Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to the Nasdaq Listing Rules To Conform Those Rules With the Prior Marketplace Rules and Make Certain Technical Corrections, 23456-23458 [E9-11618]

Download as PDF 23456 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Notices addition, where a member routes an order and has no basis for identifying where the trade was ultimately executed or, in the case of over-the-counter trades, where the trade was ultimately reported, the member will be required to populate the Related Market Center field with a standard indicator: ‘‘unknown venue.’’ 10 III. Discussion After careful review, 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 national securities association.11 In particular, the Commission finds that the proposed rule change is consistent with Section 15A(b)(6) of the Act,12 in that it is designed, among other things, to prevent fraudulent and manipulative acts and practices; to promote just and equitable principles of trade; to remove impediments to and perfect the mechanism of a free and open market and a national market system; and, in general, to protect investors and the public interest. The Commission believes that the proposed rule change will result in a more complete and accurate audit trail and ensure that members are not using non-tape reports to circumvent FINRA or Commission rules. FINRA stated that currently it is difficult to determine with certainty where the associated trade was reported, especially if that trade was reported to an exchange or another FINRA Facility.13 As noted above, the Commission received three comment letters in response to the Notice.14 The three commenters generally oppose the proposal and state that the potential costs, including required system changes, outweigh the benefits of the proposal. In addition, the commenters raise several concerns about the practical difficulties of complying with the proposed rule change. First, the commenters indicate it would be difficult (if not impossible) to identify 10 See id. approving these proposed rule changes, the Commission has considered the proposed rules’ impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). 12 15 U.S.C. 78o–3(b)(6). 13 Currently, FINRA must manually match nontape reports with associated tape reports for purposes of monitoring member compliance with trade reporting rules. FINRA stated that by requiring that firms identify the market center or facility to which the associated tape report was submitted, the universe of tape reports that must be reviewed as part of the matching process will be significantly narrowed, and accordingly, the effectiveness and certainty of the matching process will be enhanced. 14 See supra note 4. mstockstill on PROD1PC66 with NOTICES 11 In VerDate Nov<24>2008 16:48 May 18, 2009 Jkt 217001 multiple exchanges and/or FINRA Facilities where a single non-tape report is associated with multiple executions on multiple markets. Second, the three commenters point out that when a firm routes an order, it may not know the ultimate execution destination. Third, the commenters argue that even if a firm knows that a trade in an NMS stock was executed over-the-counter, the firm may not know where the trade was reported because FINRA’s Uniform Service Bureau/Executing Broker Agreement (‘‘USBEBA’’) allows the reporting party to report to any TRF or ADF, without providing notice to the other party to the trade.15 FINRA replied to the comments in Amendment No. 2 and revised and clarified the original proposal to alleviate the commenters’ concerns. In particular, FINRA clarified that where a single non-tape report is related to multiple tape reports: (1) If the multiple tape reports were made to a single exchange or, in the case of over-thecounter trades, a single FINRA Facility, that exchange or facility must be reflected on the single non-tape report; and (2) if the multiple tape reports were made to different exchanges and/or FINRA Facilities, the member will be required to populate the Related Market Center field with a standard indicator: ‘‘multiple venues.’’ 16 In addition, FINRA provided that where a member routes an order and has no basis for identifying the relevant exchange or FINRA Facility to determine where the trade was ultimately executed or, in the case of over-the-counter trades, where the trade was ultimately reported, the member will be required to populate the Related Market Center field with a standard indicator: ‘‘unknown venue.’’ To the extent technological enhancements are required, FINRA stated that it intends to provide adequate time for members to make the necessary changes and revised the original proposal to provide for the implementation of the proposed rule change at least 90 days following implementation on August 3, 2009, of the amendments to FINRA trade reporting rules adopted pursuant to SR– FINRA–2008–011.17 The Commission believes that FINRA’s approach that tailors the proposed reporting requirement to reflect informational limitations described by the commenters is reasonable, in that it reflects FINRA’s expectation that members provide as 15 See SIFMA Letter and Citigroup Letter. Amendment No. 2. 17 See FINRA Regulatory Notice 09–08 (January 2009). 16 See PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 much information as is reasonably available at the time the non-tape report is submitted. Further, the Commission notes that FINRA clarified that where a member routes to an exchange and has a reasonable basis for reporting that the trade was executed on that exchange, FINRA would not consider it a violation if, unbeknownst to the member, the trade is ultimately executed somewhere other than the routed exchange.18 The Commission also notes that it would expect FINRA to incorporate the proposed changes into its surveillance and examination programs to ensure that members are not improperly using the ‘‘multiple venue’’ or ‘‘unknown venue’’ indications. IV. Conclusion For the foregoing reasons, the Commission finds that the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to a national securities association. It is therefore ordered, pursuant to Section 19(b)(2) of the Act,19 that the proposed rule change (SR–FINRA– 2007–012), as modified by Amendment Nos. 1 and 2 thereto, be and hereby is approved. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.20 Florence E. Harmon, Deputy Secretary. [FR Doc. E9–11607 Filed 5–18–09; 8:45 am] BILLING CODE 8101–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–59915; File No. SR– NASDAQ–2009–040] Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to the Nasdaq Listing Rules To Conform Those Rules With the Prior Marketplace Rules and Make Certain Technical Corrections May 13, 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 April 27, 2009, The NASDAQ Stock Market LLC (‘‘Nasdaq’’) filed with the Securities and Exchange Commission (‘‘Commission’’) 18 The same approach would apply to reporting to other FINRA Facilities. 19 15 U.S.C. 78s(b)(2). 20 17 CFR 200.30–3(a)(12). 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. E:\FR\FM\19MYN1.SGM 19MYN1 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Notices the proposed rule change as described in Items I and II below, which Items have been prepared by Nasdaq. Nasdaq has designated the proposed rule change as effecting a change described under Rule 19b-4(f)(6) under the Act,3 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 Nasdaq proposes to modify the Nasdaq Listing Rules to conform those rules with the prior Marketplace Rules and make certain technical corrections. 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, 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 IV 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 mstockstill on PROD1PC66 with NOTICES 1. Purpose On March 12, 2009, Nasdaq filed a proposed rule change to revise the rules relating to the qualification, listing, and delisting of companies listed on, or applying to list on, Nasdaq to improve the organization of the rules, eliminate redundancies and simplify the rule language.4 These rules (the ‘‘New Listing Rules’’) were effective April 13, 2009. Nasdaq has observed that the March filing introduced two inadvertent changes in the New Listing Rules. This filing modifies those rules to revert to the requirements as they previously existed 5 and makes other technical and clarifying corrections to the rules. 3 17 CFR 240.19b–4(f)(6). Exchange Act Release No. 59663 (March 31, 2009), 74 FR 15552 (April 6, 2009) (SR– NASDAQ–2009–018). 5 The text of Nasdaq’s prior rules is included in Exhibit 5B of SR–NASDAQ–2009–018, supra note 4 Securities VerDate Nov<24>2008 16:48 May 18, 2009 Jkt 217001 Specifically, Nasdaq proposes to modify Rule 5405(b)(3)(A) to correct the requirement for companies seeking to list on the Nasdaq Global Market under the Market Value Standard. Previously, under Rule 4420(c)(6)(A), a currently traded company that applied to list under this standard was required to meet the market value of listed securities requirement and the bid price requirement for 90 consecutive trading days prior to applying for listing. As adopted in Rule 5405(b)(3)(A), this requirement was inadvertently changed to 90 consecutive calendar days. In addition, Nasdaq proposes to modify Rules 5250(d) and 5615 and IM– 5615–3 to allow a Foreign Private Issuer to follow its home country practice in lieu of the requirement to distribute interim and annual reports. Previously, the provision allowing Foreign Private Issuers to follow their home country practice applied to all of Rule 4350 (subject to certain specified exceptions), including the requirement to distribute reports set forth in prior Rule 4350(b).6 In the New Listing Rules, while most of the requirements of Rule 4350 were moved to the Rule 5600 Series, the requirement to distribute reports was moved to Rule 5250(d). However, no corresponding cross-reference was included to specify the ability of a Foreign Private Issuer to follow its home country practice in lieu of this requirement. The proposed rule change would correct that omission. Nasdaq also proposes to add a new Rule 5250(f), clarifying that companies listed on Nasdaq are required to pay their listing fees as a condition to continued listing.7 This proposed requirement, which was previously contained in Rules 4310(c)(13) and 4320(e)(11), would be analogous to the requirement contained in Rule 5210(d) applicable to companies applying to list on Nasdaq. Finally, Nasdaq proposes to make certain technical corrections. First, Nasdaq proposes to modify Rule 5255, relating to Direct Registration Programs, to eliminate a provision that expired on March 31, 2009. In addition, Nasdaq 4, available at: https://nasdaq.cchwallstreet.com/ NASDAQ/pdf/nasdaq-filings/2009/SR–NASDAQ– 2009–018.pdf. 6 See prior Rule 4350(a)(1). Note that under this rule, as with Rule 5615(a)(3), a foreign private issuer was required to comply with the requirement to disclose the receipt of an audit opinion that expresses doubt about the ability of the company to continue as a going concern, which was contained in prior Rule 4350(b)(1)(B). 7 Although New Listing Rules 5400 and 5500 contain the requirement for listed companies to pay fees, Nasdaq believes it would be more transparent to also include this requirement in the list of obligations for listed companies. PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 23457 proposes to correct certain typographical errors, such as adding omitted words, deleting repeated and unnecessary words, renumbering certain provisions, and correcting capitalization, spacing, punctuation and cross references in Rules 5000, 5600, 5615, 5635, 5740, 5820, and 5900, IM– 5615–2 and IM–5615–3. 2. Statutory Basis Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,8 in general and with Sections [sic] 6(b)(5) of the Act,9 in particular in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. The proposed rule change is designed to revert to the previously approved requirements of certain listing standards that were inadvertently changed when adopting the New Listing Rules and correct typographical errors in the rules. 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, as amended. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others Written comments were neither solicited nor received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Because the proposed rule change: (i) Does not significantly affect the protection of investors or the public interest; (ii) does not impose any significant burden on competition; and (iii) does not become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 8 15 9 15 U.S.C. 78f. U.S.C. 78f(b)(5). E:\FR\FM\19MYN1.SGM 19MYN1 23458 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Notices 19(b)(3)(A) of the Act 10 and Rule 19b– 4(f)(6) thereunder.11 A proposed rule change filed under Rule 19b–4(f)(6) normally may not become operative prior to 30 days after the date of filing.12 However, Rule 19b– 4(f)(6)(iii) 13 permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. Nasdaq has requested that the Commission waive the 30-day operative delay. Nasdaq requests this waiver so that these corrections can be immediately operative, eliminating any potential confusion caused by the unintended changes in the New Listing Rules. Nasdaq further believes that the proposed rule change does not significantly affect the protection of investors or the public interest because it merely conforms the recently adopted Nasdaq listing rules with the previously approved Nasdaq rules and corrects typographical errors. The Commission notes that the changes being proposed do not present any new regulatory issues. The changes simply conform recently revised listing rules to previously approved rules, correct typographical errors, and make certain clarifying changes. For these reasons, the Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest, and designates the proposed rule change to be operative upon filing with the Commission.14 At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule 10 15 U.S.C. 78s(b)(3)(A). CFR 240.19b–4(f)(6). 12 17 CFR 240.19b–4(f)(6)(iii). In addition, Rule 19b–4(f)(6)(iii) requires that a self-regulatory organization submit to the Commission 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 business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission. Nasdaq has satisfied this requirement. 13 Id. 14 For the purposes only of waiving the 30-day operative delay, the Commission has considered the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). mstockstill on PROD1PC66 with NOTICES 11 17 VerDate Nov<24>2008 16:48 May 18, 2009 Jkt 217001 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 rulecomments@sec.gov. Please include File Number SR–NASDAQ–2009–040 on the subject line. SECURITIES AND EXCHANGE COMMISSION [Release No. 34–59912; File No. SR–ISE– 2009–26] Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of Proposed Rule Change by International Securities Exchange, LLC Relating to Changes to the Fee Schedule May 13, 2009. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the ‘‘Act’’),1 and Rule 19b–4 thereunder,2 • Send paper comments in triplicate notice is hereby given that on May 5, to Elizabeth M. Murphy, Secretary, 2009, the International Securities Securities and Exchange Commission, Exchange, LLC (the ‘‘Exchange’’ or the Station Place, 100 F Street, NE., ‘‘ISE’’) filed with the Securities and Washington, DC 20549–1090. Exchange Commission (‘‘Commission’’) All submissions should refer to File the proposed rule change as described Number SR–NASDAQ–2009–040. This in Items I, II, and III below, which items file number should be included on the have been prepared by the selfsubject line if e-mail is used. To help the regulatory organization. The Commission process and review your Commission is publishing this notice to comments more efficiently, please use solicit comments on the proposed rule only one method. The Commission will change from interested persons. post all comments on the Commission’s I. Self-Regulatory Organization’s Internet Web site (https://www.sec.gov/ Statement of the Terms of Substance of rules/sro.shtml). Copies of the the Proposed Rule Change submission, all subsequent The Exchange is proposing to amend amendments, all written statements its Schedule of Fees to make clarifying with respect to the proposed rule changes. The text of the proposed rule change that are filed with the change is available on the Exchange’s Commission, and all written Internet Web site at https://www.ise.com. communications relating to the proposed rule change between the II. Self-Regulatory Organization’s Commission and any person, other than Statement of the Purpose of, and those that may be withheld from the Statutory Basis for, the Proposed Rule public in accordance with the Change provisions of 5 U.S.C. 552, will be In its filing with the Commission, the available for inspection and copying in self-regulatory organization included the Commission’s Public Reference statements concerning the purpose of, Room on official business days between and basis for, the proposed rule change the hours of 10 a.m. and 3 p.m. Copies and discussed any comments it received of such filing also will be available for on the proposed rule change. The text inspection and copying at the principal of these statements may be examined at office of Nasdaq. All comments received the places specified in Item IV below. will be posted without change; the The self-regulatory organization has Commission does not edit personal prepared summaries, set forth in identifying information from sections A, B and C below, of the most submissions. You should submit only significant aspects of such statements. information that you wish to make A. Self-Regulatory Organization’s available publicly. All submissions Statement of the Purpose of, and should refer to File Number SR– Statutory Basis for, the Proposed Rule NASDAQ–2009–040 and should be Change submitted on or before June 9, 2009. (a) Purpose—The purpose of this For the Commission, by the Division of proposed rule change is to make Trading and Markets, pursuant to delegated clarifying changes to the Exchange’s authority.15 Schedule of Fees. On April 27, 2009, the Florence E. Harmon, Exchange submitted SR–ISE–2009–21, a Deputy Secretary. proposed rule change to eliminate [FR Doc. E9–11618 Filed 5–18–09; 8:45 am] customer fees in multiply-listed Paper Comments BILLING CODE 8010–01–P 1 15 15 17 PO 00000 CFR 200.30–3(a)(12). Frm 00070 Fmt 4703 Sfmt 4703 2 17 U.S.C. 78s(b)(1). CFR 240.19b–4. E:\FR\FM\19MYN1.SGM 19MYN1

Agencies

[Federal Register Volume 74, Number 95 (Tuesday, May 19, 2009)]
[Notices]
[Pages 23456-23458]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-11618]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59915; File No. SR-NASDAQ-2009-040]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change to 
the Nasdaq Listing Rules To Conform Those Rules With the Prior 
Marketplace Rules and Make Certain Technical Corrections

May 13, 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 April 27, 2009, The NASDAQ Stock Market LLC (``Nasdaq'') filed with 
the Securities and Exchange Commission (``Commission'')

[[Page 23457]]

the proposed rule change as described in Items I and II below, which 
Items have been prepared by Nasdaq. Nasdaq has designated the proposed 
rule change as effecting a change described under Rule 19b-4(f)(6) 
under the Act,\3\ 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\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

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

    Nasdaq proposes to modify the Nasdaq Listing Rules to conform those 
rules with the prior Marketplace Rules and make certain technical 
corrections. 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, 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 IV 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
    On March 12, 2009, Nasdaq filed a proposed rule change to revise 
the rules relating to the qualification, listing, and delisting of 
companies listed on, or applying to list on, Nasdaq to improve the 
organization of the rules, eliminate redundancies and simplify the rule 
language.\4\ These rules (the ``New Listing Rules'') were effective 
April 13, 2009. Nasdaq has observed that the March filing introduced 
two inadvertent changes in the New Listing Rules. This filing modifies 
those rules to revert to the requirements as they previously existed 
\5\ and makes other technical and clarifying corrections to the rules.
---------------------------------------------------------------------------

    \4\ Securities Exchange Act Release No. 59663 (March 31, 2009), 
74 FR 15552 (April 6, 2009) (SR-NASDAQ-2009-018).
    \5\ The text of Nasdaq's prior rules is included in Exhibit 5B 
of SR-NASDAQ-2009-018, supra note 4, available at: https://nasdaq.cchwallstreet.com/NASDAQ/pdf/nasdaq-filings/2009/SR-NASDAQ-2009-018.pdf.
---------------------------------------------------------------------------

    Specifically, Nasdaq proposes to modify Rule 5405(b)(3)(A) to 
correct the requirement for companies seeking to list on the Nasdaq 
Global Market under the Market Value Standard. Previously, under Rule 
4420(c)(6)(A), a currently traded company that applied to list under 
this standard was required to meet the market value of listed 
securities requirement and the bid price requirement for 90 consecutive 
trading days prior to applying for listing. As adopted in Rule 
5405(b)(3)(A), this requirement was inadvertently changed to 90 
consecutive calendar days.
    In addition, Nasdaq proposes to modify Rules 5250(d) and 5615 and 
IM-5615-3 to allow a Foreign Private Issuer to follow its home country 
practice in lieu of the requirement to distribute interim and annual 
reports. Previously, the provision allowing Foreign Private Issuers to 
follow their home country practice applied to all of Rule 4350 (subject 
to certain specified exceptions), including the requirement to 
distribute reports set forth in prior Rule 4350(b).\6\ In the New 
Listing Rules, while most of the requirements of Rule 4350 were moved 
to the Rule 5600 Series, the requirement to distribute reports was 
moved to Rule 5250(d). However, no corresponding cross-reference was 
included to specify the ability of a Foreign Private Issuer to follow 
its home country practice in lieu of this requirement. The proposed 
rule change would correct that omission.
---------------------------------------------------------------------------

    \6\ See prior Rule 4350(a)(1). Note that under this rule, as 
with Rule 5615(a)(3), a foreign private issuer was required to 
comply with the requirement to disclose the receipt of an audit 
opinion that expresses doubt about the ability of the company to 
continue as a going concern, which was contained in prior Rule 
4350(b)(1)(B).
---------------------------------------------------------------------------

    Nasdaq also proposes to add a new Rule 5250(f), clarifying that 
companies listed on Nasdaq are required to pay their listing fees as a 
condition to continued listing.\7\ This proposed requirement, which was 
previously contained in Rules 4310(c)(13) and 4320(e)(11), would be 
analogous to the requirement contained in Rule 5210(d) applicable to 
companies applying to list on Nasdaq.
---------------------------------------------------------------------------

    \7\ Although New Listing Rules 5400 and 5500 contain the 
requirement for listed companies to pay fees, Nasdaq believes it 
would be more transparent to also include this requirement in the 
list of obligations for listed companies.
---------------------------------------------------------------------------

    Finally, Nasdaq proposes to make certain technical corrections. 
First, Nasdaq proposes to modify Rule 5255, relating to Direct 
Registration Programs, to eliminate a provision that expired on March 
31, 2009. In addition, Nasdaq proposes to correct certain typographical 
errors, such as adding omitted words, deleting repeated and unnecessary 
words, renumbering certain provisions, and correcting capitalization, 
spacing, punctuation and cross references in Rules 5000, 5600, 5615, 
5635, 5740, 5820, and 5900, IM-5615-2 and IM-5615-3.
2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with 
the provisions of Section 6 of the Act,\8\ in general and with Sections 
[sic] 6(b)(5) of the Act,\9\ in particular in that it is designed to 
prevent fraudulent and manipulative acts and practices, to promote just 
and equitable principles of trade, to foster cooperation and 
coordination with persons engaged in regulating, clearing, settling, 
processing information with respect to, and facilitating transactions 
in securities, to remove impediments to and perfect the mechanism of a 
free and open market and a national market system, and, in general, to 
protect investors and the public interest. The proposed rule change is 
designed to revert to the previously approved requirements of certain 
listing standards that were inadvertently changed when adopting the New 
Listing Rules and correct typographical errors in the rules.
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78f.
    \9\ 15 U.S.C. 78f(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, as amended.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

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

    Because the proposed rule change: (i) Does not significantly affect 
the protection of investors or the public interest; (ii) does not 
impose any significant burden on competition; and (iii) does not become 
operative for 30 days after the date of the filing, or such shorter 
time as the Commission may designate if consistent with the protection 
of investors and the public interest, the proposed rule change has 
become effective pursuant to Section

[[Page 23458]]

19(b)(3)(A) of the Act \10\ and Rule 19b-4(f)(6) thereunder.\11\
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78s(b)(3)(A).
    \11\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    A proposed rule change filed under Rule 19b-4(f)(6) normally may 
not become operative prior to 30 days after the date of filing.\12\ 
However, Rule 19b-4(f)(6)(iii) \13\ permits the Commission to designate 
a shorter time if such action is consistent with the protection of 
investors and the public interest. Nasdaq has requested that the 
Commission waive the 30-day operative delay. Nasdaq requests this 
waiver so that these corrections can be immediately operative, 
eliminating any potential confusion caused by the unintended changes in 
the New Listing Rules. Nasdaq further believes that the proposed rule 
change does not significantly affect the protection of investors or the 
public interest because it merely conforms the recently adopted Nasdaq 
listing rules with the previously approved Nasdaq rules and corrects 
typographical errors.
---------------------------------------------------------------------------

    \12\ 17 CFR 240.19b-4(f)(6)(iii). In addition, Rule 19b-
4(f)(6)(iii) requires that a self-regulatory organization submit to 
the Commission 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 business days prior to the date of filing 
of the proposed rule change, or such shorter time as designated by 
the Commission. Nasdaq has satisfied this requirement.
    \13\ Id.
---------------------------------------------------------------------------

    The Commission notes that the changes being proposed do not present 
any new regulatory issues. The changes simply conform recently revised 
listing rules to previously approved rules, correct typographical 
errors, and make certain clarifying changes. For these reasons, the 
Commission believes that waiving the 30-day operative delay is 
consistent with the protection of investors and the public interest, 
and designates the proposed rule change to be operative upon filing 
with the Commission.\14\
---------------------------------------------------------------------------

    \14\ For the purposes only of waiving the 30-day operative 
delay, the Commission has considered the proposed 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 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-2009-040 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2009-040. 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 Nasdaq. 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-2009-040 and should be submitted on or before 
June 9, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\15\
Florence E. Harmon,
Deputy Secretary.
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    \15\ 17 CFR 200.30-3(a)(12).
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[FR Doc. E9-11618 Filed 5-18-09; 8:45 am]
BILLING CODE 8010-01-P
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