Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing of Proposed Rule Change To Amend Rules 3330 and 9810 To Reflect Changes to Corresponding FINRA Rules, 3948-3950 [2010-1267]
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3948
Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Notices
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 an Open Meeting
on January 27, 2010 at 10 a.m., in the
Auditorium, Room L–002.
The subject matter of the Open
Meeting will be:
Item 1: The Commission will consider
a recommendation to adopt new rules,
rule amendments, and a new form
under the Investment Company Act of
1940 governing money market funds, to
increase the protection of investors,
improve fund operations, and enhance
fund disclosures.
Item 2: The Commission will consider
a recommendation to publish an
interpretive release to provide guidance
to public companies regarding the
Commission’s current disclosure
requirements concerning matters
relating to climate change.
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: January 20, 2010.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2010–1434 Filed 1–21–10; 11:15 am]
BILLING CODE 8011–01–P
scheduled matters at the Closed
Meeting.
Commissioner Aguilar, as duty
officer, voted to consider the items
listed for the Closed Meeting in a closed
session.
The subject matter of the Closed
Meeting scheduled for Thursday,
January 28, 2010 will be:
Institution and settlement of injunctive
actions;
Institution and settlement of
administrative proceedings;
adjudicatory matters; and
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: January 21, 2010.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2010–1456 Filed 1–21–10; 4:15 pm]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[File No. 500–1]
Big Sky Energy Corp., Biomedical
Waste Systems, Inc., Biometrics
Security Technology, Inc., Biosys, Inc.,
Bolder Technologies Corp., Boyds
Wheels, Inc., Breakaway Solutions,
Inc., and BRE–X Minerals, Ltd.; Order
of Suspension of Trading
January 21, 2010.
SECURITIES AND EXCHANGE
COMMISSION
jlentini on DSKJ8SOYB1PROD with NOTICES
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, January 28, 2010 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 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
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It appears to the Securities and
Exchange Commission that there is a
lack of current and accurate information
concerning the securities of Big Sky
Energy Corp. because it has not filed
any periodic reports since the period
ended December 31, 2006.
It appears to the Securities and
Exchange Commission that there is a
lack of current and accurate information
concerning the securities of Biomedical
Waste Systems, Inc. because it has not
filed any periodic reports since the
period ended March 31, 1995.
It appears to the Securities and
Exchange Commission that there is a
lack of current and accurate information
concerning the securities of Biometrics
Security Technology, Inc. because it has
not filed any periodic reports since
December 31, 2002.
It appears to the Securities and
Exchange Commission that there is a
lack of current and accurate information
PO 00000
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Fmt 4703
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concerning the securities of Biosys, Inc.
because it has not filed any periodic
reports since the period ended
September 30, 1996.
It appears to the Securities and
Exchange Commission that there is a
lack of current and accurate information
concerning the securities of Bolder
Technologies Corp. because it has not
filed any periodic reports since the
period ended September 30, 2000.
It appears to the Securities and
Exchange Commission that there is a
lack of current and accurate information
concerning the securities of Boyds
Wheels, Inc. because it has not filed any
periodic reports since the period ended
September 30, 1997.
It appears to the Securities and
Exchange Commission that there is a
lack of current and accurate information
concerning the securities of Breakaway
Solutions, Inc. because it has not filed
any periodic reports since the period
ended December 31, 2000.
It appears to the Securities and
Exchange Commission that there is a
lack of current and accurate information
concerning the securities of BRE–X
Minerals, Ltd. because it has not filed
any periodic reports since the period
ended August 19, 1996.
The Commission is of the opinion that
the public interest and the protection of
investors require a suspension of trading
in the securities of the above-listed
companies.
Therefore, it is ordered, pursuant to
Section 12(k) of the Securities Exchange
Act of 1934, that trading in the
securities of the above-listed companies
is suspended for the period from 9:30
a.m. EST on January 21, 2010, through
11:59 p.m. EST on February 3, 2010.
By the Commission.
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2010–1441 Filed 1–21–10; 11:15 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–61371; File No. SR–
NASDAQ–2010–005]
Self-Regulatory Organizations; The
NASDAQ Stock Market LLC; Notice of
Filing of Proposed Rule Change To
Amend Rules 3330 and 9810 To Reflect
Changes to Corresponding FINRA
Rules
January 15, 2010.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
E:\FR\FM\25JAN1.SGM
25JAN1
Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Notices
(‘‘Act’’),1 and Rule 19b–4 thereunder,2
notice is hereby given that on January
13, 2010, The NASDAQ Stock Market
LLC (the ‘‘Exchange’’ or ‘‘NASDAQ’’)
filed with the Securities and Exchange
Commission (‘‘Commission’’) the
proposed rule change as described in
Items I, II, and III 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
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
The Exchange is filing this proposed
rule change to amend NASDAQ Rules
3330 (Payment Designed to Influence
Market Prices, Other than Paid
Advertising) and 9810 (Initiation of
Proceeding) to reflect recent changes to
corresponding rules of the Financial
Industry Regulatory Authority
(‘‘FINRA’’). The text of the proposed rule
change is available at https://
nasdaqomxbx.cchwallstreet.com, at the
Exchange’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.
jlentini on DSKJ8SOYB1PROD with NOTICES
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
Many of NASDAQ’s rules are based
on rules of FINRA (formerly the
National Association of Securities
Dealers (‘‘NASD’’)). During 2008, FINRA
embarked on an extended process of
moving rules formerly designated as
‘‘NASD Rules’’ into a consolidated
1 15
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 17 CFR 240.19b–4(f)(6).
2 17
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16:23 Jan 22, 2010
Jkt 220001
FINRA rulebook. In most cases, FINRA
has renumbered these rules, and in
some cases has substantively amended
them. Accordingly, NASDAQ also
proposes to initiate a process of
modifying its rulebook to ensure that
NASDAQ rules corresponding to
FINRA/NASD rules continue to mirror
them as closely as practicable. In some
cases, it will not be possible for the rule
numbers of NASDAQ rules to mirror
corresponding FINRA rules, because
existing or planned NASDAQ rules
make use of those numbers. However,
wherever possible, NASDAQ plans to
update its rules to reflect changes to
corresponding FINRA rules.
This filing addresses NASDAQ Rules
3330 (Payment Designed to Influence
Market Prices, Other than Paid
Advertising) and 9810 (Initiation of
Proceeding) to update cross-references
to corresponding rules of FINRA.
In SR–FINRA–2009–078,4 FINRA
made changes that reflected, among
other things, incorporation into the
consolidated FINRA rulebook of NASD
Rule 3330 as FINRA Rule 5230
(Payments Involving Publications that
Influence the Market Price of a
Security) 5 and NASD Rule 2330 as
FINRA Rule 2150 (Improper Use of
Customers’ Securities or Funds;
Prohibition Against Guarantees and
Sharing in Accounts).6
NASD Rule 3330 prohibits a member
from giving, or offering to give, anything
of value to any person for the purpose
of influencing or rewarding the action of
such person in connection with the
publication or circulation in any
newspaper, investment service, or
similar publication, of any matter that
has, or is intended to have, an effect
upon the market price of any security;
and provides an exception for any
matter that is clearly distinguishable as
paid advertising. As part of transferring
NASD Rule 3330 into the consolidated
FINRA rulebook as FINRA Rule 5230,
FINRA proposed two changes to the rule
to modernize its terms and clarify its
scope by: (a) Updating the list of media
to which the rule refers to include
electronic and other types of media,
including magazines, Web sites, and
television programs; and (b) expanding
the exceptions in the rule beyond paid
4 See Securities Exchange [sic] Release No. 61087
(December 1, 2009), 74 FR 65190 (December 9,
2009)(SR–FINRA–2009–078)(notice of filing and
immediate effectiveness).
5 See Securities Exchange Act Release No. 60648
(September 10, 2009), 74 FR 47837 (September 17,
2009)(SR–FINRA–2009–048)(order approving
adoption of FINRA Rule 5230).
6 See Securities Exchange Act Release No. 60701
(September 21, 2009); 74 FR 49425 (September 28,
2009)(SR–FINRA–2009–014)(order approving
adoption of FINRA Rule 2150).
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3949
advertising to also include
compensation paid in connection with
research reports and communications
published in reliance on Section 17(b)
of the Securities Act of 1933 (the ‘‘1933
Act’’).
NASDAQ is, by this filing, renumbering its Rule 3330 to Rule 5230A
and upgrading its rule by clarifying that
the media the rule refers to includes
electronic and other types of media and
expanding the exceptions in the rule
beyond paid advertising.
NASD Rule 2330 prohibits members
and associated persons from: (a) Making
improper use of a customer’s securities
or funds; (b) guaranteeing a customer
against loss in connection with any
securities transaction or in any
securities account of the customer; and
(c) sharing in the profits or losses in the
customer’s account except under certain
limited conditions specified in the Rule.
As part of transferring NASD Rule 2330
into the consolidated FINRA rulebook
as FINRA Rule 2150, FINRA proposed
minor changes to Rule 2150(c) and
added Supplementary Information to
the rule that codified existing staff
guidance in respect of when a guarantee
is not subject to prohibition, when a
member can reimburse for transaction
losses, correction of bona fide errors,
and preservation of written
authorizations.7
NASDAQ has proposed, in a recent
immediately effective filing,8 to renumber its Rule 2330 and IM–2330 to
Rule 2150 and IM–2150, respectively;
clarify cross-references in its rule and
IM; and reflect the changes to FINRA
Rule 2150. NASDAQ is, by this filing,
clarifying the cross-reference in its Rule
9810 to NASDAQ Rule 2150.
2. Statutory Basis
The Exchange believes that the
proposed rule change is consistent with
the provisions of Section 6 of the Act,9
7 Supplementary Material to FINRA Rule 2150
states: (i) A ‘‘guarantee’’ extended to all holders of
a security by an issuer as part of that security
generally would not be subject to the prohibition
against guarantees and that a permissible sharing
arrangement remains subject to other applicable
FINRA rules; (ii) the rule does not preclude a
member from determining on an after-the-fact basis,
to reimburse a customer for transaction losses,
provided however that the member shall comply
with all reporting requirements that may be
applicable to such payment; (iii) the rule does not
preclude a member from correcting a bona fide
error; and (iv) the required written authorization(s)
shall be preserved for a period of at least six years
after the date the account is closed, which is
consistent with the retention period under the Act
for similar records.
8 See Securities Exchange [sic] Release No. 61128
(December 8, 2009), 74 FR 66191 (December 14,
2009)(SR–NASDAQ–2009–106)(notice of filing and
immediate effectiveness).
9 15 U.S.C. 78f.
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3950
Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Notices
in general, and with Sections 6(b)(5) of
the Act,10 in particular, in that the
proposal 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 changes will conform
NASDAQ Rules 3330 and 9810 to recent
changes made to several corresponding
FINRA rules, to promote application of
consistent regulatory standards.
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, 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 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 11 and Rule 19b–
4(f)(6) thereunder.12
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.
jlentini on DSKJ8SOYB1PROD with NOTICES
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:
SECURITIES AND EXCHANGE
COMMISSION
Electronic Comments
[Release No. 34–61368; File No. SR–ISE–
2009–87]
• 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–2010–005 on the
subject line.
Self-Regulatory Organizations;
International Securities Exchange,
LLC; Order Approving Proposed Rule
Change Relating to Foreign Currency
Options
Paper Comments
I. Introduction
On October 27, 2009, the International
Securities Exchange, LLC (‘‘ISE’’ or
‘‘Exchange’’) filed with the Securities
and Exchange Commission
(‘‘Commission’’), pursuant to Section
19(b)(1) of the Securities Exchange Act
All submissions should refer to File
of 1934 (‘‘Act’’) 1 and Rule 19b–4
Number SR–NASDAQ–2010–005. This
thereunder,2 a proposed rule change to
file number should be included on the
amend its rules regarding Foreign
subject line if e-mail is used. To help the Currency Options (‘‘FX Options’’) to
Commission process and review your
permit the Exchange to list a single
comments more efficiently, please use
strike price of one cent ($0.01) for each
only one method. The Commission will expiration month for FX Options
post all comments on the Commission’s opened for trading on the Exchange. The
Internet Web site (https://www.sec.gov/
proposed rule change was published for
rules/sro.shtml). Copies of the
comment in the Federal Register on
submission, all subsequent
November 24, 2009.3 The Commission
amendments, all written statements
received no comment letters on the
with respect to the proposed rule
proposal. This order approves the
change that are filed with the
proposed rule change.
Commission, and all written
II. Description of the Proposal
communications relating to the
proposed rule change between the
ISE Rule 2205 governs the opening for
Commission and any person, other than trading of series of FX Options.4
those that may be withheld from the
Pursuant to ISE Rule 2205, after a class
public in accordance with the
of options contracts on any underlying
provisions of 5 U.S.C. 552, will be
currency pair has been approved for
available for inspection and copying in
listing and trading, the Exchange may
the Commission’s Public Reference
open for trading series of FX Options
Room on official business days between that expire in consecutive monthly
the hours of 10 a.m. and 3 p.m. Copies
intervals, in three or ‘‘cycle’’ month
of such filing also will be available for
intervals, or that have up to 36 months
inspection and copying at the principal
to expiration. The Exchange also may
office of NASDAQ. All comments
open additional consecutive month
received will be posted without change; series of the same class for trading at or
the Commission does not edit personal
about the time a prior consecutive
identifying information from
month series expires.
submissions. You should submit only
ISE now proposes to amend ISE Rule
information that you wish to make
2205 to allow the Exchange to list a
available publicly. All submissions
single strike price of one cent ($0.01) for
should refer to File Number SR–
each expiration month for FX Options
NASDAQ–2010–005 and should be
opened for trading on the Exchange. The
submitted on or before February 16,
proposed one cent strike would be in
2010.
addition to the strike prices listed by the
Exchange pursuant to ISE Rule 2205.
For the Commission, by the Division of
• Send paper comments in triplicate
to Elizabeth M. Murphy, Secretary,
Securities and Exchange Commission,
Station Place, 100 F Street, NE.,
Washington, DC 20549–1090.
Trading and Markets, pursuant to delegated
authority.13
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010–1267 Filed 1–22–10; 8:45 am]
BILLING CODE 8011–01–P
10 15
U.S.C. 78f(b)(5).
U.S.C. 78s(b)(3)(A).
12 17 CFR 240.19b–4(f)(6).
11 15
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16:23 Jan 22, 2010
13 17
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January 15, 2010.
PO 00000
CFR 200.30–3(a)(12).
Frm 00061
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1 15
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 Securities Exchange Act Release No. 61024
(November 18, 2009), 74 FR 61395 (November 24,
2009).
4 ISE began trading FX options on April 17, 2007.
See Securities Exchange Act Release No. 55575
(April 3, 2007), 72 FR 17963 (April 10, 2007) (SR–
ISE–2006–59) (the ‘‘FX Options Order’’).
2 17
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]]>Agencies
[Federal Register Volume 75, Number 15 (Monday, January 25, 2010)]
[Notices]
[Pages 3948-3950]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-1267]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-61371; File No. SR-NASDAQ-2010-005]
Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing of Proposed Rule Change To Amend Rules 3330 and 9810
To Reflect Changes to Corresponding FINRA Rules
January 15, 2010.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
[[Page 3949]]
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on January 13, 2010, The NASDAQ Stock Market LLC (the ``Exchange'' or
``NASDAQ'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III 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 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
The Exchange is filing this proposed rule change to amend NASDAQ
Rules 3330 (Payment Designed to Influence Market Prices, Other than
Paid Advertising) and 9810 (Initiation of Proceeding) to reflect recent
changes to corresponding rules of the Financial Industry Regulatory
Authority (``FINRA''). The text of the proposed rule change is
available at https://nasdaqomxbx.cchwallstreet.com, at the Exchange'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
Many of NASDAQ's rules are based on rules of FINRA (formerly the
National Association of Securities Dealers (``NASD'')). During 2008,
FINRA embarked on an extended process of moving rules formerly
designated as ``NASD Rules'' into a consolidated FINRA rulebook. In
most cases, FINRA has renumbered these rules, and in some cases has
substantively amended them. Accordingly, NASDAQ also proposes to
initiate a process of modifying its rulebook to ensure that NASDAQ
rules corresponding to FINRA/NASD rules continue to mirror them as
closely as practicable. In some cases, it will not be possible for the
rule numbers of NASDAQ rules to mirror corresponding FINRA rules,
because existing or planned NASDAQ rules make use of those numbers.
However, wherever possible, NASDAQ plans to update its rules to reflect
changes to corresponding FINRA rules.
This filing addresses NASDAQ Rules 3330 (Payment Designed to
Influence Market Prices, Other than Paid Advertising) and 9810
(Initiation of Proceeding) to update cross-references to corresponding
rules of FINRA.
In SR-FINRA-2009-078,\4\ FINRA made changes that reflected, among
other things, incorporation into the consolidated FINRA rulebook of
NASD Rule 3330 as FINRA Rule 5230 (Payments Involving Publications that
Influence the Market Price of a Security) \5\ and NASD Rule 2330 as
FINRA Rule 2150 (Improper Use of Customers' Securities or Funds;
Prohibition Against Guarantees and Sharing in Accounts).\6\
---------------------------------------------------------------------------
\4\ See Securities Exchange [sic] Release No. 61087 (December 1,
2009), 74 FR 65190 (December 9, 2009)(SR-FINRA-2009-078)(notice of
filing and immediate effectiveness).
\5\ See Securities Exchange Act Release No. 60648 (September 10,
2009), 74 FR 47837 (September 17, 2009)(SR-FINRA-2009-048)(order
approving adoption of FINRA Rule 5230).
\6\ See Securities Exchange Act Release No. 60701 (September 21,
2009); 74 FR 49425 (September 28, 2009)(SR-FINRA-2009-014)(order
approving adoption of FINRA Rule 2150).
---------------------------------------------------------------------------
NASD Rule 3330 prohibits a member from giving, or offering to give,
anything of value to any person for the purpose of influencing or
rewarding the action of such person in connection with the publication
or circulation in any newspaper, investment service, or similar
publication, of any matter that has, or is intended to have, an effect
upon the market price of any security; and provides an exception for
any matter that is clearly distinguishable as paid advertising. As part
of transferring NASD Rule 3330 into the consolidated FINRA rulebook as
FINRA Rule 5230, FINRA proposed two changes to the rule to modernize
its terms and clarify its scope by: (a) Updating the list of media to
which the rule refers to include electronic and other types of media,
including magazines, Web sites, and television programs; and (b)
expanding the exceptions in the rule beyond paid advertising to also
include compensation paid in connection with research reports and
communications published in reliance on Section 17(b) of the Securities
Act of 1933 (the ``1933 Act'').
NASDAQ is, by this filing, re-numbering its Rule 3330 to Rule 5230A
and upgrading its rule by clarifying that the media the rule refers to
includes electronic and other types of media and expanding the
exceptions in the rule beyond paid advertising.
NASD Rule 2330 prohibits members and associated persons from: (a)
Making improper use of a customer's securities or funds; (b)
guaranteeing a customer against loss in connection with any securities
transaction or in any securities account of the customer; and (c)
sharing in the profits or losses in the customer's account except under
certain limited conditions specified in the Rule. As part of
transferring NASD Rule 2330 into the consolidated FINRA rulebook as
FINRA Rule 2150, FINRA proposed minor changes to Rule 2150(c) and added
Supplementary Information to the rule that codified existing staff
guidance in respect of when a guarantee is not subject to prohibition,
when a member can reimburse for transaction losses, correction of bona
fide errors, and preservation of written authorizations.\7\
---------------------------------------------------------------------------
\7\ Supplementary Material to FINRA Rule 2150 states: (i) A
``guarantee'' extended to all holders of a security by an issuer as
part of that security generally would not be subject to the
prohibition against guarantees and that a permissible sharing
arrangement remains subject to other applicable FINRA rules; (ii)
the rule does not preclude a member from determining on an after-
the-fact basis, to reimburse a customer for transaction losses,
provided however that the member shall comply with all reporting
requirements that may be applicable to such payment; (iii) the rule
does not preclude a member from correcting a bona fide error; and
(iv) the required written authorization(s) shall be preserved for a
period of at least six years after the date the account is closed,
which is consistent with the retention period under the Act for
similar records.
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NASDAQ has proposed, in a recent immediately effective filing,\8\
to re-number its Rule 2330 and IM-2330 to Rule 2150 and IM-2150,
respectively; clarify cross-references in its rule and IM; and reflect
the changes to FINRA Rule 2150. NASDAQ is, by this filing, clarifying
the cross-reference in its Rule 9810 to NASDAQ Rule 2150.
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\8\ See Securities Exchange [sic] Release No. 61128 (December 8,
2009), 74 FR 66191 (December 14, 2009)(SR-NASDAQ-2009-106)(notice of
filing and immediate effectiveness).
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2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6 of the Act,\9\
[[Page 3950]]
in general, and with Sections 6(b)(5) of the Act,\10\ in particular, in
that the proposal 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 changes will conform NASDAQ Rules 3330 and 9810
to recent changes made to several corresponding FINRA rules, to promote
application of consistent regulatory standards.
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\9\ 15 U.S.C. 78f.
\10\ 15 U.S.C. 78f(b)(5).
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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, 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 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 \11\ and Rule 19b-
4(f)(6) thereunder.\12\
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\11\ 15 U.S.C. 78s(b)(3)(A).
\12\ 17 CFR 240.19b-4(f)(6).
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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-2010-005 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-2010-005. 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-2010-005 and should be submitted on or before
February 16, 2010.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\13\
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\13\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-1267 Filed 1-22-10; 8:45 am]
BILLING CODE 8011-01-P
