[Federal Register Volume 67, Number 47 (Monday, March 11, 2002)]
[Notices]
[Pages 10949-10953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5781]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-45506; File No. SR-NASD-2002-18]


Self Regulatory Organizations; Notice of Filing of a Proposed 
Rule Change by the National Association of Securities Dealers, Inc., 
Relating to Member Transaction Fees

March 5,2002.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b4 thereunder,\2\ notice is hereby given that 
on February 5,2002, the National Association of Securities Dealers, 
Inc. (``NASD'') through its subsidiary, The Nasdaq Stock Market, Inc. 
(``Nasdaq'') filed with the Securities and Exchange Commission (``SEC'' 
or ``Commission'') the proposed rule change as described in Items I, 
II, and III below, which Items have been prepared by Nasdaq. 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 240.19b4.
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I. Self-Regulatory Organization's Statement of the Terms of 
Substance of the Proposed Rule Change

    In order to encourage NASD members to report their trades through 
Nasdaq, Nasdaq is proposing to charge lower transaction fees to market 
participants that use Nasdaq as their market of choice for trade 
reporting, while charging higher fees to market participants that avail 
themselves of Nasdaq's quotation montage or make limited use of its 
transaction execution systems but elect to report trades through other 
facilities.\3\ Nasdaq

[[Page 10950]]

requests that the Commission approve the proposal as an amendment to 
certain provisions of Nasdaq's pricing structure that are currently in 
effect on a pilot basis until October 31, 2002, with the proposal 
taking effect on the first day of the month immediately following 
approval by the Commission.\4\ The text of the proposed rule change is 
set forth below. Proposed new language is in italics; proposed 
deletions are in brackets.
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    \3\ Nasdaq believes that this proposed rule change establishes 
or changes a due, fee, or other charge imposed by a self-regulatory 
organization and conceivably could be designated as immediately 
effective under Section 19(b)(3)(A) of the Act, 15 U.S.C. 
78s(b)(3)(A). After discussions with Commission staff, Nasdaq 
determined that the proposed rule change should be filed under 
Section 19(b)(2), 15 U.S.C. 78s(b)(2), to provide an opportunity for 
a more extensive comment process. If the Commission approves this 
filing, however, Nasdaq reserves the right to file future 
modifications to the pricing structure proposed herein under Section 
19(b)(3)(A). See discussion infra at n.8.
    \4\ It should be noted that Nasdaq will file a new pricing 
structure for its SuperMontage system, which is expected to become 
operational later this year, and that the new pricing structure will 
replace the current pricing structure for the Nasdaq National Market 
Execution System (the ``NNMS'' or ``SuperSOES'') and SelectNet 
systems, including pricing pilots that are in effect. Certain 
aspects of the new pricing structure, however, may resemble the 
current structure.
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* * * * *
7010. System Services
    (a)(1) No change.
    (2) Market Data Revenue Sharing
    (A) For a pilot period lasting until October 31, 2002, [NASD 
members] Full Contribution Members (as defined in Rule 7010(i)(2)) 
shall receive a market data revenue sharing credit. The total credit 
shall be calculated in accordance with the following formula:

Credit = (0.80)  x  (Eligible Revenue)  x  (Member's Volume Percentage)

    (B) Definitions. The following definitions shall apply to this 
Rule:
    (i) ``Eligible Revenue'' shall mean:
    a. The portion of the net distributable revenues that Nasdaq, 
through the NASD, is eligible to receive under the Nasdaq UTP Plan, 
that is attributed to the Nasdaq Level 1 Service for Eligible 
Securities, minus
    b. The portion of the fee charged to Nasdaq by NASD Regulation, 
Inc. for regulatory services allocated to the Nasdaq Level 1 Service 
for Eligible Securities.
    (ii) ``Eligible Securities'' shall mean all Nasdaq National Market 
securities and any other security that meets the definition of 
``Eligible Security'' in the Nasdaq UTP Plan.
    (iii) ``Member's Volume Percentage'' shall mean the average of:
    a. The percentage derived from dividing the total number of trades 
in Eligible Securities that the member reports in accordance with NASD 
trade reporting rules to the Automated Confirmation Transaction Service 
(``ACT'') by the total number of trades in Eligible Securities reported 
to ACT by NASD members, and
    b. The percentage derived from dividing the total number of shares 
represented by trades in Eligible Securities that the member reports in 
accordance with NASD trade reporting rules to ACT by the total number 
of shares represented by all trades in Eligible Securities reported to 
ACT by NASD members.
    (iv) ``Nasdaq UTP Plan'' shall mean the Joint Self-Regulatory Plan 
Governing the Collection, Consolidation and Dissemination of Quotation 
and Transaction Information for Nasdaq-Listed Securities Traded on 
Exchanges on an Unlisted Trading Privilege Basis.
    (b)-(h) No change.
    (i) Transaction Execution Services
    (1) No change.
    (2) Nasdaq National Market Execution System (SuperSoes) \5\
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    \5\ In Securities Exchange Act Release No. 44391 (Oct. 12, 
2001), 66 FR 53276 (Oct. 19, 2001) (SR-NASD-2001-72), Nasdaq has 
proposed amending NASD Rule 7010(i)(2) to include a definition of 
``Participating UTP Exchange'' and to set the price for trade 
executions through the NNMS by Participating UTP Exchanges at $0.003 
per share. Nasdaq proposed to define ``Participating UTP Exchange'' 
as any registered national securities exchange that has unlisted 
trading privileges (a ``UTP Exchange'') in Nasdaq-listed securities 
pursuant to the Joint Self-Regulatory Plan Governing the Collection, 
Consolidation, and Dissemination of Quotation and Transaction 
Information for Nasdaq-Listed Securities Traded on an Unlisted 
Trading Privilege Basis (the ``Nasdaq UTP Plan'' or the ``Plan'') 
and that elects to participate in the NNMS. Nasdaq represents that 
depending on the order in which SR-NASD-2001-72 and this filing are 
approved, it will submit conforming amendments either to SR-NASD-
2001-72 or to this filing to reflect the approval of the other 
filing.
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    (A) The following charges shall apply to the use of the Nasdaq 
National Market Execution System:

Order Entry Charge--$0.10 per order entry (entering party only)
Per Share Charge--$0.001 per share executed for all fully or partially 
executed orders (entering party only)
Cancellation Fee--$0.25 per order cancelled (canceling party only)

    (B)(i) For a pilot period [commencing on November 1, 2001 and] 
lasting until October 31, 2002, the per share charge will be [$0.002 
per share executed for all fully or partially executed orders (entering 
party only).] determined as follows:

Full Contribution Members: $0.002 per share executed for all fully or 
partially executed orders (entering party only)

Partial Contribution Members: $0.0025 per share executed for all fully 
or partially executed orders (entering party only)

    (ii) Definitions. The following definitions shall apply to this 
Rule:
    a. ``Full Contribution Member'' shall mean an NASD member whose 
Reporting Percentage was at least 95% in the preceding month. Nasdaq 
will request that a member submit data demonstrating that it satisfies 
the definition of a Full Contribution Member if Nasdaq needs such data 
to determine whether a member is a Full Contribution Member. Nasdaq 
will deem a member that fails to submit such data upon request to be a 
Partial Contribution Member.
    b. ``Partial Contribution Member'' shall mean an NASD member whose 
Reporting Percentage was less than 95% in the preceding calendar month.
    c. ``Reporting Percentage'' shall mean the average of:
    (I) the percentage derived from dividing the total number of trades 
in Eligible Securities (as defined in NASD Rule 7010(a)(2)(B)) that a 
member reports in accordance with NASD trade reporting rules to the 
Automated Confirmation Transaction Service (``ACT'') by the total 
number of trades in Eligible Securities that such member reports to all 
self-regulatory organizations and securities information processors, 
and
    (II) the percentage derived from dividing the total number of 
shares represented by trades in Eligible Securities that such member 
reports in accordance with NASD trade reporting rules to ACT by the 
total number of shares represented by all trades in Eligible Securities 
that such member reports to all self-regulatory organizations and 
securities information processors.
    If Nasdaq determines that a member is causing a significant 
percentage of trades to be reported through an affiliate primarily for 
the purpose of maintaining its Reporting Percentage above 95%, Nasdaq 
will consider trades reported through such affiliate to be trades 
reported by the member for purposes of calculating the Reporting 
Percentage.
    (3)-(4) No change.
    (5) Quotation Updates
    (A) Except as provided in subparagraph (B), for a pilot period 
[commencing on February 1, 2002 and] lasting until October 31, 2002, a 
fee of $0.01 per quotation update will be charged to [NASD members] 
Full Contribution Members that post quotations in the Nasdaq quotation 
montage, and a fee of $0.02 per quotation update will be charged to 
Partial Contribution Members that post quotations in the Nasdaq 
quotation montage. A ``quotation update'' includes any change to the 
price or size of a displayed quotation or reserve size.
    (B) A quotation update fee will not be charged for a change in the 
displayed quotation or reserve size that is performed automatically by 
the Nasdaq

[[Page 10951]]

National Market Execution System (``NNMS'') when an execution against 
the quotation occurs (other than a change performed by the ``Autoquote 
Refresh'' functionality of the NNMS, for which a fee will be assessed).
    (j)-(p) No change.
* * * * *

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
    On September 28, 2001, Nasdaq filed proposed rule changes to make 
modifications to the pricing structure for the NNMS and SelectNet 
service.\6\ Nasdaq designed these changes as an interim modification to 
begin the process of aligning the charges to market participants for 
using the NNMS and SelectNet more closely with the costs of providing 
these services and the benefits that they provide to market 
participants. On October 4, 2001, Nasdaq filed additional rule changes 
to increase the per share charge for use of the NNMS and introduce a 
liquidity provider rebate for NASD members.\7\
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    \6\ See Securities Exchange Act Release No. 44899 (Oct. 2, 
2001), 66 FR 51707 (Oct. 10, 2001) (SR-NASD-2001-63); Securities 
Exchange Act Release No. 44898 (Oct. 2, 2001), 66 FR 51703 (Oct. 10, 
2001) (SR-NASD-2001-64).
    \7\ See Securities Exchange Act Release No. 44914 (Oct. 9, 
2001), 66 FR 52649 (Oct. 16, 2001) (SR-NASD-2001-68); Securities 
Exchange Act Release No. 44910 (Oct. 5,2001), 66 FR 52167 (Oct. 12, 
2001) (SR-NASD-2001-67).
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    On October 9, 2001, Nasdaq filed a proposed rule change--SR-NASD-
2001-71--to introduce a mechanism for sharing market data revenue with 
NASD members, to introduce a quotation update charge, and to modify the 
fees for use of the NNMS and the liquidity provider rebate in order to 
calibrate the level of fees and rebates to the contributions that types 
of members make to the support of the Nasdaq market.\8\ On November 29, 
2001, after discussions with Commission staff, Nasdaq withdrew SR-NASD-
2001-71 prior to the date scheduled for its implementation, December 1, 
2001, to allow Nasdaq to make adjustments to the mechanism for market 
data revenue sharing and the quotation update charge, and to provide 
interested persons with a greater opportunity to comment on aspects of 
the proposal concerning differentiation among members. On December 27, 
2001, Nasdaq refiled a proposal to introduce a quote update fee and 
market data revenue sharing program.\9\
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    \8\ See Securities Exchange Act Release No. 44918 (Oct. 10, 
2001), 66 FR 52814 (Oct. 17, 2001) (SR-NASD-2001-71). Nasdaq 
withdrew SR-NASD-2001-71 by letter dated November 29, 2001. Also on 
October 9, 2001, Nasdaq filed a proposed rule change to increase the 
per share charge payable by UTP Exchanges that use the NNMS. See 
Securities Exchange Act Release No. 44391 (Oct 12, 2001), 66 FR 
53276 (Oct. 19, 2001) (SR-NASD-2001-72).
    \9\ See Securities Exchange Act Release No. 45342 (Jan. 28, 
2002), 67 FR 5109 (Feb. 1, 2002) (SR-NASD-2001-96). The proposal was 
effective upon filing and was implemented on February 1, 2002.
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    In this filing, Nasdaq is offering incentives to market 
participants that support Nasdaq operations through trade reporting. 
The proposal delineates two types of members. A ``Full Contribution 
Member'' is defined as an NASD member that reports at least 95% of the 
trades that it reports through the Automated Confirmation Transaction 
System (``ACT''), Nasdaq's trade reporting system, either directly or 
as a result of an execution through a Nasdaq transaction execution 
system. The percentage would be measured with reference to both the 
total number of trades and the total number of shares represented by 
those trades. All other NASD members will be considered ``Partial 
Contribution Members'' under the proposal.
    A member's status will be evaluated on a monthly basis, with 
reference to trade reporting activity during the preceding month. 
Nasdaq will request that a member submit data demonstrating that it 
satisfies the definition of a Full Contribution Member if it needs such 
data to determine the status of a particular member, and will deem a 
member that fails to submit such data upon request to be a Partial 
Contribution Member.\10\ In addition, if Nasdaq determines that a 
member is causing a significant percentage of trades to be reported 
through an affiliate (i.e. a person that controls, is controlled by, or 
is under common control with a member) primarily for the purpose of 
maintaining its Reporting Percentage above 95%, Nasdaq will consider 
trades reported through such affiliate to be trades reported by the 
member for purposes of calculating the Reporting Percentage. This 
flexibility in the application of the rule is necessary to ensure that 
a member does not evade the intent of the rule by conducting non-Nasdaq 
business through an affiliate while retaining its own status as a Full 
Contribution Member for the business that it does conduct through 
Nasdaq.
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    \10\ To eliminate any administrative burdens associated with 
verification of a member's status, a member could authorize the NASD 
to certify its status to Nasdaq on the basis of Order Audit Trail 
System (``OATS'') data. Nasdaq, however, would not have access to 
the member's OATS data.
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    The per share charge for the execution of orders in the NNMS will 
remain $0.002 per share for Full Contribution Members, while Partial 
Contribution Members will pay $0.0025 per share.\11\ Nasdaq's new 
quotation update fee, which went into effect on February 1, 2002, will 
remain $0.01 per quotation update for Full Contribution Members but 
will be increased to $0.02 per update for Partial Contribution 
Members.\12\ Finally, Nasdaq's new market data revenue sharing program, 
which also went into effect on February 1, 2002, will be modified to 
make it available only to Full Contribution Members.
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    \11\ In SR-NASD-2001-72, Nasdaq proposed amending NASD Rule 
7010(i)(2) to provide that Participating UTP Exchanges will pay 
$0.003 per share for NNMS executions. Nasdaq proposed to define a 
``Participating UTP Exchange'' as any UTP Exchange that elects to 
participate in the NNMS. Other UTP Exchanges access the Nasdaq 
market through telephone linkages and therefore are not assessed 
charges for the use of Nasdaq transaction execution systems. 
Depending on the order in which SR-NASD-2001-72 and this filing are 
approved, Nasdaq will submit conforming amendments either to SR-
NASD-2001-72 or to this filing to reflect the approval of the other 
filing.
    \12\ However, quote updates that are performed automatically by 
SuperSOES as the result of trade executions would continue to be 
free for all members.
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    Nasdaq represents that it is proposing these changes to its pricing 
structure in order to meet the competitive challenges posed by UTP 
Exchanges. From 1986 until 1999, only the Chicago Stock Exchange, Inc. 
(``CHX'') traded Nasdaq-listed securities pursuant to the Nasdaq UTP 
Plan, and only on a very limited scale. In late 1999 and early 2000, 
however, trading volumes in Nasdaq securities expanded dramatically. As 
a result, five additional exchanges--the Cincinnati Stock Exchange, 
Inc. (``CSE''), the Philadelphia Stock Exchange, Inc. (``Phlx''), the 
Pacific Exchange, Inc. (``PCX''), the American Stock Exchange LLC 
(``AMEX''), and the Boston Stock Exchange, Inc. (``BSE'')--have 
commenced, or announced their intention to commence, trading of

[[Page 10952]]

Nasdaq-listed securities pursuant to unlisted trading privileges. 
Moreover, some UTP Exchanges are aggressively pursuing the trade 
reporting revenue associated with internalized trades and trades 
conducted through the facilities of electronic communications networks. 
Nasdaq has every intention of being an active participant in the 
competition for trade execution and reporting.
    Nasdaq represents that self-regulatory organization pricing 
structures routinely distinguish among members on the basis of level of 
usage of a particular system. For example, Nasdaq's current pricing for 
liability orders executed through its SelectNet service charges $0.90 
per order for the first 25,000 orders that a member executes during a 
month, but only $0.60 for the next 25,000, and $0.10 for the next 
200,000, with all remaining orders being free. Thus, a member that 
conducts a great deal of business through SelectNet will pay a lower 
per order charge than a member that conducts relatively little 
business.
    Similarly, the distinction between Full Contribution Members and 
Partial Contribution Members recognizes that although most members are 
well-integrated into Nasdaq's market structure and would therefore be 
considered Full Contribution Members, other members may choose not to 
use Nasdaq as their market of first choice for trade reporting. For 
example, a member may use Nasdaq's quotation montage to advertise 
available liquidity, but the quote may be accessed through non-Nasdaq 
systems and reported to a UTP Exchange. Nasdaq believes that it must 
ensure that the capacity of its quotation engine is adequate to support 
the member's quotation activity and it must finance the regulatory 
infrastructure that oversees the member's activities on Nasdaq and the 
market in general, but it would receive proportionately less revenue 
from the member than from a comparable member that reported trades 
through ACT. Accordingly, when a Partial Contribution Member chooses to 
use Nasdaq systems for quotation or trade execution, Nasdaq believes 
that it should be permitted to assess a higher charge than it does on a 
Full Contribution Member. The distinction between types of members is 
comparable to any other pricing structure that offers lower prices to 
regular users of a service but charges higher prices to less regular 
users. Unlike a system of volume-based discounts, however, the proposal 
would not disadvantage small firms that report most of their trades 
through Nasdaq but do not achieve a high volume.
2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with 
the Act, including section 15A(b)(5) of the Act,\13\ which requires 
that the rules of the NASD provide for the equitable allocation of 
reasonable fees, dues, and other charges among members and issuers and 
other persons using any facility or system which the NASD operates or 
controls, and section 15A(b)(6) of the Act,\14\ which requires rules 
that are not designed to permit unfair discrimination between 
customers, issuers, brokers or dealers. In Nasdaq's view, these 
provisions require Nasdaq to establish prices that provide similar 
treatment to similarly situated members; they do not require Nasdaq to 
provide identical treatment to all market participants without regard 
to their level of participation in the market.
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    \13\ 15 U.S.C. 78o-3(b)(5).
    \14\ 15 U.S.C. 78o-3(b)(6).
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    As the Commission has noted in the context of another self-
regulatory organization's fees, the Act ``prohibits `unfair 
discrimination,' not `discrimination' simpliciter * * *'' .\15\ Nasdaq 
believes that the proposed fee structure distinguishes among market 
participants in order to reward those who do the most to finance market 
innovations such as SuperSOES and who contribute the most to the 
liquidity and efficient operation of Nasdaq's market, while imposing 
higher fees on market participants that receive the benefits of posting 
quotations on Nasdaq systems but pay relatively little to support the 
operation of those systems. Thus, the economic incentives embodied by 
the new fee structure are designed to promote behavior that benefits 
both the market structure that Nasdaq offers to investors and Nasdaq as 
a business. As another self-regulatory organization noted when it 
established a credit available only to certain of its market 
participants, ``measures * * * designed to promote and encourage 
certain behaviors and/or discourage others * * * [are] an appropriate, 
nondiscriminatory business strategy.'' \16\
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    \15\ Securities Exchange Act Release No. 37250 (May 29, 1996), 
61 FR 28629 (June 5,1996) (SR-CBOE-96-23) (quoting Timpinaro v. SEC, 
2 F.3d 453, 456 (D.C. Cir. 1993)).
    \16\ Securities Exchange Act Release No. 44292 (May 11, 2001), 
66 FR 27715 (May 18, 2001) (SR-Phlx-2001-49).
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    Moreover, Nasdaq believes that the level of fees charged to market 
participants under the proposal is reasonable. By definition, a Partial 
Contribution Member will make less use of Nasdaq systems than a Full 
Contribution Member. Accordingly, assessing higher fees on the former 
will not result in the member paying unreasonably high fees for the 
services that it does obtain from Nasdaq.

B. Self-Regulatory Organization's Statement on Burden on Competition

    Nasdaq does not believe that the proposed rule change will impose 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act. Nasdaq believes that the 
proposal is designed as a reasonable response to the competitive 
challenges posed by UTP Exchanges. UTP Exchanges are actively seeking 
to encourage market participants to report trades in Nasdaq securities 
through their facilities. In order to remain competitive, Nasdaq 
believes that it must create incentives for market participants to 
report trades through Nasdaq.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    The Commission received a number of comment letters that referenced 
SR-NASD-2001-71, a proposed rule change that contained a proposal 
similar to the proposal contained in this filing but that was withdrawn 
prior to its implementation. SR-NASD-2001-71 was withdrawn for the 
specific purpose of allowing interested persons a greater opportunity 
to comment on the proposal in isolation from other changes to Nasdaq's 
pricing structure that were filed with SR-NASD-2001-71 and in other 
contemporaneous filings relating to Nasdaq fees. Accordingly, Nasdaq 
proposes to respond to any written comments received on the proposed 
rule change contained herein after the proposed rule change has been 
published for comment and the comment period has expired. Nasdaq did 
not solicit or receive written comments on the proposed rule change 
contained herein.

III. Date of Effectiveness of the Proposed Rule Change and Timing 
for Commission Action

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the NASD consents, the Commission will:
    (A) By order approve such proposed rule change, or
    (B) Institute proceedings to determine whether the proposed rule 
change should be disapproved.

[[Page 10953]]

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. 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 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 at the 
Commission's Public Reference Room. Copies of such filing will also be 
available for inspection and copying at the principal office of the 
NASD. All submissions should refer to File No. SR-NASD-2002-18 and 
should be submitted by April 1, 2002.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\17\
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    \17\ 17 CFR 200.30-3(a)(12).
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Jill M. Peterson,
Assistant Secretary.
[FR Doc. 02-5781 Filed 3-8-02; 8:45 am]
BILLING CODE 8010-01-U