Self-Regulatory Organizations; National Association of Securities Dealers, Inc.; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change To Modify the Pricing for Non-Members Using Nasdaq's Brut Facility, 75231-75233 [E5-7482]

Download as PDF Federal Register / Vol. 70, No. 242 / Monday, December 19, 2005 / Notices 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 NASD. 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–NASD–2005–137 and should be submitted on or before January 9, 2006. For the Commission, by the Division of Market Regulation, pursuant to delegated authority.15 Jonathan G. Katz, Secretary. [FR Doc. E5–7481 Filed 12–16–05; 8:45 am] BILLING CODE 8010–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–52938; File No. SR–NASD– 2005–138] Self-Regulatory Organizations; National Association of Securities Dealers, Inc.; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change To Modify the Pricing for Non-Members Using Nasdaq’s Brut Facility December 9, 2005. 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 22, 2005, the National Association of Securities Dealers, Inc. (‘‘NASD’’), through its subsidiary, The Nasdaq Stock Market, Inc. (‘‘Nasdaq’’), 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 Nasdaq. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons, and at the same time is granting accelerated approval of the proposed rule change. 15 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 1 15 VerDate Aug<31>2005 18:59 Dec 16, 2005 Jkt 208001 I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change Nasdaq proposes to modify the pricing for non-members using Nasdaq’s Brut Facility (‘‘Brut’’). Nasdaq requests approval to implement the proposed rule change retroactively for a pilot period running from December 1, 2005 through December 31, 2005. The text of the proposed rule change is below. Proposed new language is in italics. Proposed deletions are in [brackets]. * * * * * 7010. System Services (a)–(h) No change. (i) Nasdaq Market Center and Brut Facility Order Execution (1)–(5) No change. (6) The fees applicable to nonmembers using Nasdaq’s Brut Facility shall be the fees established for members under Rule 7010(i), as amended by SR–NASD–2005–019, SR– NASD–2005–035, SR–NASD–2005–048, and SR–NASD–2005–071, [and] SR– NASD–2005–125, and SR–NASD–2005– 137, and as applied to non-members by SR–NASD–2005–020, SR–NASD–2005– 038, SR–NASD–2005–049, SR–NASD– 2005–072, [and] SR–NASD–2005–126, and SR–NASD–2005–138. (j)–(v) No change. * * * * * II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, Nasdaq 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 III below. Nasdaq 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–NASD–2005–137, which applies to NASD members, Nasdaq modified its fee schedule for transaction executions in certain stocks listed on markets other than Nasdaq by creating a pilot program under which liquidity providers (i.e., market participants that put quotes or orders that are accessed by incoming orders) may receive a credit of PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 75231 $0.0005 per share executed.3 In this filing, Nasdaq is proposing to apply the same modification to non-NASD members that use Nasdaq’s Brut Facility. Nasdaq currently offers a liquidity provider credit with respect to securities whose primary listing is on Nasdaq, and its credit for transactions in exchangetraded funds (‘‘ETFs’’) listed on the American Stock Exchange (‘‘Amex’’) was recently extended to ETFs listed on other exchanges.4 Nasdaq notes that, with the exception of ETFs, however, such a credit has not been offered with respect to stocks whose primary listing is not on Nasdaq. Nasdaq states that with the enhanced opportunities for electronic trading of non-Nasdaq listed stocks occasioned by market participant demand and upcoming regulatory changes, however, it expects that new competitive opportunities will develop for Nasdaq and other electronic venues. Nasdaq believes that the quality of executions that it can offer in such an environment will depend on the degree to which market participants in a position to provide liquidity opt to do so through Nasdaq. Because the market for executions of these stocks has not yet been subject to vigorous competition, and because the balance between the cost of providing credits and the revenue growth associated with increased liquidity provision has therefore not been tested in a fully competitive environment, Nasdaq believes that a pilot program, consisting of a modest $0.0005 per share credit paid with respect to a limited number of stocks, would allow an assessment of the costs and benefits of the credit to Nasdaq and its market participants. Nasdaq represents that the forty stocks selected for inclusion in the pilot program 5 are all stocks whose 3 Telephone conversation between John Yetter, Associate General Counsel, Exchange, and David Liu and Michou Nguyen, Attorneys, Division of Market Regulation, Commission, on December 6, 2005. 4 See Securities Exchange Act Release Nos. 52757 (November 9, 2005), 70 FR 69791 (November 17, 2005) (SR–NASD–2005–125); and 52758 (November 9, 2005), 70 FR 69793 (November 17, 2005) (SR– NASD–2005–126). 5 Advanced Micro Devices Inc. (AMD); Apache Corp. (APA); AT&T Corp. (T); Avaya, Inc. (AV); Baker Hughes, Inc. (BHI); BJ Services Co. (BJS); Bristol-Myers Squibb Co. (BMY); Burlington Resources, Inc. (BR); Calpine Corp. (CPN); Charles Schwab Corp. (SCH); Citigroup Inc. (C); ConocoPhillips (COP); Corning Inc. (GLW); Devon Energy Corp. (DVN); EMC Corp. (EMC); Exxon Mobil Corp. (XOM); Ford Motor Co. (F); Gateway, Inc. (GTW); General Electric Co. (GE); Halliburton Co. (HAL); Hewlett-Packard Co. (HPQ); Johnson & Johnson (JNJ); JPMorgan Chase & Co. (JPM); Kohl’s Corp. (KSS); LSI Logic Corp. (LSI); Micron E:\FR\FM\19DEN1.SGM Continued 19DEN1 75232 Federal Register / Vol. 70, No. 242 / Monday, December 19, 2005 / Notices propensity to trade on electronic venues, high daily trading volumes, and large market capitalizations may correlate with a relatively high degree of price elasticity with regard to liquidity provision. Nasdaq plans to run the pilot for a period of at least three months; however, because the authority for this proposal provided by the Nasdaq Board of Directors runs only through December 31, 2005, the pilot period covered by this filing is one month. Upon obtaining Board approval for a longer pilot, which Nasdaq expects to receive in December 2005, Nasdaq plans to file to extend the pilot through February 28, 2006.6 Nasdaq states that, based on information received regarding the trading characteristics of the forty stocks included in the pilot, it would then determine whether to submit a proposed rule change to extend the pilot further, modify the level of the liquidity provider credit, and/or offer a credit with respect to additional stocks. 2. Statutory Basis Nasdaq believes that the proposed rule change is consistent with the provisions of Section 15A of the Act,7 in general, and with Section 15A(b)(5) of the Act,8 in particular, in that the proposed rule change 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 the NASD operates or controls. The proposed rule change applies to non-members that use Nasdaq’s Brut Facility a fee change that is being implemented for NASD members that use the Nasdaq Market Center and/or Nasdaq’s Brut Facility. Accordingly, Nasdaq believes that the proposed rule change promotes an equitable allocation of fees between members and non-members using Nasdaq’s order execution facilities. Nasdaq believes that the proposed change will institute a liquidity provider credit available to all market participants that opt to provide liquidity through Nasdaq or Brut to support Technology, Inc. (MU); Motorola, Inc. (MOT); Noble Corp. (NE); Occidental Petroleum Corp. (OXY); Office Depot Inc. (ODP); Pfizer Inc. (PFE); Phelps Dodge Corp. (PD); Pulte Homes, Inc. (PHM); Qwest Communications International Inc. (Q); Schlumberger Ltd. (SLB); Solectron Corp. (SLR); Sovereign Bancorp, Inc. (SOV); Time Warner, Inc. (TWX); Valero Energy Corp. (VLO); and Verizon Communications, Inc. (VZ). 6 Telephone conversation between John Yetter, Associate General Counsel, Exchange, and Michou Nguyen, Attorney, Division of Market Regulation, Commission, on December 7, 2005. 7 15 U.S.C. 78o–3. 8 15 U.S.C. 78o–3(b)(5). VerDate Aug<31>2005 18:59 Dec 16, 2005 Jkt 208001 executions in any of forty stocks included in the pilot program. B. Self-Regulatory Organization’s Statement on Burden on Competition Nasdaq does not believe that the proposed rule change will result in 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 Nasdaq states that written comments were neither solicited nor received. 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–NASD–2005–138 and should be submitted on or before January 9, 2006. IV. Commission’s Findings and Order Granting Accelerated Approval of Proposed Rule Change The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a self-regulatory III. Solicitation of Comments organization.9 Specifically, the Interested persons are invited to Commission believes that the proposed submit written data, views, and rule change is consistent with Section arguments concerning the foregoing, 15A(b)(5) of the Act,10 which requires including whether the proposed rule that the rules of the self-regulatory change is consistent with the Act. organization provide for the equitable Comments may be submitted by any of allocation of reasonable dues, fees, and the following methods: other charges among members and issuers and other persons using any Electronic Comments facilities or system which it operates or • Use the Commission’s Internet controls. comment form (https://www.sec.gov/ The Commission notes that this rules/sro.shtml); or proposal would retroactively modify • Send an e-mail to rulepricing for non-NASD members using comments@sec.gov. Please include File the Nasdaq’s Brut Facility to be Number SR–NASD–2005–138 on the implemented on a pilot basis running subject line. from December 1, 2005 to December 31, Paper Comments 2005. This proposal would permit the schedule for non-NASD members to • Send paper comments in triplicate mirror the schedule applicable to NASD to Jonathan G. Katz, Secretary, members that became effective Securities and Exchange Commission, November 22, 2005, pursuant to SR– 100 F Street, NE., Washington, DC NASD–2005–137 and that Nasdaq stated 20549–9303. it would implement on a pilot basis All submissions should refer to File from December 1, 2005 to December 31, Number SR–NASD–2005–138. This file 2005. number should be included on the The Commission finds good cause for subject line if e-mail is used. To help the approving the proposed rule change Commission process and review your prior to the 30th day of the date of comments more efficiently, please use only one method. The Commission will publication of the notice thereof in the post all comments on the Commission’s Federal Register. The Commission notes that the proposed fees for non-NASD Internet Web site (https://www.sec.gov/ members are identical to those in SR– rules/sro.shtml). Copies of the NASD–2005–137, which implemented submission, all subsequent those fees for NASD members and amendments, all written statements which became effective as of November with respect to the proposed rule 22, 2005. The Commission notes that change that are filed with the this change will promote consistency in Commission, and all written Nasdaq’s fee schedule by applying the communications relating to the same pricing schedule with the same proposed rule change between the Commission and any person, other than date of effectiveness for both NASD members and non-NASD members. those that may be withheld from the Therefore, the Commission finds that public in accordance with the there is good cause, consistent with provisions of 5 U.S.C. 552, will be Section 19(b)(2) of the Act,11 to approve available for inspection and copying in the Commission’s Public Reference 9 The Commission has considered the Room. Copies of such filing also will be rule’s impact on efficiency, competition proposed and capital available for inspection and copying at formation. 15 U.S.C. 78c(f). 10 15 U.S.C. 78o–3(b)(5). the principal office of the NASD. All 11 15 U.S.C. 78s(b)(2). comments received will be posted PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 E:\FR\FM\19DEN1.SGM 19DEN1 Federal Register / Vol. 70, No. 242 / Monday, December 19, 2005 / Notices the proposed change on an accelerated basis. DEPARTMENT OF STATE DEPARTMENT OF STATE V. Conclusion [Public Notice 5250] [Public Notice 5248] It is therefore ordered, pursuant to Section 19(b)(2) of the Act,12 that the proposed rule change (File No. SR– NASD–2005–138), is approved on an accelerated basis. Determination Pursuant to Section 1(b) of Executive Order 13224 Relating to the Designation of Sajid Mohammed Badat, Also Known as Saajid Badat, Also Known as Muhammed Badat, Also Known as Sajid Muhammad Badat, Also Known as Saajid Mohammad Badet, Also Known as Muhammed Badet, Also Known as Sajid Muhammad Badet, Also Known as Abu Issa al Pakistani, Also Known as Issa, Also Known as Issa Al Britaini, Also Known as Issa Al Pakistani; DOB: 28 March 1979; Alt. DOB: 8 March 1976; POB: Pakistan; Citizenship: British; Passport: 703114075 and 026725401 75233 For the Commission, by the Division of Market Regulation, pursuant to delegated authority.13 Jonathan G. Katz, Secretary. [FR Doc. E5–7482 Filed 12–16–05; 8:45 am] BILLING CODE 8010–01–P DEPARTMENT OF STATE [Public Notice 5249] Determination and Waiver of Section 517(a) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act (2006) (Pub. L. 109–102) Relating to Assistance for the Independent States of the Soviet Union Pursuant to the authority vested in me as Deputy Secretary of State, including by Section 517(a) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2006 (Public Law 109–102), Executive Order 13118 of March 31, 1999, and State Department Delegation of Authority No. 245 of April 21, 2001, I hereby determine that it is in the national security interest of the United States to make available funds appropriated under the heading ‘‘Assistance for the Independent States of the Former Soviet Union’’ in Title II of that Act without regard to the restriction in that section. This determination shall be reported to the Congress promptly and published in the Federal Register. Dated: December 5, 2005. Robert B. Zoellick, Deputy Secretary of State, Department of State. [FR Doc. 05–24276 Filed 12–16–05; 8:45 am] BILLING CODE 4710–23–P 12 15 13 17 Condoleezza Rice, Secretary of State, Department of State. [FR Doc. 05–24262 Filed 12–16–05; 5:00 pm] U.S.C. 78s(b)(2). CFR 200.30–3(a)(12). VerDate Aug<31>2005 18:59 Dec 16, 2005 Acting under the authority of section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13286 of July 2, 2002, and Executive Order 13284 of January 23, 2003, and Executive Order 13372 of February 16, 2005, in consultation with the Secretary of the Treasury, the Attorney General, and the Secretary of Homeland Security, I hereby determine that Sajid Mohammed Badat, aka Saajid Badat, aka Muhammed Badat, aka Sajid Muhammad Badat, aka Saajid Mohammad Badet, aka Muhammed Badet, aka Sajid Muhammad Badet, aka Abu Issa Al Pakistani, aka Issa, aka Issa Al Britaini, aka Issa Al Pakistani has committed and poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals and the national security, foreign policy, or economy of the United States. Consistent with the determination in section 10 of Executive Order 13224 that ‘‘prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectural the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously,’’ I determine that no prior notice need be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order. This notice shall be published in the Federal Register. BILLING CODE 4710–10–U Jkt 208001 PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 Notice of Receipt of Application for a Presidential Permit for Pipeline Facilities To Be Operated and Maintained on the Border of the United States Department of State. Notice. AGENCY: ACTION: Notice is hereby given that the Department of State has received an application from PMC (Nova Scotia) Company (‘‘PMC Nova Scotia’’) for itself, and on behalf of Plains Marketing Canada L.P. (both Canadian companies), for a Presidential permit, pursuant to Executive Order 11423 of August 16, 1968, as amended by Executive Order 12847 of May 17, 1993 and Executive Order 13284 of January 23, 2003, to operate and maintain the Milk River Pipeline crossing the U.S.-Canada border. The Murphy Oil Corporation had a Presidential permit to construct, operate and maintain this oil pipeline, but the pipeline was acquired in May, 2001 by PMC Nova Scotia, for itself and on behalf of Plains Marketing Canada, L.P. PMC Nova Scotia and Plains Marketing Canada are direct subsidiaries of Plains All American Pipeline, L.P., of Texas, U.S.A. The existing pipeline originates in Toole County, Montana, and runs to the international boundary between the U.S. and Canada, then connects to similar facilities in the Province of Alberta, Canada. PMC Nova Scotia has, in written correspondence to the Department of State, committed to abide by the relevant terms and conditions of the permit previously held by Murphy Oil. Further, PMC Nova Scotia indicated in that correspondence that the operation of the pipeline will remain essentially unchanged from that previously permitted. Therefore, in accordance with 22 CFR 161.7(b)(3) and the Department’s Procedures for Issuance of a Presidential Permit Where There Has Been a Transfer of the Underlying Facility, Bridge or Border Crossing for Land Transportation (70 FR 30990, May 31, 2005), the Department of State does not intend to conduct an environmental review of the application unless information is brought to its attention that the transfer potentially would have a significant impact on the quality of the human environment. As required by E.O. 13337, the Department of State is circulating this application to concerned federal agencies for comment. E:\FR\FM\19DEN1.SGM 19DEN1

Agencies

[Federal Register Volume 70, Number 242 (Monday, December 19, 2005)]
[Notices]
[Pages 75231-75233]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E5-7482]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-52938; File No. SR-NASD-2005-138]


Self-Regulatory Organizations; National Association of Securities 
Dealers, Inc.; Notice of Filing and Order Granting Accelerated Approval 
of Proposed Rule Change To Modify the Pricing for Non-Members Using 
Nasdaq's Brut Facility

December 9, 2005.
    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 22, 2005, the National Association of Securities Dealers, 
Inc. (``NASD''), through its subsidiary, The Nasdaq Stock Market, Inc. 
(``Nasdaq''), 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 Nasdaq. The Commission is 
publishing this notice to solicit comments on the proposed rule change 
from interested persons, and at the same time is granting accelerated 
approval of the proposed rule change.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    Nasdaq proposes to modify the pricing for non-members using 
Nasdaq's Brut Facility (``Brut''). Nasdaq requests approval to 
implement the proposed rule change retroactively for a pilot period 
running from December 1, 2005 through December 31, 2005. The text of 
the proposed rule change is below. Proposed new language is in italics. 
Proposed deletions are in [brackets].
* * * * *

7010. System Services

    (a)-(h) No change.
    (i) Nasdaq Market Center and Brut Facility Order Execution
    (1)-(5) No change.
    (6) The fees applicable to non-members using Nasdaq's Brut Facility 
shall be the fees established for members under Rule 7010(i), as 
amended by SR-NASD-2005-019, SR-NASD-2005-035, SR-NASD-2005-048, and 
SR-NASD-2005-071, [and] SR-NASD-2005-125, and SR-NASD-2005-137, and as 
applied to non-members by SR-NASD-2005-020, SR-NASD-2005-038, SR-NASD-
2005-049, SR-NASD-2005-072, [and] SR-NASD-2005-126, and SR-NASD-2005-
138.
    (j)-(v) No change.
* * * * *

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

    In its filing with the Commission, Nasdaq 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 III below. Nasdaq 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-NASD-2005-137, which applies to NASD members, Nasdaq modified 
its fee schedule for transaction executions in certain stocks listed on 
markets other than Nasdaq by creating a pilot program under which 
liquidity providers (i.e., market participants that put quotes or 
orders that are accessed by incoming orders) may receive a credit of 
$0.0005 per share executed.\3\ In this filing, Nasdaq is proposing to 
apply the same modification to non-NASD members that use Nasdaq's Brut 
Facility.
---------------------------------------------------------------------------

    \3\ Telephone conversation between John Yetter, Associate 
General Counsel, Exchange, and David Liu and Michou Nguyen, 
Attorneys, Division of Market Regulation, Commission, on December 6, 
2005.
---------------------------------------------------------------------------

    Nasdaq currently offers a liquidity provider credit with respect to 
securities whose primary listing is on Nasdaq, and its credit for 
transactions in exchange-traded funds (``ETFs'') listed on the American 
Stock Exchange (``Amex'') was recently extended to ETFs listed on other 
exchanges.\4\ Nasdaq notes that, with the exception of ETFs, however, 
such a credit has not been offered with respect to stocks whose primary 
listing is not on Nasdaq.
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release Nos. 52757 (November 9, 
2005), 70 FR 69791 (November 17, 2005) (SR-NASD-2005-125); and 52758 
(November 9, 2005), 70 FR 69793 (November 17, 2005) (SR-NASD-2005-
126).
---------------------------------------------------------------------------

    Nasdaq states that with the enhanced opportunities for electronic 
trading of non-Nasdaq listed stocks occasioned by market participant 
demand and upcoming regulatory changes, however, it expects that new 
competitive opportunities will develop for Nasdaq and other electronic 
venues. Nasdaq believes that the quality of executions that it can 
offer in such an environment will depend on the degree to which market 
participants in a position to provide liquidity opt to do so through 
Nasdaq. Because the market for executions of these stocks has not yet 
been subject to vigorous competition, and because the balance between 
the cost of providing credits and the revenue growth associated with 
increased liquidity provision has therefore not been tested in a fully 
competitive environment, Nasdaq believes that a pilot program, 
consisting of a modest $0.0005 per share credit paid with respect to a 
limited number of stocks, would allow an assessment of the costs and 
benefits of the credit to Nasdaq and its market participants. Nasdaq 
represents that the forty stocks selected for inclusion in the pilot 
program \5\ are all stocks whose

[[Page 75232]]

propensity to trade on electronic venues, high daily trading volumes, 
and large market capitalizations may correlate with a relatively high 
degree of price elasticity with regard to liquidity provision.
---------------------------------------------------------------------------

    \5\ Advanced Micro Devices Inc. (AMD); Apache Corp. (APA); AT&T 
Corp. (T); Avaya, Inc. (AV); Baker Hughes, Inc. (BHI); BJ Services 
Co. (BJS); Bristol-Myers Squibb Co. (BMY); Burlington Resources, 
Inc. (BR); Calpine Corp. (CPN); Charles Schwab Corp. (SCH); 
Citigroup Inc. (C); ConocoPhillips (COP); Corning Inc. (GLW); Devon 
Energy Corp. (DVN); EMC Corp. (EMC); Exxon Mobil Corp. (XOM); Ford 
Motor Co. (F); Gateway, Inc. (GTW); General Electric Co. (GE); 
Halliburton Co. (HAL); Hewlett-Packard Co. (HPQ); Johnson & Johnson 
(JNJ); JPMorgan Chase & Co. (JPM); Kohl's Corp. (KSS); LSI Logic 
Corp. (LSI); Micron Technology, Inc. (MU); Motorola, Inc. (MOT); 
Noble Corp. (NE); Occidental Petroleum Corp. (OXY); Office Depot 
Inc. (ODP); Pfizer Inc. (PFE); Phelps Dodge Corp. (PD); Pulte Homes, 
Inc. (PHM); Qwest Communications International Inc. (Q); 
Schlumberger Ltd. (SLB); Solectron Corp. (SLR); Sovereign Bancorp, 
Inc. (SOV); Time Warner, Inc. (TWX); Valero Energy Corp. (VLO); and 
Verizon Communications, Inc. (VZ).
---------------------------------------------------------------------------

    Nasdaq plans to run the pilot for a period of at least three 
months; however, because the authority for this proposal provided by 
the Nasdaq Board of Directors runs only through December 31, 2005, the 
pilot period covered by this filing is one month. Upon obtaining Board 
approval for a longer pilot, which Nasdaq expects to receive in 
December 2005, Nasdaq plans to file to extend the pilot through 
February 28, 2006.\6\ Nasdaq states that, based on information received 
regarding the trading characteristics of the forty stocks included in 
the pilot, it would then determine whether to submit a proposed rule 
change to extend the pilot further, modify the level of the liquidity 
provider credit, and/or offer a credit with respect to additional 
stocks.
---------------------------------------------------------------------------

    \6\ Telephone conversation between John Yetter, Associate 
General Counsel, Exchange, and Michou Nguyen, Attorney, Division of 
Market Regulation, Commission, on December 7, 2005.
---------------------------------------------------------------------------

2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with 
the provisions of Section 15A of the Act,\7\ in general, and with 
Section 15A(b)(5) of the Act,\8\ in particular, in that the proposed 
rule change 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 the NASD operates or controls. The 
proposed rule change applies to non-members that use Nasdaq's Brut 
Facility a fee change that is being implemented for NASD members that 
use the Nasdaq Market Center and/or Nasdaq's Brut Facility. 
Accordingly, Nasdaq believes that the proposed rule change promotes an 
equitable allocation of fees between members and non-members using 
Nasdaq's order execution facilities. Nasdaq believes that the proposed 
change will institute a liquidity provider credit available to all 
market participants that opt to provide liquidity through Nasdaq or 
Brut to support executions in any of forty stocks included in the pilot 
program.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78o-3.
    \8\ 15 U.S.C. 78o-3(b)(5).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    Nasdaq does not believe that the proposed rule change will result 
in 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

    Nasdaq states that written comments were neither solicited nor 
received.

III. 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 (https://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to rule-comments@sec.gov. Please include 
File Number SR-NASD-2005-138 on the subject line.

Paper Comments

     Send paper comments in triplicate to Jonathan G. Katz, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-9303.

All submissions should refer to File Number SR-NASD-2005-138. 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 (https://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 NASD. 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-NASD-2005-138 and should be submitted on or before 
January 9, 2006.

IV. Commission's Findings and Order Granting Accelerated Approval of 
Proposed Rule Change

    The Commission finds that the proposed rule change is consistent 
with the requirements of the Act and the rules and regulations 
thereunder applicable to a self-regulatory organization.\9\ 
Specifically, the Commission believes that the proposed rule change is 
consistent with Section 15A(b)(5) of the Act,\10\ which requires that 
the rules of the self-regulatory organization provide for the equitable 
allocation of reasonable dues, fees, and other charges among members 
and issuers and other persons using any facilities or system which it 
operates or controls.
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    \9\ The Commission has considered the proposed rule's impact on 
efficiency, competition and capital formation. 15 U.S.C. 78c(f).
    \10\ 15 U.S.C. 78o-3(b)(5).
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    The Commission notes that this proposal would retroactively modify 
pricing for non-NASD members using the Nasdaq's Brut Facility to be 
implemented on a pilot basis running from December 1, 2005 to December 
31, 2005. This proposal would permit the schedule for non-NASD members 
to mirror the schedule applicable to NASD members that became effective 
November 22, 2005, pursuant to SR-NASD-2005-137 and that Nasdaq stated 
it would implement on a pilot basis from December 1, 2005 to December 
31, 2005.
    The Commission finds good cause for approving the proposed rule 
change prior to the 30th day of the date of publication of the notice 
thereof in the Federal Register. The Commission notes that the proposed 
fees for non-NASD members are identical to those in SR-NASD-2005-137, 
which implemented those fees for NASD members and which became 
effective as of November 22, 2005. The Commission notes that this 
change will promote consistency in Nasdaq's fee schedule by applying 
the same pricing schedule with the same date of effectiveness for both 
NASD members and non-NASD members. Therefore, the Commission finds that 
there is good cause, consistent with Section 19(b)(2) of the Act,\11\ 
to approve

[[Page 75233]]

the proposed change on an accelerated basis.
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    \11\ 15 U.S.C. 78s(b)(2).
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V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\12\ that the proposed rule change (File No. SR-NASD-2005-138), is 
approved on an accelerated basis.
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    \12\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\13\
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    \13\ 17 CFR 200.30-3(a)(12).
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Jonathan G. Katz,
Secretary.
[FR Doc. E5-7482 Filed 12-16-05; 8:45 am]
BILLING CODE 8010-01-P
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