[Federal Register Volume 69, Number 24 (Thursday, February 5, 2004)]
[Notices]
[Pages 5631-5632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2332]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-49134; File No. SR-NASD-2003-199]


Self-Regulatory Organizations; Notice of Filing of Proposed Rule 
Change by the National Association of Securities Dealers, Inc. Relating 
to Listing Fee Waivers

January 28, 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 December 29, 2003, 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'') 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 from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    Nasdaq proposes to waive retroactively certain listing fees. Below 
is the text of the proposed rule change. Proposed new language is 
underlined.
* * * * *

4500 Issuer Listing Fees

IM-4500-2 Waiver of Fees Upon Application in Certain Merger Situations 
Occurring in 2003

    Rules 4510(c)(2), 4510(d)(3), and 4520(d)(3) provide Nasdaq with 
the discretion to waive all or part of the annual listing fees 
prescribed in this Rule 4500 series. Pursuant to that authority, Nasdaq 
has determined to permit a Nasdaq issuer that completed a merger with 
another Nasdaq issuer during the first 90 days of 2003 to apply for and 
receive a waiver for 75% of the annual fees assessed to the acquired 
Nasdaq issuer. Issuers must apply for the credit no later than June 30, 
2004. Applications should be addressed to: Finance Department CCG 
Billing Operations, The Nasdaq Stock Market Inc., 9513 Key West Avenue, 
4th Floor, Rockville Maryland, 20850.
* * * * *

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
    NASD Rules 4510(c)(2), 4510(d)(3), and 4520(d)(3) provide Nasdaq 
with the discretion to waive all or part of the annual listing fees 
prescribed in this Rule 4500 series. Pursuant to that authority, Nasdaq 
has determined to permit a Nasdaq issuer that completed a merger with 
another Nasdaq issuer during the first 90 days of 2003 to apply for and 
receive a waiver for 75% of the annual fees assessed to the acquired 
Nasdaq issuer. Issuers must apply for the credit no later than June 30, 
2004. Nasdaq has determined to take this action because it believes 
that it is equitable to provide a partial credit for annual listing 
fees in order to avoid the assessment of two fees where a merger has 
occurred within the first 90 days of a given billing year. Nasdaq will 
send a communication to issuers regarding the availability of this 
waiver.
2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with 
the provisions of Section 15A(b)(5)\3\ and 15A(b)(6)\4\ of the Act. 
Section 15A(b)(5) of the Act \5\ requires that the rules of the NASD 
provide 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 NASD operates or controls. Nasdaq believes 
that this proposal, which provides for a partial waiver of annual fees 
in certain merger situations, is an equitable allocation of fees.
---------------------------------------------------------------------------

    \3\ 15 U.S.C. 78o-3(b)(5).
    \4\ 15 U.S.C. 78o-3(b)(6).
    \5\ 15 U.S.C. 78o-3(b)(5).
---------------------------------------------------------------------------

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

    Nasdaq neither solicited nor received written comments with respect 
to the proposed rule change.

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 Exchange 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.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing,

[[Page 5632]]

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. Comments should be submitted 
electronically at the following e-mail address: [email protected]. 
All comment letters should refer to File No. SR-NASD-2003-199. 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, comments should be sent in hard copy or by e-mail but not 
by both methods. 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 be submitted by 
February 26, 2004.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\6\
---------------------------------------------------------------------------

    \6\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Jill M. Peterson,
Assistant Secretary.
[FR Doc. 04-2332 Filed 2-4-04; 8:45 am]
BILLING CODE 8010-01-P