[Federal Register Volume 74, Number 113 (Monday, June 15, 2009)]
[Notices]
[Pages 28304-28305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13974]


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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60069; File No. SR-NASDAQ-2009-051]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of a Proposed Rule Change 
To Modify Pricing for NASDAQ ``Flash'' Functionality for Routable 
Orders

June 8, 2009.
    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 4, 2009, The NASDAQ Stock Market LLC (``NASDAQ'' or the 
``Exchange'') 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 the Exchange. 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 a rule change to modify pricing for NASDAQ members 
that trade equities in the NASDAQ Market Center using the ``Flash'' 
functionality set forth in NASDAQ Rule 4758(a)(1)(A). This proposed 
rule change, which is effective upon filing, will become operative when 
the Flash functionality becomes available, currently scheduled for June 
8, 2009. The text of the proposed rule change is available at http://nasdaqomx.cchwallstreet.com/, at NASDAQ's principal office, 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 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 establishing the price for members trading equities in 
the NASDAQ Market Center using NASDAQ's new pre-routing display or 
``Flash'' functionality described in NASDAQ Rule 4758(a)(1)(A). The 
Flash functionality provides an optional pre-routing display period for 
orders using NASDAQ's DOT, SCAN or STGY routing strategies. When 
voluntarily employed by a member, the Flash-enabled routing strategies 
will first execute to the maximum extent possible in NASDAQ's book, 
before displaying the remaining share amounts and prices to NASDAQ 
market participants and market data vendors for a period of time not to 
exceed one-half of one second. If at the end of the Flash period the 
order is not executed or is partially executed, NASDAQ will route the 
order automatically to the appropriate venue selected by the chosen 
routing strategy.\3\
---------------------------------------------------------------------------

    \3\ For further details on the processing of Flash routing 
strategies, refer to Securities Exchange Act Release 59875 (May 6, 
2009); 74 FR 22874 (May 14, 2009) (SR-NASDAQ-2009-043).
---------------------------------------------------------------------------

    When Flash routing functionality becomes available for use it will 
be assessed the following fees: $0.0015 per share executed during the 
Flash period for firms that add more than 35 million shares of 
liquidity daily on average for the month, and $0.0010 per share 
executed during the Flash period for all other firms.
    An order that is designated as Flash for routing can execute in a 
variety of ways. The following example will illustrate how an execution 
occurs and how NASDAQ will assess fees. An order that is designated as 
Flash for routing and that takes liquidity from the NASDAQ book prior 
to the Flash period will be assessed the standard fee of $0.0030 per 
share executed prior to the Flash period. If the unexecuted portion of 
that order provides liquidity on NASDAQ during the Flash period, it 
will be provided a liquidity rebate of either $0.0010 or $0.0015 per 
share executed during the Flash period based upon the member's average 
daily volume of liquidity provided. If the still unexecuted portion of 
the order is then routed to an away market, NASDAQ will assess the 
standard rate for routing (generally $0.0026). The remaining unexecuted 
shares are posted on the NASDAQ book and provided the standard rebate 
based on the firms' average daily liquidity provided based on the 
existing pricing tiers.
2. Statutory Basis
    NASDAQ believes that the proposed rule change is consistent with 
the provisions of Section 6 of the Act,\4\ in general, and with Section 
6(b)(4) of the Act,\5\ 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. The proposed fee is consistent with 
that standard in that it applies equally to all members using the Flash 
functionality. It also recognizes the benefits of additional liquidity 
delivered to the NASDAQ market place when NASDAQ members utilize the 
Flash functionality.
---------------------------------------------------------------------------

    \4\ 15 U.S.C. 78f.
    \5\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act \6\ and subparagraph (f)(2) of Rule 19b-4 
thereunder.\7\ 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.
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78s(b)(3)(a)(ii).
    \7\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

IV. Solicitation of Comments

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

[[Page 28305]]

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-2009-051 on the subject line.

Paper Comments

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

    All submissions should refer to File Number SR-NASDAQ-2009-051. 
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, on official 
business days between the hours of 10 a.m. and 3 p.m. Copies of the 
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 available publicly. All submissions should refer to 
File Number SR-NASDAQ-2009-051 and should be submitted on or before 
July 6, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\8\
---------------------------------------------------------------------------

    \8\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-13974 Filed 6-12-09; 8:45 am]
BILLING CODE 8010-01-P