Self-Regulatory Organizations; NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Consolidating Into a Single Rule Certain Requirements for Products Traded on the Exchange Pursuant to Unlisted Trading Privileges, 7622-7625 [E9-3484]

Download as PDF 7622 Federal Register / Vol. 74, No. 31 / Wednesday, February 18, 2009 / Notices c. Tennessee Valley Authority (Bellefonte Nuclear Power Plant Units 3 and 4), LBP–08–16 (Ruling on Standing, Hearing Petition Timeliness, and Contention Admissibility) (Sept. 12, 2008) (Tentative). d. Detroit Edison Co. (Fermi Unit 3)— Various Procedural Requests (Tentative). Week of February 23, 2009—Tentative There are no meetings scheduled for the week of February 23, 2009. Week of March 2, 2009—Tentative Friday, March 6, 2009 9:30 a.m. Briefing on Guidance for Implementation of Security Rulemaking (Public Meeting) (Contact: Rich Correia, 301–415– 7674). This meeting will be webcast live at the Web address—https://www.nrc.gov. 1:30 p.m. Briefing on Guidance for Implementation of Security Rulemaking (Closed—Ex. 3). Week of March 9, 2009—Tentative There are no meetings scheduled for the week of March 9, 2009. Week of March 16, 2009—Tentative There are no meetings scheduled for the week of March 16, 2009. mstockstill on PROD1PC66 with NOTICES Week of March 23, 2009—Tentative There are no meetings scheduled for the week of March 23, 2009. * * * * * * The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415–1292. Contact person for more information: Rochelle Bavol, (301) 415–1651. * * * * * Additional Information By a vote of 4–0 on February 12, 2009, the Commission determined pursuant to U.S.C. 552b(e) and § 9.107(a) of the Commission’s rules that ’’Affirmation of: d. Detroit Edison Co. (Fermi Unit 3)—Various Procedural Requests (Tentative) be held February 17, 2009, and on less than one week’s notice to the public. * * * * * The NRC Commission Meeting Schedule can be found on the Internet at: https://www.nrc.gov/about-nrc/policymaking/schedule.html. * * * * * The NRC provides reasonable accommodation to individuals with VerDate Nov<24>2008 17:45 Feb 17, 2009 Jkt 217001 disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify the NRC’s Disability Program Coordinator, Rohn Brown, at 301–492–2279, TDD: 301–415–2100, or by e-mail at rohn.brown@nrc.gov. Determinations on requests for reasonable accommodation will be made on a case-by-case basis. * * * * * This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301–415–1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to darlene.wright@nrc.gov. Dated: February 12, 2009. Rochelle C. Bavol, Office of the Secretary. [FR Doc. E9–3489 Filed 2–13–09; 4:15 pm] BILLING CODE 7590–01–P SECURITIES AND EXCHANGE COMMISSION Sunshine Act Meeting Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, February 19, 2009 at 2 p.m. Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present. The Acting General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matters at the Closed Meeting. Commissioner Casey, as duty officer, voted to consider the items listed for the Closed Meeting in closed session. The subject matter of the Closed Meeting scheduled for Thursday, February 19, 2009 will be: Institution and settlement of injunctive actions; PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 Institution and settlement of administrative proceedings of an enforcement nature; Other matters relating to enforcement proceedings. At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact: The Office of the Secretary at (202) 551–5400. Dated: February 12, 2009. J. Lynn Taylor, Assistant Secretary. [FR Doc. E9–3467 Filed 2–17–09; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–59396; File No. SR– NASDAQ–2009–004] Self-Regulatory Organizations; NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Consolidating Into a Single Rule Certain Requirements for Products Traded on the Exchange Pursuant to Unlisted Trading Privileges February 11, 2009. 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 January 30, 2009, NASDAQ Stock Market LLC (‘‘Nasdaq’’ or the ‘‘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 Exchange has designated the proposed rule change as constituting a noncontroversial rule change under Section 19(b)(3)(A) of the Act 3 and Rule 19b– 4(f)(6) thereunder,4 which renders the proposal effective upon filing with the Commission. 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 The Exchange proposes to adopt rules reflecting the requirements for trading products on the Exchange pursuant to 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 15 U.S.C. 78s(b)(3)(A). 4 17 CFR 240.19b–4(f)(6). 2 17 E:\FR\FM\18FEN1.SGM 18FEN1 Federal Register / Vol. 74, No. 31 / Wednesday, February 18, 2009 / Notices unlisted trading privileges (‘‘UTP’’) that have been established in various new product proposal previously approved by the Commission. The text of the proposed rule change is available from Nasdaq’s Web site at https://nasdaq.cchwallstreet.com, at Nasdaq’s principal office, 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 mstockstill on PROD1PC66 with NOTICES 1. Purpose The Exchange proposes to amend its rules to reflect certain requirements for trading products on the Exchange pursuant to UTP that have been established in various new product proposals previously approved by the Commission. The Exchange is amending and moving part of the introductory language of Equity Rule 4420 to become introductory language to Equity Rule 4421 to provide that it may extend UTP to any security that is an NMS Stock (as defined in Rule 600 of Regulation NMS) that is listed on another national securities exchange, as well as to consolidate the UTP concept within the rulebook. Any such security will be subject to all of the Exchange’s trading rules applicable to NMS Stocks, unless otherwise noted, including the provisions of Equity Rules 4120, 4420, 4630, and new Rule 4421 described below. The Exchange will file with the Commission a Form 19b–4(e) with respect to any such security that is a ‘‘new derivative securities product’’ as defined in Rule 19b–4(e) under the Act 5 (defined as a ‘‘UTP Derivative Security’’). In addition, any new derivative securities product traded on the Exchange will be subject to the criteria described below. Proposed Equity Rule 4421(a)(2) provides that the Exchange will 5 17 6 A Member is any registered broker-dealer that has been admitted to membership in the Exchange. CFR 240.19b–4(e). VerDate Nov<24>2008 17:45 Feb 17, 2009 distribute an information circular prior to the commencement of trading in a UTP Derivative Security, which generally will include the same information as the information circular provided by the listing exchange, including: (1) The special risks of trading the UTP Derivative Security; (2) the Rules of the Exchange that will apply to the UTP Derivative Security, including Equity Rule 2310, the Exchange’s suitability rule; (3) information about the dissemination of the value of the underlying assets or indexes; and (4) the applicable trading hours for the UTP Derivative Security and risks of trading during the Exchange’s pre-market session (7 a.m. to 9:30 a.m.) and post-market session (4 p.m. to 8 p.m.) due to the lack of calculation or dissemination of the underlying index value, the intraday indicative value, or a similar value. Proposed Equity Rule 4421(a)(3)(A) reminds Members 6 that they are subject to the prospectus delivery requirements under the Securities Act of 1933, as amended (the ‘‘Securities Act’’), unless a UTP Derivative Security is the subject of an order by the Commission exempting the product from certain prospectus delivery requirements under Section 24(d) of the Investment Company Act of 1940 (the ‘‘1940 Act’’) and the product is not otherwise subject to prospectus delivery requirements under the Securities Act. The Exchange will inform its Members of the application of these provisions to a particular UTP Derivative Security governed by the 1940 Act by means of an information circular. The Exchange is amending Equity Rule 4120(b) to more fully address trading halts in UTP Derivative Securities traded on the Exchange pursuant to UTP. As currently in effect, Rule 4120(b) provides for trading halts of ‘‘Derivative Securities Products,’’ which are defined as a series of Portfolio Depository Receipts, Index Fund Shares, Managed Fund Shares, Trust Issued Receipts, Commodity-Related Securities, or securities representing interests in unit investment trusts or investment companies. Although this definition covers a wide range of products that would be considered UTP Derivative Securities, for the avoidance of doubt, the Exchange is explicitly amending the definition to include all UTP Derivative Securities. The current rule also contains a definition of ‘‘Required Value’’ and provides for trading halts in certain circumstances where a Required Value is not being Jkt 217001 PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 7623 disseminated. Currently, ‘‘Required Value’’ is defined to mean ‘‘(i) The value of any index or any commodity-related value underlying a Derivative Security Product and (ii) the indicative optimized portfolio value, intraday indicative value, or other comparable estimate of the value of a share of a Derivative Securities Product updated regularly during the trading day.’’ The Exchange proposes to amend the definition to also include ‘‘(iii) a net asset value in the case of a Derivative Securities Product for which a net asset value is disseminated, and (iv) a ‘disclosed portfolio’ in the case of a Derivative Securities Product that is a series of managed fund shares or actively managed exchange-traded funds for which a disclosed portfolio is disseminated.’’ Thus, as amended, the rule provides that the Exchange, upon notification by the listing market of a halt due to a temporary interruption in the calculation or wide dissemination of a Required Value for a Derivative Securities Product, will immediately halt trading in that product on the Exchange. If the Required Value continues not to be calculated or widely disseminated at the commencement of trading on the Exchange on the next business day, the Exchange shall not commence trading of the product on that day. If an interruption in the calculation or wide dissemination of the Required Value continues, the Exchange may resume trading in the Derivative Securities Product only if calculation and wide dissemination of the Required Value resumes or trading in such product resumes on the listing market. The Exchange is also amending Equity Rule 4630, which governs the activities of registered market makers in Commodity-Related Securities. A ‘‘Commodity-Related Security’’ is defined to mean a security that is issued by a trust, partnership, commodity pool or similar entity that invests, directly or through another entity, in any combination of commodities, futures contracts, options on futures contracts, forward contracts, commodity swaps, or other related derivatives, or the value of which is determined by the value of commodities, futures contracts, options on futures contracts, forward contracts, commodity swaps, or other related derivatives. A ‘‘commodity’’ is defined in Section 1(a)(4) of the Commodity Exchange Act, a definition that includes currencies. As amended, the rule provides that a registered market maker in a Commodity-Related Security is prohibited from acting or registering as a market maker in any commodities, futures contracts, options on futures E:\FR\FM\18FEN1.SGM 18FEN1 mstockstill on PROD1PC66 with NOTICES 7624 Federal Register / Vol. 74, No. 31 / Wednesday, February 18, 2009 / Notices contracts, forward contracts, commodity swaps, or other related derivatives underlying such Commodity-Related Security. The rule further provides that a member acting as a registered market maker in a Commodity-Related Security must file with the Exchange’s Regulation Department in a manner prescribed by such Department and keep current a list identifying all accounts for trading in commodities, futures contracts, options on futures contracts, forward contracts, commodity swaps, or other related derivatives underlying such Commodity-Related Security, in which the market maker holds an interest, over which it may exercise investment discretion, or in which it shares in the profits and losses. No market maker shall trade in, or exercise investment discretion with respect to, such underlying commodities, futures contracts, options on futures contracts, forward contracts, commodity swaps, or other related derivatives, in an account in which a market maker, directly or indirectly, controls trading activities, or has an interest in the profits or losses thereof, that has not been reported as required by the Rule. In addition, a member acting as a registered market maker in a Commodity-Related Security is obligated to establish adequate information barriers when such market maker engages in communications to other departments within the same firm or the firm’s affiliates that involve trading in commodities, futures contracts, options on futures contracts, forward contracts, commodity swaps, or other related derivatives underlying such Commodity-Related Security. The member acting as a registered market maker in a Commodity-Related Security shall make available to the Exchange’s Regulation Department such books, records or other information pertaining to transactions by such entity or registered or non-registered employee affiliated with such entity for its or their own accounts for trading commodities, futures contracts, options on futures contracts, forward contracts, commodity swaps, or other related derivatives underlying such Commodity-Related Security, as may be requested by the Regulation Department. Finally, in connection with trading a CommodityRelated Security or commodities, futures contracts, options on futures contracts, forward contracts, commodity swaps, or other related derivatives underlying a Commodity-Related Security, the member acting as a market maker in a Commodity-Related Security shall not use any material nonpublic VerDate Nov<24>2008 17:45 Feb 17, 2009 Jkt 217001 information received from any person associated with the member or employee of such person regarding trading by such person or employee in the commodities, futures contracts, options on futures contracts, forward contracts, commodity swaps, or other related derivatives underlying such Commodity-Related Security. The Exchange represents that its surveillance procedures for UTP Derivative Securities traded on the Exchange will be similar to the procedures used for equity securities traded on the Exchange and will incorporate and rely upon existing Exchange surveillance procedures. The Exchange will closely monitor activity in UTP Derivative Securities traded on the Exchange pursuant to UTP to deter any potential improper trading activity. The proposed rule change also provides that the Exchange will enter into a comprehensive surveillance sharing agreement (‘‘CSSA’’) with a market trading components of the index or portfolio on which the UTP Derivative Security is based to the same extent as the listing exchange’s rules require the listing market to enter into a CSSA with such market. Finally, the Exchange is amending provisions of Equity Rule 4120 and 4630 that stipulate that the Exchange will file separate proposals under Section 19(b)(2) of the Act for each issue of Managed Fund Shares or CommodityBased Securities that it trades on a UTP basis. Because the new rules being adopted by the Exchange consolidate the requirements for trading such securities that have been established in new product proposals previously approved by the Commission, separate proposals under Section 19(b)(2) of the Act are no longer required for trading these securities. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,7 in general and with Section 6(b)(5) of the Act,8 in particular, in that it would promote just and equitable principles of trade, remove impediments to, and perfect the mechanism of, a free and open market and a national market system, and, in general, protect investors and the public interest by providing for the trading of securities, including UTP Derivative Securities, on the Exchange pursuant to UTP, subject to consistent and reasonable standards. 7 15 8 15 PO 00000 U.S.C. 78f. U.S.C. 78f(b)(5). Frm 00041 Fmt 4703 Sfmt 4703 B. Self-Regulatory Organization’s Statement on Burden on Competition The Exchange 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 Written comments on the proposed rule change were neither solicited nor received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act 9 and Rule 19b– 4(f)(6) thereunder.10 The Exchange has asked the Commission to waive the 30-day operative delay. The Commission believes that such waiver is consistent with the protection of investors and the public interest because such waiver should benefit investors by creating, without undue delay, additional competition in the trading of UTP Derivative Securities, subject to consistent and reasonable standards. The proposed rule change is modeled closely after similar rules of other national securities exchanges11 and does not raise any novel or significant regulatory issues.Therefore, the Commission designates the proposed rule change as operative upon filing.12 At any time within 60 days of the filing of the proposed rule change the 9 15 U.S.C. 78s(b)(3)(A). CFR 240.19b–4(f)(6). In addition, as required under Rule 19b–4(f)(6)(iii), the Exchange provided the Commission with written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five days prior to the filing of the proposed rule change. 11 See NSX Rule 15.9 and Securities Exchange Act Release No. 57448 (March 6, 2008), 73 FR 13597 (March 13, 2008) (SR–NSX–2008–05); ISE Rule 2101 and Securities Exchange Act Release No. 57387 (February 27, 2008), 73 FR 11965 (March 5, 2008) (SR–ISE–2007–99); and BATS Rule 14.1 and Securities Exchange Act Release No. 58623 (September 23, 2008), 73 FR 57169 (October 1, 2008) (SR–BATS–2008–004). 12 For purposes only of waiving the operative date of this proposal, the Commission has considered the rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). 10 17 E:\FR\FM\18FEN1.SGM 18FEN1 Federal Register / Vol. 74, No. 31 / Wednesday, February 18, 2009 / Notices 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: mstockstill on PROD1PC66 with NOTICES Electronic Comments • Use the Commission’s Internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an e-mail to rulecomments@sec.gov. Please include File Number SR–NASDAQ–2009–004 on the subject line. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.13 Florence E. Harmon, Deputy Secretary. [FR Doc. E9–3484 Filed 2–17–09; 8:45 am] BILLING CODE 8011–01–P 17:45 Feb 17, 2009 Jkt 217001 (Catalog of Federal Domestic Assistance Number 59002) Darryl K. Hairston, Acting Administrator. [FR Doc. E9–3404 Filed 2–17–09; 8:45 am] BILLING CODE 8025–01–P SMALL BUSINESS ADMINISTRATION SOCIAL SECURITY ADMINISTRATION [Disaster Declaration # 11651] [Docket No. SSA–2008–0062] Oregon Disaster # OR–00027 Declaration of Economic Injury Social Security Ruling, SSR 09–2p.; Title XVI: Determining Childhood Disability—Documenting a Child’s Impairment-Related Limitations AGENCY: U.S. Small Business Administration. ACTION: Notice. PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 Social Security Administration. Notice of Social Security Ruling AGENCY: ACTION: SUMMARY: This is a notice of an Economic Injury Disaster Loan (EIDL) declaration for the State of Oregon, dated 02/11/2009. Incident: Severe Winter Storm Paper Comments System. • Send paper comments in triplicate Incident Period: 12/14/2008 through to Elizabeth M. Murphy, Secretary, 01/04/2009. Commission, 100 F Street, NE., DATES: Effective Date: 02/11/2009. Washington, DC 20549–1090. EIDL Loan Application Deadline Date: All submissions should refer to File 11/12/2009. Number SR–NASDAQ–2009–004. This file number should be included on the ADDRESSES: Submit completed loan subject line if e-mail is used. To help the applications to: U.S. Small Business Commission process and review your Administration, Processing and comments more efficiently, please use Disbursement Center, 14925 Kingsport only one method. The Commission will Road, Fort Worth, TX 76155. post all comments on the Commission’s FOR FURTHER INFORMATION CONTACT: A. Internet Web site (https://www.sec.gov/ Escobar, Office of Disaster Assistance, rules/sro.shtml). Copies of the U.S. Small Business Administration, submission, all subsequent 409 3rd Street, SW., Suite 6050, amendments, all written statements Washington, DC 20416. with respect to the proposed rule SUPPLEMENTARY INFORMATION: Notice is change that are filed with the hereby given that as a result of the Commission, and all written Administrator’s EIDL declaration, communications relating to the applications for economic injury proposed rule change between the Commission and any person, other than disaster loans may be filed at the address listed above or other locally those that may be withheld from the announced locations. public in accordance with the The following areas have been provisions of 5 U.S.C. 552, will be determined to be adversely affected by available for inspection and copying in the disaster: the Commission’s Public Reference Room on official business days between Primary Counties: Columbia, Hood River, Multnomah, the hours of 10 a.m. and 3 p.m. Copies Washington. of such filing also will be available for Contiguous Counties: inspection and copying at the principal Oregon: Clackamas, Clatsop, office of the Exchange. All comments Tillamook, Wasco, Yamhill. received will be posted without change; Washington: Clark, Cowlitz, Klickitat, the Commission does not edit personal Skamania, Wahkiakum. identifying information from The Interest Rate is: 4.000. submissions. You should submit only The number assigned to this disaster information that you wish to make for economic injury is 116510. available publicly. The States which received an EIDL All submissions should refer to File Declaration # are Oregon, Washington. Number SR–NASDAQ–2009–004 and should be submitted on or before March 13 17 CFR 200.30–3(a)(12). 11, 2009. VerDate Nov<24>2008 7625 (SSR). SUMMARY: We are giving notice of SSR 09–2p. This SSR provides policy interpretations and consolidates information from our regulations, training materials, and question-andanswer documents about documenting and evaluating evidence of a child’s impairment-related limitations and related issues. DATES: Effective Date: March 20, 2009 FOR FURTHER INFORMATION CONTACT: Robin Doyle, Office of Disability Programs, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235–6401, (410) 966–2771. SUPPLEMENTARY INFORMATION: Although 5 U.S.C. 552(a)(1) and (a)(2) do not require us to publish this SSR, we are doing so under 20 CFR 402.35(b)(1). SSRs make available to the public precedential decisions relating to the Federal old-age, survivors, disability, supplemental security income, special veterans benefits, and black lung benefits programs. SSRs may be based on determinations or decisions made at all levels of administrative adjudication, Federal court decisions, Commissioner’s decisions, opinions of the Office of the General Counsel, or other interpretations of the law and regulations. Although SSRs do not have the same force and effect as statutes or regulations, they are binding on all components of the Social Security Administration. 20 CFR 402.35(b)(1). This SSR will be in effect until we publish a notice in the Federal Register that rescinds it, or publish a new SSR that replaces or modifies it. (Catalog of Federal Domestic Assistance, Program No. 96.006 Supplemental Security Income.) E:\FR\FM\18FEN1.SGM 18FEN1

Agencies

[Federal Register Volume 74, Number 31 (Wednesday, February 18, 2009)]
[Notices]
[Pages 7622-7625]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-3484]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59396; File No. SR-NASDAQ-2009-004]


Self-Regulatory Organizations; NASDAQ Stock Market LLC; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change 
Consolidating Into a Single Rule Certain Requirements for Products 
Traded on the Exchange Pursuant to Unlisted Trading Privileges

February 11, 2009.
    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 January 30, 2009, NASDAQ Stock Market LLC (``Nasdaq'' or the 
``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 Exchange 
has designated the proposed rule change as constituting a non-
controversial rule change under Section 19(b)(3)(A) of the Act \3\ and 
Rule 19b-4(f)(6) thereunder,\4\ which renders the proposal effective 
upon filing with the Commission. The Commission is publishing this 
notice to solicit comments on the proposed rule change from interested 
persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    The Exchange proposes to adopt rules reflecting the requirements 
for trading products on the Exchange pursuant to

[[Page 7623]]

unlisted trading privileges (``UTP'') that have been established in 
various new product proposal previously approved by the Commission.
    The text of the proposed rule change is available from Nasdaq's Web 
site at https://nasdaq.cchwallstreet.com, at Nasdaq's principal office, 
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 Exchange proposes to amend its rules to reflect certain 
requirements for trading products on the Exchange pursuant to UTP that 
have been established in various new product proposals previously 
approved by the Commission. The Exchange is amending and moving part of 
the introductory language of Equity Rule 4420 to become introductory 
language to Equity Rule 4421 to provide that it may extend UTP to any 
security that is an NMS Stock (as defined in Rule 600 of Regulation 
NMS) that is listed on another national securities exchange, as well as 
to consolidate the UTP concept within the rulebook. Any such security 
will be subject to all of the Exchange's trading rules applicable to 
NMS Stocks, unless otherwise noted, including the provisions of Equity 
Rules 4120, 4420, 4630, and new Rule 4421 described below. The Exchange 
will file with the Commission a Form 19b-4(e) with respect to any such 
security that is a ``new derivative securities product'' as defined in 
Rule 19b-4(e) under the Act \5\ (defined as a ``UTP Derivative 
Security''). In addition, any new derivative securities product traded 
on the Exchange will be subject to the criteria described below.
---------------------------------------------------------------------------

    \5\ 17 CFR 240.19b-4(e).
---------------------------------------------------------------------------

    Proposed Equity Rule 4421(a)(2) provides that the Exchange will 
distribute an information circular prior to the commencement of trading 
in a UTP Derivative Security, which generally will include the same 
information as the information circular provided by the listing 
exchange, including: (1) The special risks of trading the UTP 
Derivative Security; (2) the Rules of the Exchange that will apply to 
the UTP Derivative Security, including Equity Rule 2310, the Exchange's 
suitability rule; (3) information about the dissemination of the value 
of the underlying assets or indexes; and (4) the applicable trading 
hours for the UTP Derivative Security and risks of trading during the 
Exchange's pre-market session (7 a.m. to 9:30 a.m.) and post-market 
session (4 p.m. to 8 p.m.) due to the lack of calculation or 
dissemination of the underlying index value, the intraday indicative 
value, or a similar value.
    Proposed Equity Rule 4421(a)(3)(A) reminds Members \6\ that they 
are subject to the prospectus delivery requirements under the 
Securities Act of 1933, as amended (the ``Securities Act''), unless a 
UTP Derivative Security is the subject of an order by the Commission 
exempting the product from certain prospectus delivery requirements 
under Section 24(d) of the Investment Company Act of 1940 (the ``1940 
Act'') and the product is not otherwise subject to prospectus delivery 
requirements under the Securities Act. The Exchange will inform its 
Members of the application of these provisions to a particular UTP 
Derivative Security governed by the 1940 Act by means of an information 
circular.
---------------------------------------------------------------------------

    \6\ A Member is any registered broker-dealer that has been 
admitted to membership in the Exchange.
---------------------------------------------------------------------------

    The Exchange is amending Equity Rule 4120(b) to more fully address 
trading halts in UTP Derivative Securities traded on the Exchange 
pursuant to UTP. As currently in effect, Rule 4120(b) provides for 
trading halts of ``Derivative Securities Products,'' which are defined 
as a series of Portfolio Depository Receipts, Index Fund Shares, 
Managed Fund Shares, Trust Issued Receipts, Commodity-Related 
Securities, or securities representing interests in unit investment 
trusts or investment companies. Although this definition covers a wide 
range of products that would be considered UTP Derivative Securities, 
for the avoidance of doubt, the Exchange is explicitly amending the 
definition to include all UTP Derivative Securities. The current rule 
also contains a definition of ``Required Value'' and provides for 
trading halts in certain circumstances where a Required Value is not 
being disseminated. Currently, ``Required Value'' is defined to mean 
``(i) The value of any index or any commodity-related value underlying 
a Derivative Security Product and (ii) the indicative optimized 
portfolio value, intraday indicative value, or other comparable 
estimate of the value of a share of a Derivative Securities Product 
updated regularly during the trading day.'' The Exchange proposes to 
amend the definition to also include ``(iii) a net asset value in the 
case of a Derivative Securities Product for which a net asset value is 
disseminated, and (iv) a `disclosed portfolio' in the case of a 
Derivative Securities Product that is a series of managed fund shares 
or actively managed exchange-traded funds for which a disclosed 
portfolio is disseminated.''
    Thus, as amended, the rule provides that the Exchange, upon 
notification by the listing market of a halt due to a temporary 
interruption in the calculation or wide dissemination of a Required 
Value for a Derivative Securities Product, will immediately halt 
trading in that product on the Exchange. If the Required Value 
continues not to be calculated or widely disseminated at the 
commencement of trading on the Exchange on the next business day, the 
Exchange shall not commence trading of the product on that day. If an 
interruption in the calculation or wide dissemination of the Required 
Value continues, the Exchange may resume trading in the Derivative 
Securities Product only if calculation and wide dissemination of the 
Required Value resumes or trading in such product resumes on the 
listing market.
    The Exchange is also amending Equity Rule 4630, which governs the 
activities of registered market makers in Commodity-Related Securities. 
A ``Commodity-Related Security'' is defined to mean a security that is 
issued by a trust, partnership, commodity pool or similar entity that 
invests, directly or through another entity, in any combination of 
commodities, futures contracts, options on futures contracts, forward 
contracts, commodity swaps, or other related derivatives, or the value 
of which is determined by the value of commodities, futures contracts, 
options on futures contracts, forward contracts, commodity swaps, or 
other related derivatives. A ``commodity'' is defined in Section 
1(a)(4) of the Commodity Exchange Act, a definition that includes 
currencies. As amended, the rule provides that a registered market 
maker in a Commodity-Related Security is prohibited from acting or 
registering as a market maker in any commodities, futures contracts, 
options on futures

[[Page 7624]]

contracts, forward contracts, commodity swaps, or other related 
derivatives underlying such Commodity-Related Security. The rule 
further provides that a member acting as a registered market maker in a 
Commodity-Related Security must file with the Exchange's Regulation 
Department in a manner prescribed by such Department and keep current a 
list identifying all accounts for trading in commodities, futures 
contracts, options on futures contracts, forward contracts, commodity 
swaps, or other related derivatives underlying such Commodity-Related 
Security, in which the market maker holds an interest, over which it 
may exercise investment discretion, or in which it shares in the 
profits and losses. No market maker shall trade in, or exercise 
investment discretion with respect to, such underlying commodities, 
futures contracts, options on futures contracts, forward contracts, 
commodity swaps, or other related derivatives, in an account in which a 
market maker, directly or indirectly, controls trading activities, or 
has an interest in the profits or losses thereof, that has not been 
reported as required by the Rule.
    In addition, a member acting as a registered market maker in a 
Commodity-Related Security is obligated to establish adequate 
information barriers when such market maker engages in communications 
to other departments within the same firm or the firm's affiliates that 
involve trading in commodities, futures contracts, options on futures 
contracts, forward contracts, commodity swaps, or other related 
derivatives underlying such Commodity-Related Security. The member 
acting as a registered market maker in a Commodity-Related Security 
shall make available to the Exchange's Regulation Department such 
books, records or other information pertaining to transactions by such 
entity or registered or non-registered employee affiliated with such 
entity for its or their own accounts for trading commodities, futures 
contracts, options on futures contracts, forward contracts, commodity 
swaps, or other related derivatives underlying such Commodity-Related 
Security, as may be requested by the Regulation Department. Finally, in 
connection with trading a Commodity-Related Security or commodities, 
futures contracts, options on futures contracts, forward contracts, 
commodity swaps, or other related derivatives underlying a Commodity-
Related Security, the member acting as a market maker in a Commodity-
Related Security shall not use any material nonpublic information 
received from any person associated with the member or employee of such 
person regarding trading by such person or employee in the commodities, 
futures contracts, options on futures contracts, forward contracts, 
commodity swaps, or other related derivatives underlying such 
Commodity-Related Security.
    The Exchange represents that its surveillance procedures for UTP 
Derivative Securities traded on the Exchange will be similar to the 
procedures used for equity securities traded on the Exchange and will 
incorporate and rely upon existing Exchange surveillance procedures. 
The Exchange will closely monitor activity in UTP Derivative Securities 
traded on the Exchange pursuant to UTP to deter any potential improper 
trading activity. The proposed rule change also provides that the 
Exchange will enter into a comprehensive surveillance sharing agreement 
(``CSSA'') with a market trading components of the index or portfolio 
on which the UTP Derivative Security is based to the same extent as the 
listing exchange's rules require the listing market to enter into a 
CSSA with such market.
    Finally, the Exchange is amending provisions of Equity Rule 4120 
and 4630 that stipulate that the Exchange will file separate proposals 
under Section 19(b)(2) of the Act for each issue of Managed Fund Shares 
or Commodity-Based Securities that it trades on a UTP basis. Because 
the new rules being adopted by the Exchange consolidate the 
requirements for trading such securities that have been established in 
new product proposals previously approved by the Commission, separate 
proposals under Section 19(b)(2) of the Act are no longer required for 
trading these securities.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the provisions of Section 6 of the Act,\7\ in general and with 
Section 6(b)(5) of the Act,\8\ in particular, in that it would promote 
just and equitable principles of trade, remove impediments to, and 
perfect the mechanism of, a free and open market and a national market 
system, and, in general, protect investors and the public interest by 
providing for the trading of securities, including UTP Derivative 
Securities, on the Exchange pursuant to UTP, subject to consistent and 
reasonable standards.
---------------------------------------------------------------------------

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

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

    The Exchange 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

    Written comments on the proposed rule change were neither solicited 
nor received.

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

    Because the foregoing proposed rule change does not: (i) 
Significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to Section 19(b)(3)(A) of the Act \9\ and Rule 19b-
4(f)(6) thereunder.\10\
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78s(b)(3)(A).
    \10\ 17 CFR 240.19b-4(f)(6). In addition, as required under Rule 
19b-4(f)(6)(iii), the Exchange provided the Commission with written 
notice of its intent to file the proposed rule change, along with a 
brief description and text of the proposed rule change, at least 
five days prior to the filing of the proposed rule change.
---------------------------------------------------------------------------

    The Exchange has asked the Commission to waive the 30-day operative 
delay. The Commission believes that such waiver is consistent with the 
protection of investors and the public interest because such waiver 
should benefit investors by creating, without undue delay, additional 
competition in the trading of UTP Derivative Securities, subject to 
consistent and reasonable standards. The proposed rule change is 
modeled closely after similar rules of other national securities 
exchanges\11\ and does not raise any novel or significant regulatory 
issues.Therefore, the Commission designates the proposed rule change as 
operative upon filing.\12\
---------------------------------------------------------------------------

    \11\ See NSX Rule 15.9 and Securities Exchange Act Release No. 
57448 (March 6, 2008), 73 FR 13597 (March 13, 2008) (SR-NSX-2008-
05); ISE Rule 2101 and Securities Exchange Act Release No. 57387 
(February 27, 2008), 73 FR 11965 (March 5, 2008) (SR-ISE-2007-99); 
and BATS Rule 14.1 and Securities Exchange Act Release No. 58623 
(September 23, 2008), 73 FR 57169 (October 1, 2008) (SR-BATS-2008-
004).
    \12\ For purposes only of waiving the operative date of this 
proposal, the Commission has considered the rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule 
change the

[[Page 7625]]

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:

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-NASDAQ-2009-004 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Commission, 100 F Street, NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-NASDAQ-2009-004. 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 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 available publicly.

    All submissions should refer to File Number SR-NASDAQ-2009-004 and 
should be submitted on or before March 11, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\13\
---------------------------------------------------------------------------

    \13\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E9-3484 Filed 2-17-09; 8:45 am]
BILLING CODE 8011-01-P
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