[Federal Register Volume 73, Number 135 (Monday, July 14, 2008)]
[Notices]
[Pages 40410-40411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15818]



[[Page 40410]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58102; File No. SR-NASDAQ-2008-019]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing of a Proposed Rule Change and Amendment No. 1 Thereto 
To Remove From the Nasdaq Rules Fee Provisions Relating to Nasdaq's 
Mutual Fund Quotation Service

July 3, 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 March 12, 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. On July 3, 2008, Nasdaq filed 
Amendment No. 1 to the proposed rule change. 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 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    Nasdaq is proposing to remove from the Nasdaq rules fee provisions 
relating to Nasdaq's Mutual Fund Quotation Service (``MFQS''). Nasdaq's 
rule book contains rules pertaining to ``facilities'' of the exchange, 
and MFQS is not a ``facility'' within the meaning of the Act. The text 
of the proposed rule change is available at http://www.complinet.com/nasdaq, the principal offices of Nasdaq, 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
    Developed by the National Association of Securities Dealers 
(``NASD'') in the 1980s, MFQS receives daily price-related information 
from participating money market funds, mutual funds and unit investment 
trusts (``UITs''). Nasdaq disseminates the MFQS-collected information 
(as well as certain related publicly-available information) to the 
public on a daily basis through its Mutual Funds Dissemination Service 
(``MFDS''). Neither MFQS nor MFDS includes either ``last sale'' reports 
or other ``real time'' information. Both members and non-members of 
Nasdaq are able to participate in MFQS and to receive the information.
    Services similar to MFQS/MFDS can be provided by other entities, 
including entities that are not national securities exchanges. The ease 
with which money market, mutual fund and UIT information can be 
collected and transmitted over the Internet makes the environment in 
which MFQS and MFDS operate potentially highly competitive.
    Nasdaq included MFQS in its rule book when Nasdaq was registered as 
a national securities exchange in 2006.\3\ Current Nasdaq Rules 7033 
(a) through (d) contain charges paid by funds and UITs for 
participating in MFQS. Rules 7033(e) and 7019(b) contain charges paid 
by subscribers for the MFQS information provided to them via the 
MFDS.\4\
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    \3\ As Nasdaq prepared to begin operating as an independent 
national securities exchange in 2006, it replicated sections of the 
NASD rule manual and proposed that they be included in the new 
Nasdaq rule manual in the same form. See Securities Exchange Act 
Release No. 53128 (January 13, 2006), 71 FR 3550 (January 23, 2006).
    \4\ The language of the current Rule 7033(e), which had been 
approved for inclusion in the NASD rule manual prior to Nasdaq's 
separation, was inadvertently omitted from the form of the Nasdaq 
rule manual approved by the Commission in 2006. See supra. Since at 
that time no substantive changes to these provisions were intended, 
the omitted language was subsequently reinserted in the Nasdaq rule 
manual with retroactive effect to the 2006 separation date. See 
Securities Exchange Act Release No. 57347 (February 19, 2008), 73 FR 
10080 (February 25, 2008) (SR-NASDAQ-2007-100).
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    Nasdaq believes that by operating MFQS and MFDS, it facilitates the 
distribution of information regarding non-exchange activity. As such, 
Nasdaq does not believe that either MFQS or MFDS is a facility of a 
national securities exchange within the meaning of the Act or that the 
applicable charges are rules that need to be filed with the Commission 
under Section 19(b)(1) of the Act \5\ and Rule 19b-4 thereunder.\6\
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    \5\ 15 U.S.C. 78s(b)(1).
    \6\ 17 CFR 240.19b-4.
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    If, at a later date, Nasdaq proposed to modify the operation of 
MFQS (or MFDS) in a manner that would cause this service to fit within 
the definition of a facility of the exchange, or if Nasdaq proposed to 
tie the fees for this service to fees for or usage of exchange 
services, Nasdaq would file a proposed rule change with the 
Commission.\7\
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    \7\ See Securities Exchange Act Release No. 56237 (August 9, 
2007), 72 FR 46118 (August 16, 2007) (SR-NASDAQ-2007-043) (approving 
removal from Nasdaq rule book of provisions governing operation of 
the ACES system).
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2. Statutory Basis
    Nasdaq believes that MFQS is not a facility of a national 
securities exchange within the meaning of the Act and the terms of MFQS 
use are not rules that must be filed with the Commission under Section 
19(b)(1) of the Act \8\ and Rule 19b-4 thereunder.\9\ Therefore, 
removing the applicable provisions from the Nasdaq rule book would be 
consistent with the provisions of Section 6(b) of the Act.\10\
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    \8\ 15 U.S.C. 78s(b)(1).
    \9\ 17 CFR 240.19b-4.
    \10\ 15 U.S.C. 78f(b).
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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.

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

    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 Nasdaq 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 40411]]

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-2008-019 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NASDAQ-2008-019. 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 Nasdaq. 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-2008-019 and should 
be submitted on or before August 4, 2008.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-15818 Filed 7-11-08; 8:45 am]
BILLING CODE 8010-01-P