[Federal Register Volume 73, Number 133 (Thursday, July 10, 2008)]
[Notices]
[Pages 39755-39756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15624]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58081; File No. SR-NASDAQ-2008-058]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of a Proposed Rule Change 
to Modify Fees for Members Using the NASDAQ Options Market

July 2, 2008.
    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 30, 2008, The NASDAQ Stock Market LLC (``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 substantially by Nasdaq. Nasdaq has designated this 
proposal as one establishing or changing a member due, fee, or other 
charge imposed by Nasdaq under Section 19(b)(3)(A)(ii) of the Act \3\ 
and Rule 19b-4(f)(2) thereunder,\4\ which renders the proposal 
effective upon filing with the Commission. 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)(ii).
    \4\ 17 CFR 240.19b-4(f)(2).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    Nasdaq proposes to modify Rule 7050 governing pricing for Nasdaq 
members using the NASDAQ Options Market (``NOM''), Nasdaq's facility 
for executing and routing standardized equity and index options. Nasdaq 
will implement the proposed rule change on July 1, 2008. The text of 
the proposed rule change is available at http://www.complinet.com/nasdaq, the principal offices of the Exchange, and 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 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 is proposing to modify the fees assessed for execution of 
options orders entered into NOM but routed to away markets. Nasdaq 
currently assesses a routing fee based upon an approximation of the 
cost to Nasdaq of executing such orders at those markets. In order to 
reflect Nasdaq's cost of execution at away markets, the fees are 
separated by type of option (penny pilot, equity/non-penny pilot, ETF 
or HLDS/non-penny pilot, and Index) and vary depending upon whether the 
order is being routed for a customer, a member firm, or a registered 
market maker. In addition, Nasdaq passes through surcharges that are 
assessed by other markets for the execution of specific options orders 
on specific underlying instruments.
    Nasdaq has determined that the superior approach is to pass through 
to exchange members the actual fees assessed by away markets plus the 
clearing fees for the execution of orders routed from Nasdaq. Nasdaq 
has collected and organized in chart format the fees to be assessed for 
routing to each destination exchange. These fees include both the 
execution fees charged by the individual exchanges and also the 
clearing fees associated with each execution. Nasdaq believes that 
these routing fees are inherently competitive, fair and reasonable, and 
non-discriminatory in that they replicate the fees assessed by away 
markets executing orders routed from Nasdaq. As with all fees, Nasdaq 
may adjust these routing fees in response to competitive conditions by 
filing a new proposed rule change.
2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with 
the provisions of Section 6 of the Act,\5\ in general, and with Section 
6(b)(4) of the Act,\6\ 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 
which Nasdaq operates or controls.
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    \5\ 15 U.S.C. 78f.
    \6\ 15 U.S.C. 78f(b)(4).
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    Nasdaq is one of seven options markets in the national market 
system for standardized options. Joining

[[Page 39756]]

Nasdaq and electing to trade options is entirely voluntary. Under these 
circumstances, Nasdaq's fees must be competitive and low in order for 
Nasdaq to attract order flow, execute orders, and grow as a market. The 
various exchanges have filed these fees with the Commission and it is 
reasonable for Nasdaq to pass those fees through to its members. As 
such, Nasdaq believes that its fees are fair and reasonable and 
consistent with the Act.

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. To the contrary, 
Nasdaq has designed its fees to compete effectively for the execution 
and routing of options contracts and to reduce the overall cost to 
investors of options trading.

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 foregoing proposed rule change has been designated as a fee 
change pursuant to Section 19(b)(3)(A)(ii) of the Act \7\ and Rule 19b-
4(f)(2) \8\ thereunder, because it establishes or changes a due, fee, 
or other charge imposed on members by Nasdaq. Accordingly, the proposal 
is effective upon filing with the Commission. 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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    \7\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \8\ 17 CFR 240.19b-4(f)(2).
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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 proposed rule 
change 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-NASDAQ-2008-058 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, Station Place, 100 F Street, NE., Washington, 
DC 20549-1090.

    All submissions should refer to File Number SR-NASDAQ-2008-058. 
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, 100 F Street, 
NE., Washington, DC 20549, on official business days between the hours 
of 10 a.m. and 3 p.m. Copies of such filing also will be available for 
inspection and copying at the principal office of the Exchange. 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 publicly available. All 
submissions should refer to File Number SR-NASDAQ-2008-058 and should 
be submitted on or before July 31, 2008.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\9\
Florence E. Harmon,
Acting Secretary.
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    \9\ 17 CFR 200.30-3(a)(12).
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 [FR Doc. E8-15624 Filed 7-9-08; 8:45 am]
BILLING CODE 8010-01-P