Symbols, to adopt a $0.20 rebate for adding liquidity and a $0.40 fee for removing liquidity for Professional orders. There are currently five categories of participants in Category I: (i) Specialists, Registered Options Traders (“ROTs”), Streaming Quote Traders (“SQTs”)  and Remote Streaming Quote Traders (“RSQTs”);  (ii) customers; (iii) specialists, SQTs and RSQTs that receive Directed Orders (“Directed Participants” or “Directed Specialists, RSQTs or SQTs”);  Start Printed Page 21376(iv) firms; and (v) broker-dealers. The Professional category would be an addition to these existing categories.
The current version of Category I of the Fee Schedule, with the addition of the proposed Professional fee, follows below.
|Customer||Directed participant||Specialist, ROT, SQT and RSQT||Firm||Broker-dealer||Professional|
|Rebate for Adding Liquidity||$0.20||$0.25||$0.23||$0.00||$0.00||$0.20|
|Fee for Adding Liquidity||0.00||0.00||0.00||0.45||0.45||0.00|
|Fee for Removing Liquidity||0.25||0.30||0.32||0.45||0.45||0.40|
2. Statutory Basis
The Exchange believes that its proposal to amend its schedule of fees is consistent with Section 6(b) of the Act  in general, and furthers the objectives of Section 6(b)(4) of the Act  in particular, in that it is an equitable allocation of reasonable fees and other charges among Exchange members. The Exchange believes that adding Professional fees to the Fees and Rebates for Adding and Removing Liquidity in Select Symbols is fair and reasonable, because the proposed fees are similar to the transaction fees applicable to fees assessed by other options exchanges; professional orders will be offered a rebate of $0.20 per contract for adding liquidity and assessed a fee of $0.40 per contract similar to the rebates and fees assessed by NYSE Arca for customers and broker-dealers ($.25 and $.45, respectively).
The impact of the proposal upon the net fees paid by a particular market participant will depend on a number of variables, most important of which will be its propensity to add or remove liquidity in the underlying symbols. The Exchange operates in a highly competitive market in which market participants can readily direct order flow to another exchange if they deem fee levels at a particular exchange to be excessive. The Exchange believes that the proposed fees it charges for options overlying the various symbols remain competitive with fees charged by other exchanges and, therefore, continue to be reasonable and equitably allocated to those members that opt to direct orders to the Exchange rather than to a competing exchange.
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.
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  and paragraph (f)(2) of Rule 19b-4  thereunder. At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate 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.
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:
- Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
- Send an e-mail to firstname.lastname@example.org. Please include File Number SR-Phlx-2010-51 on the subject line.
- 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-Phlx-2010-51. 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 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 a.m. and 3 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-2010-51 and should be submitted on or before May 14, 2010.Start Signature
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.14
Elizabeth M. Murphy,
3. See Securities Exchange Act Release No. 61802 (March 30, 2010) (SR-Phlx-2010-05).Back to Citation
4. A Professional will be treated in the same manner as an off-floor broker-dealer for purposes of Rules 1014(g)(except with respect to all-or-none orders, which will be treated like customer orders), 1033(e), 1064.02 (except professional orders will be considered customer orders subject to facilitation), and 1080.08 as well as Options Floor Procedure Advices B-6, B-11 and F-5. Member organizations must indicate whether orders are for professionals.Back to Citation
5. An SQT is an Exchange Registered Options Trader (“ROT”) who has received permission from the Exchange to generate and submit option quotations electronically through an electronic interface with AUTOM via an Exchange approved proprietary electronic quoting device in eligible options to which such SQT is assigned. See Exchange Rule 1014(b)(ii)(A).Back to Citation
6. An RSQT is an ROT that is a member or member organization with no physical trading floor presence who has received permission from the Exchange to generate and submit option quotations electronically through AUTOM in eligible options to which such RSQT has been assigned. An RSQT may only submit such quotations electronically from off the floor of the Exchange. See Exchange Rule 1014(b)(ii)(B).Back to Citation
7. This applies to all customer orders, directed and non-directed.Back to Citation
8. See Exchange Rule 1080(l), “* * * The term `Directed Specialist, RSQT, or SQT' means a specialist, RSQT, or SQT that receives a Directed Order.” A Directed Participant has a higher quoting requirement as compared with a specialist, SQT or RSQT who is not acting as a Directed Participant. See Exchange Rule 1014.Back to Citation
11. See NYSE Arca General Options and Trading Permit (OTP) Fees.Back to Citation
[FR Doc. 2010-9399 Filed 4-22-10; 8:45 am]
BILLING CODE 8011-01-P