[Federal Register Volume 68, Number 46 (Monday, March 10, 2003)]
[Notices]
[Pages 11422-11423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5564]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-47436; File No. SR-NASD-2003-26]


Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change by the National Association of 
Securities Dealers, Inc. To Extend a Pilot Program Regarding the 
Regulatory Fee and the Trading Activity Fee

March 4, 2003.
    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 February 28, 2003, the National Association of Securities Dealers, 
Inc. (``NASD'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I and 
II below, which Items have been prepared by the NASD. The NASD filed 
the proposal pursuant to Section 19(b)(3)(A) of the Act,\3\ and Rule 
19b-4(f)(6) thereunder,\4\ which renders the proposal effective upon 
filing with the Commission.\5\ 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).
    \4\ 17 CFR 240.19b-4(f)(6).
    \5\ The NASD asked the Commission to waive the five-day pre-
filing notice requirement and the 30-day operative delay. 17 CFR 
240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    NASD proposes to extend the pilot program for the Trading Activity 
Fee (``TAF'') through April 1, 2003. The TAF pilot program is currently 
in effect, and is set to expire on March 1, 2003.\6\ NASD has requested 
that the Commission approve SR-NASD-2002-148,\7\ so that the TAF will 
be made permanent before the expiration of the TAF pilot program on 
April 1, 2003. If the Commission does not approve SR-NASD-2002-148, the 
trading fee component of the member regulatory pricing structure will 
revert to Section 8 of Schedule A to the NASD By-Laws, as amended. The 
NASD is making no substantive changes to the pilot program, other than 
extending the expiration date through April 1, 2003.
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    \6\ See Securities Exchange Act Release No. 46416 (August 23, 
2002), 67 FR 55901 (August 30, 2002) (SR-NASD-2002-98). See also 
Securities Exchange Act Release No. 47112 (December 31, 2002), 68 FR 
824 (January 7, 2003)(SR-NASD-2002-182).
    \7\ See Securities Exchange Act Release No. 46817 (November 12, 
2002), 67 FR 69785 (November 19, 2002)(SR-NASD-2002-148).
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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 NASD 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 Association 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 July 24, 2002, the NASD filed SR-NASD-2002-98, which proposed a 
new member regulatory pricing structuring, including a new TAF, to 
replace the existing trading fee contained in Section 8 of Schedule A 
to the NASD By-Laws.\8\ The proposed rule change was effective upon 
filing with the Commission pursuant to Section 19(b)(3)(A)(ii) of the 
Act \9\ and Rule 19b-4(f)(2) \10\ thereunder. SR-NASD-2002-98 is 
currently in effect. Assessments under the new TAF were effective as of 
October 1, 2002, payable January 15, 2003.\11\ On October 18, 2002, the 
NASD established a sunset provision whereby the TAF established in SR-
NASD-2002-98 would cease to exist after December 31, 2002. At the same 
time, the NASD filed SR-NASD-2002-148, which is substantially similar 
to SR-NASD-2002-98, but filed under Section 19(b)(1) of the Act, to 
allow for additional member comment. Upon expiration of SR-NASD-2002-
98, the member regulatory pricing structure was to revert to Section 8 
of Schedule A to the NASD By-Laws, as amended.
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    \8\ See Securities Exchange Act Release No. 46416 (August 23, 
2002), 67 FR 55901 (August 30, 2002) (SR-NASD-2002-98). See also, 
Securities Exchange Act Release No. 46417 (August 23, 2002), 67 FR 
55893 (August 30, 2002) (SR-NASD-2002-99). The NASD also published 
three Notices to Members describing the proposed changes and 
addressing interpretive questions posed by NASD members. See Notices 
to Members 02-41 (July 2002), 02-63 (September 2002), and 02-75 
(November 2002).
    \9\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \10\ 17 CFR 240.19b-4(f)(2).
    \11\ Member firms were required to pay the TAF in accordance 
with the pilot program (for the first quarter starting October 1, 
2002) by no later than January 15, 2003, and thereafter on a monthly 
basis.
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    On December 24, 2002, the NASD extended the TAF pilot program 
through March 1, 2003. With the instant rule filing, the NASD is 
further extending the TAF pilot program through April 1, 2003, to allow 
additional time for the NASD to respond to comments to the original 
filing, and to allow the Commission more time to review issues 
presented by the permanent TAF proposed rule change (SR-NASD-2002-148). 
The NASD asks the Commission to approve SR-NASD-2002-148 before the 
expiration of the TAF pilot program on April 1, 2003, to make the TAF 
pilot permanent.
2. Statutory Basis
    The NASD believes that the proposed rule change is consistent with 
the provisions of Section 15A of the Act,\12\ in general, and with 
Section 15A(b)(5) of the Act,\13\ 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 that the NASD operates or controls.
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    \12\ 15 U.S.C. 78o-3.
    \13\ 15 U.S.C. 78o-3(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The NASD 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. Written 
comments, however, have been solicited on SR-NASD-2002-98, SR-NASD-
2002-147, SR-NASD-2002-148, and SR-NASD-2002-182. The comments are not 
addressed herein, but are, as appropriate, discussed in connection with 
the respective rule filings.

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

    Because the foregoing proposed rule change does not:

[[Page 11423]]

    (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 \14\ and 
Rule 19b-4(f)(6) thereunder.\15\ 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.
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    \14\ 15 U.S.C. 78s(b)(3)(A).
    \15\ 17 CFR 240.19b-4(f)(6).
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    The NASD has requested that the Commission waive the five-day pre-
filing notice requirement and the 30-day operative delay. The 
Commission believes waiving the five-day pre-filing notice requirement 
and the 30-day operative delay is consistent with the protection of 
investors and the public interest. Acceleration of the operative date 
will allow the pilot to operate without interruption through April 1, 
2003. For these reasons, the Commission designates the proposal to be 
effective and operative upon filing with the Commission.\16\
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    \16\ For purposes only of accelerating the operative date of 
this proposal, the Commission has considered the proposed rule's 
impact on efficiency, competition, and capital formation. 15 U.S.C. 
78c(f).
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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 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 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. 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 number SR-NASD-2003-26 and should be 
submitted by March 31, 2003.

    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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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 03-5564 Filed 3-7-03; 8:45 am]
BILLING CODE 8010-01-P