Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change To Modify Fees for Members Using the NASDAQ Market Center, 55874-55875 [E9-26022]

Download as PDF 55874 Federal Register / Vol. 74, No. 208 / Thursday, October 29, 2009 / Notices A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change SECURITIES AND EXCHANGE COMMISSION [Release No. 34–60862; File No. SR– NASDAQ–2009–088] Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change To Modify Fees for Members Using the NASDAQ Market Center October 22, 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 October 13, 2009, The NASDAQ Stock Market LLC (‘‘NASDAQ’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change as described in Items I and II below, which Items have been substantially prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons, and is approving the proposal on an accelerated basis. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change NASDAQ proposes to modify pricing for NASDAQ members using the NASDAQ Market Center. NASDAQ proposes to implement this rule change as of October 1, 2009. The text of the proposed rule change is available at https://nasdaqomx.cchwallstreet.com/, at NASDAQ’s principal office, and at the Commission’s Public Reference Room. dcolon on DSK2BSOYB1PROD with NOTICES 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. 3 Securities Exchange Act Release No. 60570 (August 26, 2009), 74 FR 45504 (September 2, 2009) (SR–NASDAQ–2009–079). 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. VerDate Nov<24>2008 15:20 Oct 28, 2009 1. Purpose NASDAQ is proposing changes to the fees associated with the use of the NASDAQ Market Center. First, NASDAQ is proposing to modify the level of activity required to receive NASDAQ’s most favorable rate for accessing liquidity in securities listed on NASDAQ or the New York Stock Exchange (‘‘NYSE’’). During the months of August and September 2009, members paid a fee of $0.0027 per share executed if they had an average daily volume during the month of (i) more than 140 million shares of liquidity routed, removed and/or provided, and (ii) more than 35 million shares of liquidity provided. On October 1, 2009, the level of liquidity routed, removed and/or provided needed to receive the favorable rate had been scheduled to revert automatically to its pre-August level of 150 million shares. The 140 million share level for August and September 2009 had been established to reflect lower trading volumes anticipated during those months. Instead of allowing the rate to revert to 150 million shares, however, NASDAQ proposes to set the level at 145 million shares. As trading volumes revert to higher levels with the end of the summer, the change will make it easier for members to receive the favorable ‘‘take’’ rate. NASDAQ is also deleting obsolete fee language referencing NASDAQ Rule 4758(a)(1)(A), portions of which had formerly governed ‘‘flash’’ orders and were recently deleted.3 NASDAQ discontinued flash orders at the beginning of September 2009. Commission approval is required to make the change retroactive to the beginning of the month of October. NASDAQ notes that the change to the level of liquidity routed, removed and/ or provided needed to receive a favorable take rate will make it easier for members to obtain this rate than would have been the case in the absence of the change. Thus, the change effectively constitutes a price reduction for members that are able to achieve the 145 million share level but not able to achieve the 150 million share level. Accordingly, NASDAQ believes that the Commission should approve the filing on an accelerated basis to allow the change to be effective for the month of October 2009. Jkt 220001 PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 2. Statutory Basis NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,4 in general, and with Section 6(b)(4) of the Act,5 in particular, in that it 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 NASDAQ operates or controls. NASDAQ is adjusting the level of activity in NASDAQ required to receive its most favorable rate for accessing liquidity, making it easier for members to receive this rate. The impact of the change upon the net fees paid by a particular market participant will depend upon a number of variables, including the availability of liquidity at the NASDAQ Market Center, the prices of the market participant’s quotes and orders, and its overall volume of liquidity routed, removed and/or provided through NASDAQ. NASDAQ notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive. NASDAQ believes that its fees remain competitive with other venues and are reasonable and equitably allocated to those members on the basis of whether they opt to direct orders to NASDAQ. 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. 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 4 15 5 15 E:\FR\FM\29OCN1.SGM U.S.C. 78f. U.S.C. 78f(b)(4). 29OCN1 Federal Register / Vol. 74, No. 208 / Thursday, October 29, 2009 / Notices • Send an e-mail to rulecomments@sec.gov. Please include File Number SR–NASDAQ–2009–088 on the subject line. the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other parties using its facilities. The Commission notes that the Paper Comments changes outlined in this proposed rule • Send paper comments in triplicate change were also contained in an to Elizabeth M. Murphy, Secretary, September 30, 2009 submission by Securities and Exchange Commission, NASDAQ for immediate effectiveness 100 F Street, NE., Washington, DC pursuant to Section 19(b)(3)(A) 8 of the 20549–1090. Act and Rule 19b–4(f)(2) 9 thereunder; All submissions should refer to File however that submission was rejected Number SR–NASDAQ–2009–088. This because it was not filed in accordance file number should be included on the subject line if e-mail is used. To help the with the requirements of the Act and the rules and regulations thereunder.10 The Commission process and review your proposed fee changes would otherwise comments more efficiently, please use only one method. The Commission will qualify for immediate effectiveness post all comments on the Commission’s pursuant to Section 19(b)(3)(A) 11 of the Act and Rule 19b–4(f)(2).12 However, Internet Web site (https://www.sec.gov/ because the proposed rule change seeks rules/sro.shtml). Copies of the retroactive application of a fee change, submission, all subsequent amendments, all written statements NASDAQ filed pursuant to Section with respect to the proposed rule 19(b)(2) of the Act.13 change that are filed with the The Commission finds good cause, Commission, and all written consistent with Section 19(b)(2) of the communications relating to the Act,14 for approving the proposed rule proposed rule change between the change before the thirtieth day after the Commission and any person, other than date of publication of notice of filing those that may be withheld from the thereof in the Federal Register with public in accordance with the such approval retroactive to October 1, provisions of 5 U.S.C. 552, will be 2009. Retroactive approval of this available for inspection and copying in proposal allows the proposed rule the Commission’s Public Reference Room, on official business days between change to take effect for the month of October 2009. the hours of 10 a.m. and 3 p.m. Copies of the filing also will be available for V. Conclusion inspection and copying at the principal office of the Exchange. All comments It is therefore ordered, pursuant to received will be posted without change; Section 19(b)(2) of the Act, that the the Commission does not edit personal proposed rule change (SR–NASDAQ– identifying information from 2009–088) is hereby approved on an submissions. You should submit only accelerated basis. information that you wish to make For the Commission, by the Division of available publicly. All submissions Trading and Markets, pursuant to delegated should refer to File Number SR– authority.15 NASDAQ–2009–088 and should be Elizabeth M. Murphy, submitted on or before November 19, Secretary. 2009. dcolon on DSK2BSOYB1PROD with NOTICES IV. Commission’s Findings and Order Granting Accelerated Approval of a 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 national securities exchange.6 In particular, approval of the retroactive application of the proposal is consistent with Section 6(b)(4) of the Act,7 which requires that the rules of a national securities exchange provide for 6 In approving this proposed rule change, the Commission has considered the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). 7 15 U.S.C. 78f(b)(4). VerDate Nov<24>2008 15:20 Oct 28, 2009 Jkt 220001 [FR Doc. E9–26022 Filed 10–28–09; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–60863; File No. SR–BX– 2009–055] Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Order Approving a Proposed Rule Change To Retroactively Correct an Error in Rule 7018 October 22, 2009. On August 28, 2009, NASDAQ OMX BX, Inc. (the ‘‘Exchange’’ or ‘‘BX’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b-4 thereunder,2 a proposed rule change to apply retroactively to the period from April 1, 2009 through August 16, 2009 the correction made by SR–BX–2009–049 3 of an error formerly in Rule 7018. BX believes that all of its members that trade on the NASDAQ OMX BX Equities System are cognizant of the correct fee. BX has been billing members in accordance with the correct fee since the effective date of April 1, 2009 in a previous BX proposed rule change,4 but due to an error the credit incorrectly appeared as ‘‘$0.006’’ in Exhibit 5 to the BX Fee Filing. Notice of the proposed rule change was published for comment in the Federal Register on September 17, 2009.5 The Commission received no comments on the proposal. 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 exchange.6 In particular, the Commission finds that the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act,7 which requires, among other things, that the rules of a national securities exchange remove impediments to and perfect the mechanism of a free and open market and a national market system. The Commission believes the proposed rule change matches both the 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 See Securities Exchange Act Release No. 60603 (September 1, 2009), 74 FR 46266 (September 8, 2009) (SR–BX–2009–049). 4 See Securities Exchange Act Release No. 59682 (April 1, 2009), 74 FR 16015 (April 8, 2009) (SR– BX–2009–018) (‘‘BX Fee Filing’’). 5 See Securities Exchange Act Release No. 60634 (September 8, 2009), 74 FR 47849. 6 In approving this proposed rule change, the Commission has considered the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). 7 15 U.S.C. 78f(b)(5). 2 17 8 15 U.S.C. 78s(b)(3)(A). CFR 240.19b–4(f)(6). 10 See 19 CFR 240.19b–4 and 19 CFR 249.819 Appendix A. 11 15 U.S.C. 78s(b)(3)(A). 12 17 CFR 240.19b–4(f)(6). 13 15 U.S.C. 78s(b)(2). 14 Id. 15 17 CFR 200.30–3(a)(12). 9 17 PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 55875 E:\FR\FM\29OCN1.SGM 29OCN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 74, Number 208 (Thursday, October 29, 2009)]
[Notices]
[Pages 55874-55875]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-26022]

[[Page 55874]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60862; File No. SR-NASDAQ-2009-088]

Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Order Granting Accelerated Approval of Proposed
Rule Change To Modify Fees for Members Using the NASDAQ Market Center

October 22, 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 October 13, 2009, The NASDAQ Stock Market LLC (``NASDAQ'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been substantially prepared by the Exchange.
The Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons, and is approving the
proposal on an accelerated basis.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

NASDAQ proposes to modify pricing for NASDAQ members using the
NASDAQ Market Center. NASDAQ proposes to implement this rule change as
of October 1, 2009. The text of the proposed rule change is available
at https://nasdaqomx.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 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
NASDAQ is proposing changes to the fees associated with the use of
the NASDAQ Market Center. First, NASDAQ is proposing to modify the
level of activity required to receive NASDAQ's most favorable rate for
accessing liquidity in securities listed on NASDAQ or the New York
Stock Exchange (``NYSE''). During the months of August and September
2009, members paid a fee of $0.0027 per share executed if they had an
average daily volume during the month of (i) more than 140 million
shares of liquidity routed, removed and/or provided, and (ii) more than
35 million shares of liquidity provided. On October 1, 2009, the level
of liquidity routed, removed and/or provided needed to receive the
favorable rate had been scheduled to revert automatically to its pre-
August level of 150 million shares. The 140 million share level for
August and September 2009 had been established to reflect lower trading
volumes anticipated during those months. Instead of allowing the rate
to revert to 150 million shares, however, NASDAQ proposes to set the
level at 145 million shares. As trading volumes revert to higher levels
with the end of the summer, the change will make it easier for members
to receive the favorable ``take'' rate. NASDAQ is also deleting
obsolete fee language referencing NASDAQ Rule 4758(a)(1)(A), portions
of which had formerly governed ``flash'' orders and were recently
deleted.\3\ NASDAQ discontinued flash orders at the beginning of
September 2009.
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\3\ Securities Exchange Act Release No. 60570 (August 26, 2009),
74 FR 45504 (September 2, 2009) (SR-NASDAQ-2009-079).
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Commission approval is required to make the change retroactive to
the beginning of the month of October. NASDAQ notes that the change to
the level of liquidity routed, removed and/or provided needed to
receive a favorable take rate will make it easier for members to obtain
this rate than would have been the case in the absence of the change.
Thus, the change effectively constitutes a price reduction for members
that are able to achieve the 145 million share level but not able to
achieve the 150 million share level. Accordingly, NASDAQ believes that
the Commission should approve the filing on an accelerated basis to
allow the change to be effective for the month of October 2009.
2. Statutory Basis
NASDAQ believes that the proposed rule change is consistent with
the provisions of Section 6 of the Act,\4\ in general, and with Section
6(b)(4) of the Act,\5\ in particular, in that it 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 NASDAQ operates or controls. NASDAQ is adjusting the level of
activity in NASDAQ required to receive its most favorable rate for
accessing liquidity, making it easier for members to receive this rate.
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\4\ 15 U.S.C. 78f.
\5\ 15 U.S.C. 78f(b)(4).
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The impact of the change upon the net fees paid by a particular
market participant will depend upon a number of variables, including
the availability of liquidity at the NASDAQ Market Center, the prices
of the market participant's quotes and orders, and its overall volume
of liquidity routed, removed and/or provided through NASDAQ. NASDAQ
notes that it operates in a highly competitive market in which market
participants can readily direct order flow to competing venues if they
deem fee levels at a particular venue to be excessive. NASDAQ believes
that its fees remain competitive with other venues and are reasonable
and equitably allocated to those members on the basis of whether they
opt to direct orders to NASDAQ.

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. 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

[[Page 55875]]

Send an e-mail to rule-comments@sec.gov. Please include
File Number SR-NASDAQ-2009-088 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2009-088. 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 the
filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-NASDAQ-2009-088 and should be submitted on or before
November 19, 2009.

IV. Commission's Findings and Order Granting Accelerated Approval of a
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 national securities exchange.\6\ In
particular, approval of the retroactive application of the proposal is
consistent with Section 6(b)(4) of the Act,\7\ which requires that the
rules of a national securities exchange provide for the equitable
allocation of reasonable dues, fees, and other charges among its
members and issuers and other parties using its facilities.
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\6\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
\7\ 15 U.S.C. 78f(b)(4).
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The Commission notes that the changes outlined in this proposed
rule change were also contained in an September 30, 2009 submission by
NASDAQ for immediate effectiveness pursuant to Section 19(b)(3)(A) \8\
of the Act and Rule 19b-4(f)(2) \9\ thereunder; however that submission
was rejected because it was not filed in accordance with the
requirements of the Act and the rules and regulations thereunder.\10\
The proposed fee changes would otherwise qualify for immediate
effectiveness pursuant to Section 19(b)(3)(A) \11\ of the Act and Rule
19b-4(f)(2).\12\ However, because the proposed rule change seeks
retroactive application of a fee change, NASDAQ filed pursuant to
Section 19(b)(2) of the Act.\13\
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\8\ 15 U.S.C. 78s(b)(3)(A).
\9\ 17 CFR 240.19b-4(f)(6).
\10\ See 19 CFR 240.19b-4 and 19 CFR 249.819 Appendix A.
\11\ 15 U.S.C. 78s(b)(3)(A).
\12\ 17 CFR 240.19b-4(f)(6).
\13\ 15 U.S.C. 78s(b)(2).
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The Commission finds good cause, consistent with Section 19(b)(2)
of the Act,\14\ for approving the proposed rule change before the
thirtieth day after the date of publication of notice of filing thereof
in the Federal Register with such approval retroactive to October 1,
2009. Retroactive approval of this proposal allows the proposed rule
change to take effect for the month of October 2009.
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\14\ Id.
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V. Conclusion

It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
that the proposed rule change (SR-NASDAQ-2009-088) is hereby approved
on an accelerated basis.

For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
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\15\ 17 CFR 200.30-3(a)(12).
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Elizabeth M. Murphy,
Secretary.
[FR Doc. E9-26022 Filed 10-28-09; 8:45 am]
BILLING CODE 8011-01-P

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