

[Federal Register: February 12, 2007 (Volume 72, Number 28)]
[Notices]               
[Page 6631-6632]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12fe07-126]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55234; File No. SR-ISE-2006-79]

 
Self-Regulatory Organizations; International Securities Exchange, 
LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule 
Change as Modified by Amendment No. 1 Thereto Relating to a Fee Refund

February 2, 2007.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on December 22, 2006, the International Securities Exchange, 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 substantially prepared by 
the ISE. On February 1, 2007, the ISE filed Amendment No. 1 to the 
proposed rule change.\3\ The Commission is publishing this notice to 
solicit comments on the proposed rule change, as amended, from 
interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ In Amendment No. 1, ISE converted the original proposed rule 
change from a proposal filed pursuant to Section 19(b)(3)(A)(ii) of 
the Act and Rule 19b-4(f)(2) thereunder to a ``non-controversial'' 
proposal filed pursuant to Section 19(b)(3)(A) of the Act and Rule 
19b-4(f)(6) thereunder, and requested waiver of the 30-day pre-
operative delay and pre-filing notice requirement for ``non-
controversial'' proposals.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The ISE is proposing to refund surcharge fees collected for 
transactions in options on Standard & Poor's (``S&P'') Depository 
Receipts[supreg], SPDRs[supreg] (ticker: SPY). The text of the proposed 
rule change is available at the ISE, the Commission's Public Reference 
Room, and http://www.iseoptions.com.\4\

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    \4\ The refund announcement is available on the Exchange's Web 
site at http://www.iseoptions.com/legal/fee_notice.asp.

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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 ISE 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 ISE 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
    In SR-ISE-2005-06, the Exchange adopted a $0.10 per contract 
surcharge fee for transactions in options on SPDRs.\5\ In that filing, 
the Exchange represented that a lawsuit between the Exchange and S&P 
involving the surcharge fee on SPY, if resolved by the courts in ISE's 
favor, could result in a refund of the license fee ISE paid to S&P for 
transactions in SPY and, upon any refund of the surcharge fee by S&P to 
ISE, the Exchange would submit a rule filing to the Commission to 
document the reimbursement of the surcharge fees paid by members to 
ISE.\6\ In SR-ISE-2006-60, the Exchange repealed the $0.10 per contract 
surcharge fee for transactions in options on SPDRs.\7\ The Exchange 
recently received a refund of the surcharge fees, plus interest, from 
S&P and proposes to refund the surcharge fees to its members. 
Accordingly, the Exchange is submitting this rule filing to reflect 
that it is returning to each member (both current and former) its pro-
rata share of the refunded amount (including interest),

[[Page 6632]]

which represents the actual amount of surcharge fees paid by the 
member, plus interest, less its pro-rata share of the Exchange's legal 
costs in connection with obtaining the refund.
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    \5\ See Securities Exchange Act Release No. 51901 (June 22, 
2005), 70 FR 37455 (June 29, 2005).
    \6\ See Amendment No. 1.
    \7\ See Securities Exchange Act Release No. 54589 (October 11, 
2006), 71 FR 61518 (October 18, 2006).
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b)(4) of the Act,\8\ which requires that an exchange 
have an equitable allocation of reasonable dues, fees, and other 
charges among its members and other persons using its facilities.
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    \8\ 15 U.S.C. 78f(b)(4).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange believes that the proposed rule change does not impose 
any burden on competition that is 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

    The Exchange has not solicited, and does not intend to solicit, 
comments on this proposed rule change. The Exchange has not received 
any unsolicited written comments from members or other interested 
parties.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Because the foregoing proposed rule change: (1) Does not 
significantly affect the protection of investors or the public 
interest; (2) Does not impose any significant burden on competition; 
and (3) By its terms does not become operative for 30 days after the 
date of this filing, or such shorter time as the Commission may 
designate if consistent with the protection of investors and the public 
interest, provided that the Exchange has given the Commission written 
notice of its intent to file the proposed rule change at least five 
business days prior to the date of filing of the proposed rule change 
or such shorter time as designated by the Commission, the proposed rule 
change has become effective pursuant to Section 19(b)(3)(A) of the Act 
\9\ and Rule 19b-4(f)(6) thereunder.\10\ The Commission has agreed to 
waive the requirement that the Exchange provide it with written notice 
of its intent to file the proposed rule change, at least five business 
days prior to the date of the filing of the proposed rule change as 
required by Rule 19b-4(f)(6).
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    \9\ 15 U.S.C. 78s(b)(3)(A).
    \10\ 17 CFR 240.19b-4(f)(6).
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    A proposed rule change filed under Rule 19b-4(f)(6) under the Act 
\11\ normally may not become operative prior to 30 days after the date 
of filing. However, Rule 19b-4(f)(6)(iii) under the Act \12\ permits 
the Commission to designate a shorter time if such action is consistent 
with the protection of investors and the public interest. The Exchange 
has requested that the Commission waive the 30-day operative delay, 
which would make the rule change effective and operative upon filing. 
The Commission believes that waiver of the 30-day operative delay is 
consistent with the protection of investors and the public interest 
because the proposed rule change seeks to refund the surcharge fees 
that were previously collected by the Exchange from its members with 
respect to trades in options on SPY.\13\ Further, the Exchange's intent 
to refund those surcharge fees upon a successful resolution of the 
Exchange's lawsuit against S&P was reflected in the proposed rule 
change that initially adopted the surcharge fee on SPY options.
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    \11\ 17 CFR 240.19b-4(f)(6).
    \12\ 17 CFR 240.19b-4(f)(6)(iii).
    \13\ For purposes only of waiving the operative delay for this 
proposal, the Commission has considered the proposed rule's impact 
on efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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    At any time within 60 days of the filing of such 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.\14\
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    \14\ The effective date of the original proposed rule is 
December 22, 2006. The effective date of Amendment No. 1 is February 
1, 2007. For purposes of calculating the 60-day period within which 
the Commission may summarily abrogate the proposed rule change under 
Section 19(b)(3)(C) of the Act, the Commission considers the period 
to commence on February 1, 2007, the date on which the ISE submitted 
Amendment No. 1. See 15 U.S.C. 78s(b)(3)(C).
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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 rule-comments@sec.gov. Please include 

File No. SR-ISE-2006-79 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, Station Place, 100 F 
Street, NE., Washington, DC 20549-1090.
    All submissions should refer to File Number SR-ISE-2006-79. 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 inspection 
and copying in the Commission's Public Reference Room. Copies of such 
filing also will be available for inspection and copying at the 
principal office of the ISE. All comments received will be posted 
without change; the Commission does not edit personal identifying 
information from submissions. You should submit only information that 
you wish to make available publicly. All submissions should refer to 
File Number SR-ISE-2006-79 and should be submitted on or before March 
5, 2007.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-2244 Filed 2-9-07; 8:45 am]

BILLING CODE 8010-01-P
