[Federal Register Volume 75, Number 241 (Thursday, December 16, 2010)]
[Notices]
[Pages 78789-78790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31633]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-63523; File No. SR-NASDAQ-2010-165]
Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Change Implementation Date for Direct Access Fees
December 10, 2010.
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 December 9, 2010, The NASDAQ Stock Market LLC (``NASDAQ'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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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 a rule change to assess ``direct access'' fees on
customers receiving NASDAQ data within NASDAQ's co-location facility
beginning on January 1, 2011, rather than December 1, 2010. Direct
access fees applicable to such customers were Noticed [sic] in SR-
NASDAQ-2010-152,\3\ immediately effective as of the filing on November
24, 2010, with an implementation date of December 1, 2010. In order to
assure complete and clear prior notification to all affected customers,
the Exchange is changing the implementation date of the fee schedule
change to January 1, 2011.
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\3\ Securities Exchange Act Release No. 63441 (December 6, 2010)
(SR-NASDAQ-2010-152).
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This change does not require a change in the language of the rule
itself.
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
[[Page 78790]]
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 the
Statutory Basis for, the Proposed Rule Change
1. Purpose
In SR-NASDAQ-2010-152,\4\ the Exchange amended its fee schedule to
correct an anomaly that effectively exempted certain customers residing
within NASDAQ's co-location facility from paying a monthly fee for
direct access to NASDAQ data, while customers that receive data from an
extranet and reside outside the co-location facility are assessed the
fee. The inequity was a result of the definition of ``direct access''
in the fee schedule, which did not by its terms clearly apply to data
feeds provided to customers through distributors located within the co-
located facility. That rule filing expanded the definition of ``direct
access'' and operated to assess the same direct access fee on all firms
that have access to NASDAQ's raw data feeds, whether co-located or not.
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\4\ Id.
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The Notice of Filing and Immediate Effectiveness for this fee
contained an implementation date of December 1, 2010. The effort to
identify and notify all customers potentially affected by this rule
change, however, has proven more time-consuming than expected. To
assure that all customers that will be assessed the direct access fee
have adequate prior notification, the Exchange is delaying
implementation of the fee until January 1, 2011. None of the co-located
customers that would have been newly subject to the direct access fee
during December 2010 as a result of the fee amendment in SR-NASDAQ-
2010-152 will be charged this fee during December 2010.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6 of the Act,\5\ in general, and with
Sections 6(b)(5) of the Act,\6\ in particular. 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 filing ensures clear and
complete prior notification to customers affected by a fee change that
permits transparent, uniform fees for direct access to Exchange data
for all customers, whether co-located or not.
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\5\ 15 U.S.C. 78f.
\6\ 15 U.S.C. 78f(b)(5).
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In addition, the Exchange believes that the proposed rule change is
consistent with the provisions of Section 6 of the Act,\7\ in general,
and with Section 6(b)(4) of the Act,\8\ 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 The [sic] Exchange operates or controls. The
Exchange notes that delayed implementation of the amendment will best
serve the interests of customers affected by the fee change.
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\7\ 15 U.S.C. 78f.
\8\ 15 U.S.C. 78f(b)(4).
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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
The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act.\9\ At any time within 60 days of the filing
of the proposed rule change, the Commission summarily may temporarily
suspend 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. If the Commission takes such action, the Commission shall
institute proceedings to determine whether the proposed rule should be
approved or disapproved.
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\9\ 15 U.S.C. 78s(b)(3)(a)(ii).
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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 http://www.sec.gov/rules/sro.shtml; or
Send an e-mail to [email protected]. Please include
File Number SR-NASDAQ-2010-165 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-2010-165. 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 (http://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 Web site
viewing and printing in the Commission's Public Reference Room, 100 F
Street, NE., Washington, DC 20549, on official business days between
the hours of 10 a.m. and 3 p.m. Copies of such filing also will be
available for inspection and copying at the principal office of the
Exchange. All comments received will be posted without change; the
Commission does not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-
NASDAQ-2010-165 and should be submitted on or before January 6, 2011.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\10\
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\10\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-31633 Filed 12-15-10; 8:45 am]
BILLING CODE 8011-01-P