[Federal Register Volume 66, Number 167 (Tuesday, August 28, 2001)]
[Notices]
[Pages 45347-45348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-21651]



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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-44734; File No. SR-NASD-2001-42)


Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change and Amendment No. 1 To Extend the 
Expiration Date of Nasdaq's Transaction Credit Pilot Program

August 22, 2001.
    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 June 27, 2001, the National Association of Securities Dealers, Inc. 
(``NASD'' or ``Association''), through its subsidiary The Nasdaq Stock 
Market, Inc. (``Nasdaq''), filed with the Securities and Exchange 
Commission (``Commission'' or ``SEC'') the proposed rule change as 
described in Items I, II, and III below, which Items have been prepared 
by Nasdaq. On August 17, 2001, Nasdaq amended the proposal.\3\ Nasdaq 
filed the proposal pursuant to Section 19(b)(3)(A) of the Act,\4\ and 
Rule 19b-4(f)(2) thereunder,\5\ which renders the proposal effective 
upon filing with the Commission.\6\ The Commission is publishing this 
notice to solicit comments on the proposed rule change, as amended, 
from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See August 16, 2001 letter from Mary Dunbar, Vice President, 
Nasdaq, to Katherine A. England, Assistant Director, Division of 
Market Regulation, SEC, and attachments (``Amendment No. 1''). 
Amendment No. 1 completely replaces and supersedes the original 
proposal.
    \4\ 15 U.S.C. 78s(b)(3)(A).
    \5\ 17 CFR 240.19b-4(f)(2).
    \6\ For purposes of calculating the 60-day abrogation period, 
the Commission considers the abrogation period to have commenced on 
August 17, 2001, the date that Nasdaq filed Amendment No. 1.
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I. Self-Regulatory Organization's Statement of the Terms of 
Substance of the Proposed Rule Change

    Nasdaq proposes to amend NASD Rule 7010, System Services, to extend 
Nasdaq's transaction credit pilot program (``Program'') for an 
additional six months (through September 1, 2001) for Tape A and B 
reports. No other substantive changes are proposed to the Program at 
this time. The text of the proposed rule change is available at the 
Association 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 proposes to extend the Program \7\ for an additional six 
months (through September 1, 2001) to provide a transaction credit to 
NASD members that exceed certain levels of trading activity in 
exchange-listed securities. Nasdaq's InterMarket is a quotation, 
communication, and execution system that allows NASD members to trade 
stocks listed on the New York Stock Exchange (``NYSE'') and the 
American Stock Exchange (``Amex'').\8\ The InterMarket competes with 
regional exchanges like the Chicago Stock Exchange (``CHX'') and the 
Cincinnati Stock Exchange (``CSE'') for retail order flow in stocks 
listed on the NYSE and the Amex. The Association collects trade reports 
from broker-dealers trading these securities in the over-the-counter 
(``OTC'') market and provides the trade reports to the Consolidated 
Tape Association (``CTA'') for inclusion in the Consolidated Tape. As a 
participant in the CTA Plan, the NASD is entitled to a portion of the 
revenue that the CTA generates by selling this market data information. 
NASD's share of the revenues is based on trades that it reports on 
behalf of these broker-dealers in NYSE-listed securities (``Tape A'') 
and in Amex-listed securities (``Tape B'').
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    \7\ The transaction credit can be applied to any and all charges 
imposed by NASD or its non-self-regulatory organization affiliates. 
Any remaining balance may be paid directly to the member.
    \8\ Nasdaq's InterMarket formerly was referred to as Nasdaq's 
Third Market, See Securities Exchange Act Release No. 42907 (June 7, 
2000), 65 FR 37445 (June 14, 2000) (SR-NASD-00-32).
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    The Program began in 1999.\9\ Under the Program, the NASD shares a 
portion of these tape revenues by providing a transaction credit to 
NASD members who exceed certain levels of OTC trading activity in NYSE 
and Amex securities. The Program helps InterMarket makers and investors 
lower costs associated with trading listed securities. The Program also 
is an important tool for Nasdaq to compete against other exchanges 
(particularly the CSE and the CHX) that offer similar programs \10\ and 
thereby maintain market share in listed securities.
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    \9\ See Securities Exchange Act Release No. 41174 (March 16, 
1999), 64 FR 14034 (March 23, 1999) (SR-NASD-99-13). The SEC issued 
notice of subsequent extensions of the Program. See Securities 
Exchange Act Release Nos. 42095 (November 3, 1999), 64 FR 61680 
(November 12, 1999) (SR-NASD-99-59); 42672 (April 12, 2000), 65 FR 
21225 (April 20, 2000) (SR-NASD-00-10); 42907 (June 7, 2000), 65 FR 
37445 (June 14, 2000) (SR-NASD-00-32); 43831 (January 10, 2001), 66 
FR 4882 (January 18, 2001) (SR-NASD-00-72); 44098 (March 23, 2000), 
66 FR 17462 (March 30, 2001) (SR-NASD-2001-15).
    \10\ See Securities Exchange Act Release Nos. 38237 (February 4, 
1997), 62 FR 6592 (February 12, 1997) (SR-CHX-97-01) and 39395 
(December 3, 1997), 62 FR 65113 (December 10, 1997) (SR-CSE-97-12).
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    The Program works as follows. Nasdaq calculates two separate pools 
of revenue from which credits can be earned: one representing 40% of 
the gross revenues received by the NASD from the CTA for providing 
trade reports in NYSE-listed securities executed in the InterMarket for 
dissemination by CTA (Tape A), the other representing 40% of the gross 
revenue received from CTA for reporting Amex trades (Tape B).
    Eligibility for transaction credits is based on concurrent 
quarterly trading activity. For example, an InterMarket participant 
that enters the market for Tape A or Tape B securities during a 
particular quarter and prints an average of 500 daily trades of Tape A 
securities during the time it is in the market, or that averages 500 
Tape B prints during such quarter, would be eligible to receive 
transaction credits based on its trades during that quarter. Only those 
NASD members that continue to average an appropriate daily execution 
level are eligible for transaction credits and thus able to receive a 
pro-rata portion of the appropriate pool.\11\ These thresholds permit 
the NASD to recover appropriate administrative costs related to NASD 
members that do not exceed the threshold and to provide an incentive to

[[Page 45348]]

NASD members to actively trade in these securities.
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    \11\ As explained in Nasdaq's original pilot filing, the 
qualification thresholds were selected based on Nasdaq's belief that 
such members represent clear examples of a member's commitment to 
operating in the InterMarket and competing for order flow. See 
Securities Exchange Act Release No. 41174 (March 16, 1999), 64 FR 
14034 (March 23, 1999) (SR-NASD-99-13). Nasdaq continues to believe 
that such threshold numbers represent clear examples of a member's 
commitment to operating in the InterMarket.
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    The current Program expired on June 30, 2001. Because the Program 
has helped Nasdaq maintain market share in listed securities. Nasdaq 
proposes to extend the current Program for an additional six months, 
through September 1, 2001.
2. Statutory Basis
    Nasdaq believes the proposed rule change is consistent with Section 
15A(b)(6) of the Act,\12\ in that the proposal is designed to promote 
just and equitable principles of trade and to remove impediments to and 
perfect the mechanism of a national market system, and, in general to 
protect investors and the public interest. Nasdaq also believes that 
the proposed rule change is consistent with Section 15A(b)(5) of the 
Act \13\ 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 Association operates or 
controls.
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    \12\ 15 U.S.C. 78o-3(b)(6).
    \13\ 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, 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 proposed rule change has become effective pursuant to Section 
19(b)(A)(ii) of the Act \14\ and subparagraph (f)(2) of Rule 10b-4 
thereunder,\15\ because it establishes or changes a due, fee, or other 
charge imposed by the Association. 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 proposal is 
consistent with the Act. Persons making written submissions should file 
six copies thereof with the Secretary, Securities and Exchange 
Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of 
the submission, all subsequent, 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. Copies of such filing will also be available for 
inspection and copying at the principal office of the Association. All 
submissions should refer to the file number SR-NASD-2001-42 and should 
be submitted by [insert date 21 days from the date of publication].
    For the Commission, by the Division of Market Regulations, pursuant 
to delegated authority.\16\
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    \14\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \15\ 17 CFR 240.196-4(f)(2).
    \16\ 17 CFR 200.30-3(a)(12).

Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 01-21651 Filed 8-27-01; 8:45 am]
BILLING CODE 8010-01-M