[Federal Register Volume 70, Number 87 (Friday, May 6, 2005)]
[Notices]
[Pages 24145-24146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-2201]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-51630; File No. SR-NASD-2005-049]


Self-Regulatory Organizations; Notice of Filing and Order 
Granting Accelerated Approval of Proposed Rule Change and Amendment 
Nos. 1 and 2 Thereto by the National Association of Securities Dealers, 
Inc. To Modify the Pricing for Non-NASD Members Using Nasdaq's Brut 
Facility

April 28, 2005.
    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 April 8, 2005, 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 and 
II below, which Items have been prepared by Nasdaq. On April 12, 2005, 
Nasdaq submitted Amendment No. 1 to the proposed rule change.\3\ On 
April 27, 2005, Nasdaq submitted Amendment No. 2 to the proposed rule 
change.\4\ The Commission is publishing this notice to solicit comments 
on the proposed rule change, as amended, from interested persons, and 
at the same time is granting accelerated approval of the proposed rule 
change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 1 corrected a clerical error in the originally 
filed proposed rule change to clarify that the filing was submitted 
under Section 19(b)(2) of the Act.
    \4\ Amendment No. 2 replaced and superseded the originally filed 
proposed rule change, as amended.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    Nasdaq proposes to modify the pricing for non-NASD members using 
Nasdaq's Brut Facility (``Brut''). Nasdaq requests approval to 
implement the proposed rule change retroactively as of April 11, 2005. 
The text of the proposed rule change, as amended, is available on the 
NASD's Web site (http://www.nasd.com), at the NASD's Office of the 
Secretary, and at the Commission's Public Reference Room.

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, as 
amended, 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 III 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 currently charges a fee of $0.004 per share executed with 
respect to any order to buy or sell exchange-listed securities that is 
routed by Brut to an exchange using such exchange's proprietary order 
delivery system (such as the New York Stock Exchange's SuperDOT 
system). In SR-NASD-2005-048, which became effective immediately upon 
filing, Nasdaq reduced this fee for NASD members for some orders and 
eliminated it entirely for others effective April 11, 2005. In this 
filing, Nasdaq proposes to put in effect the same fee changes for non-
members.
    Under the proposal, the fee for orders to buy or sell exchange-
listed securities (assuming such securities are subject to the 
Consolidated Quotations Service and Consolidated Tape Association Plans 
and are not Exchange Traded Funds listed on the American Stock 
Exchange) that are routed by Brut to an exchange using the exchange's 
proprietary order delivery system would be reduced to $0.0004 per share 
executed. This fee would only be charged, however, if the orders to 
which it otherwise applies are routed outside Brut and the Nasdaq 
Market Center (``NMC'') without first attempting to execute within Brut 
or the NMC. If an order to which this fee would otherwise apply first 
attempts to execute against the book maintained by Brut or the NMC, 
then this fee would no longer be applicable.
    By lowering (and eliminating in many cases) the routing fees for 
certain orders for exchange-listed securities received by Brut, Nasdaq 
states that it seeks to continue to improve Brut's competitiveness in 
attracting buy and sell orders for exchange-listed securities. Nasdaq 
believes that its participants would benefit from the increased 
liquidity in exchange-listed securities that the proposal is designed 
to stimulate. Furthermore, Nasdaq states that all investors would 
benefit from increased competition in this area. Finally, Nasdaq 
believes that the distinction for fee purposes between orders that 
check the Brut (or NMC) book before routing and those that are 
designated for routing regardless of available prices in such book 
would encourage orders to check the Brut book, which it believes would 
benefit both the particular investor (who, as a result, may find a 
better execution) and the market as a whole.
    At the same time, the proposed rule change seeks to apply to non-
members a new fee (which is being instituted for members) designed to 
recover the commissions billed by NYSE specialists to Brut for certain 
types of limit orders. According to Nasdaq, generally, NYSE specialists 
charge Brut for executions of limit orders that remained unexecuted on 
the specialists' books for more than 5 minutes. While the specialists' 
fee schedules vary, Nasdaq states that the proposed Brut fee of $0.009 
per share is generally designed to recover for Brut some of the 
associated cost.
    The new fee would apply when a limit order is delivered to the NYSE 
via the NYSE's proprietary order delivery system and the time to 
execute such an order exceeds five minutes (measured as the difference 
between the time of the NYSE's electronic acknowledgment of the order 
and the time of execution). The new fee would not apply, however, to 
day orders executed in the specialists' opening and to good-till-
cancelled orders if executed in the opening on the day when they were 
entered. The new fee would also not apply to any on-close orders or 
market orders.
2. Statutory Basis
    Nasdaq believes that the proposed rule change, as amended, is 
consistent with the provisions of Section 15A of the Act,\5\ in 
general, and with Section 15A(b)(5) of the Act,\6\ in particular, in 
that the proposed rule change provides for the equitable allocation of 
reasonable dues, fees, and other charges among members and issuers and 
other persons

[[Page 24146]]

using any facility or system which the NASD operates or controls.
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    \5\ 15 U.S.C. 78o-3.
    \6\ 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, as amended, 
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 states that written comments were neither solicited nor 
received.

III. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change, as amended, 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 [email protected]. Please include 
File Number SR-NASD-2005-049 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-2005-049. 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 Room. Copies of the 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-2005-049 and should be 
submitted on or before May 27, 2005.

IV. Commission's Findings and Order Granting Accelerated Approval of 
Proposed Rule Change

    The Commission finds that the proposed rule change, as amended, is 
consistent with the requirements of the Act and the rules and 
regulations thereunder applicable to a self-regulatory organization.\7\ 
Specifically, the Commission believes the proposed rule change, as 
amended, is consistent with Section 15A(b)(5) of the Act,\8\ which 
requires that the rules of the self-regulatory organization provide for 
the equitable allocation of reasonable dues, fees, and other charges 
among members and issuers and other persons using any facilities or 
system which it operates or controls.
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    \7\ The Commission has considered the proposed rule's impact on 
efficiency, competition and capital formation. 15 U.S.C. 78c(f).
    \8\ 15 U.S.C. 78o-3(b)(5).
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    The Commission notes that this proposal, which permits the 
retroactive application of a routing fee for certain orders to buy or 
sell exchange-listed securities and a fee for certain limit orders 
delivered to the NYSE for non-NASD members to be effective as of April 
11, 2005, would permit the schedule for non-NASD members to mirror the 
schedule applicable to NASD members that was effective as of April 11, 
2005 pursuant to SR-NASD-2005-048.
    The Commission finds good cause for approving the proposed rule 
change, as amended, prior to the 30th day of the date of publication of 
notice thereof in the Federal Register. The Commission notes that the 
proposed fees for non-NASD members are identical to those in SR-NASD-
2005-048, which implemented these fees for NASD members and which 
became effective as of April 11, 2005. The Commission notes that this 
change will promote consistency in Nasdaq's fee schedule by applying 
the same pricing schedule with the same date of effectiveness for both 
NASD members and non-NASD members. Therefore, the Commission finds that 
there is good cause, consistent with Section 19(b)(2) of the Act,\9\ to 
approve the proposed rule change on an accelerated basis.
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    \9\ 15 U.S.C. 78s(b)(2).
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V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\10\ that the proposed rule change (File No. SR-NASD-2005-049), as 
amended, is approved on an accelerated basis.
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    \10\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Jill M. Peterson,
Assistant Secretary.
[FR Doc. E5-2201 Filed 5-5-05; 8:45 am]
BILLING CODE 8010-01-P