[Federal Register: October 15, 2004 (Volume 69, Number 199)]
[Notices]
[Page 61275-61276]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15oc04-127]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-50502; File No. SR-NASD-2004-49]
Self-Regulatory Organizations; Notice of Filing and Immediate
Effectiveness of Proposed Rule Change by the National Association of
Securities Dealers, Inc. To Establish Access Fees for Nasdaq's Brut
Facility
October 7, 2004.
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 4, 2004, the National Association of Securities Dealers,
Inc. (``NASD''), through its subsidiary, The Nasdaq Stock Market, Inc.
(``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 Nasdaq. Nasdaq has
designated this proposal as one establishing or changing a due, fee or
other charge imposed by the self-regulatory organization under Section
19(b)(3)(A)(ii) \3\ of the Act and Rule 19b-4(f)(2) thereunder,\4\
which renders the proposal effective upon filing with the Commission.
The Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 15 U.S.C. 78s(b)(3)(A)(ii).
\4\ 17 CFR 240.19b-4(f)(2).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
Nasdaq proposes to establish access fees for its Brut trading
facility. The text of the proposed rule change is available at the
Office of the Secretary, Nasdaq, and at the Commission.
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
Nasdaq represents that, on September 7, 2004, Nasdaq completed its
purchase of the Brut ECN (``Brut''). Once purchased by Nasdaq, Brut
became a ``facility'' of a national securities association,\5\ thereby
making the pricing for Brut's services subject to Section 15A(b)(5) of
the Act, which requires that the fees of a national securities
association be equitably allocated among members and issuers and other
persons using the facility.\6\ In this filing, Nasdaq proposes to
establish such a fee structure for members who access orders residing
in Brut's system. Under the proposal, Nasdaq will create a tiered fee
structure in which the per share fee charged to a member to access
liquidity in Brut will vary based on the amount of liquidity added to
Brut by that member. Members that provide an average daily volume of
50,000 shares or less over a calendar month will be charged $0.003 per
share when accessing liquidity in the Brut system for that same month.
Members that provide an average daily volume of 50,001 shares or more
over a calendar month will be charged $0.0027 per share when accessing
liquidity in the Brut system for that same month.
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\5\ See Section 3(a)(2) of the Act, 15 U.S.C. 78c(a)(2).
\6\ 15 U.S.C. 78o-3(b)(5). Nasdaq currently operates Brut
pursuant to a Temporary Conditional Exemption (``Exemption'') issued
by the Commission pursuant to Section 36(a) of the Act. See
Securities Exchange Act Release No. 50311 (September 3, 2004), 69 FR
54818 (September 10, 2004). The Exemption requires Nasdaq to file
proposed rule changes under Section 19(b) of the Act if it seeks to
modify Brut's fee schedule.
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Nasdaq believes that the above approach provides a uniform and
objective method to impose fees for accessing liquidity in the Brut
system that also encourages the provision of liquidity beneficial to
all members.
2. Basis
Nasdaq believes that the proposed rule change is consistent with
the provisions of Section 15A of the Act,\7\ in general, and with
Section 15A(b)(5) of
[[Page 61276]]
the Act,\8\ in particular, in that the proposed rule change provides
for the equitable allocation of reasonable dues, fees, and other
charges among members.
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\7\ 15 U.S.C. 78o-3.
\8\ 15 U.S.C. 78o-3(b)(5).
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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.
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 forgoing rule change is subject to Section 19(b)(3)(A)(ii) of
the Act \9\ and subparagraph (f)(2) of Rule 19b-4 \10\ thereunder
because it establishes or changes a due, fee, or other charge imposed
by the self-regulatory organization. Accordingly, the proposal is
effective upon Commission receipt of the filing. At any time within 60
days of the filing of such 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.\11\
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\9\ 15 U.S.C. 78s(b)(3)(A)(ii).
\10\ 17 CFR 240.19b-4(f)(2).
\11\ 15 U.S.C. 78s(b)(3)(C).
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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 rule-comments@sec.gov. Please include
File Number SR-NASD-2004-149 on the subject line.
Paper Comments
Send paper comments in triplicate to Jonathan G. Katz,
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW.,
Washington, DC 20549-0609.
All submissions should refer to File Number SR-NASD-2004-149. 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 inspection and
copying in the Commission's Public Reference Section, 450 Fifth Street,
NW., Washington, DC 20549. Copies of such filing also will be available
for inspection and copying at the principal office of the NASD. 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-NASD-2004-149 and should be
submitted on or before November 5, 2004.
For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\12\
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\12\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. E4-2655 Filed 10-14-04; 8:45 am]
BILLING CODE 8010-01-P