[Federal Register Volume 74, Number 233 (Monday, December 7, 2009)]
[Notices]
[Pages 64107-64109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29037]


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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61070; File No. SR-NASDAQ-2009-100]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Modify Pricing for NASDAQ's Portal Reference Database

November 30, 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 November 16, 2009, The NASDAQ Stock Market LLC (the ``NASDAQ 
Exchange'' or ``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 the 
NASDAQ Exchange. The NASDAQ Exchange has designated the proposed rule 
change as constituting a non-controversial rule change under Rule 19b-
4(f)(6) under the Act,\3\ 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.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

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

    The NASDAQ Exchange is proposing to modify and simplify pricing for 
NASDAQ's Portal Reference Database. The text of the proposed rule 
change is below. Proposed new language is italicized; proposed 
deletions are in brackets.
* * * * *

[[Page 64108]]

7045. PORTAL Reference Database

    The Following Charges shall Apply To Access to the PORTAL Reference 
Database

    [(1) For PORTAL data for 2008 and future years, the annual fee is:
1-20 Users $20,000
21 to 100 Users $50,000
101+ Users $100,000]

    [(2)] (1) [For PORTAL data for 1990 to 2007,] [the] The fee for 
each year of reference data shall be:
1-20 Users $20,000 (not to exceed $200,000 for access to all PORTAL 
historical data files) [from 1990 to 2007)]
21 [to 100]  Users $50,000 (not to exceed $500,000 for 
access to all PORTAL historical data files) [from 1990 to 2007)]
[101+ Users] [$100,000 (not to exceed $1,000,000 for access to all 
PORTAL historical data files from 1990 to 2007)]

    PORTAL securities are restricted securities, as defined in SEC Rule 
144(a)(3) under the Securities Act; or securities that, pursuant to 
contract or through terms of the security, upon issuance and 
continually thereafter only can be sold pursuant to Regulation S under 
the Securities Act, SEC Rule 144A, or SEC Rule 144 under the Securities 
Act, or in a transaction exempt from the registration requirements of 
the Securities Act pursuant to Section 4 thereof and not involving any 
public offering that were designated for inclusion in the PORTAL Market 
by Nasdaq. PORTAL equity securities are PORTAL securities that 
represent an ownership interest in a legal entity, including but not 
limited to any common, capital, ordinary, preferred stock, or warrant 
for any of the foregoing, shares of beneficial interest, or the 
equivalent thereof (regardless of whether voting or non-voting, 
convertible or non-convertible, exchangeable or non-exchangeable, 
exercisable or non-exercisable, callable or non-callable, redeemable or 
non-redeemable). PORTAL debt securities are PORTAL securities that are 
United States dollar denominated debt securities issued by United 
States and/or foreign private corporations.
    PORTAL reference data consists of, in addition to other 
information, a PORTAL debt or equity issue's name and offering 
description, CUSIP, country of incorporation, security class, maturity 
class and date, currency denomination, applicable interest and credit 
rating, convertibility and call provisions, total number of shares 
offered, and date of PORTAL designation.
* * * * *

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the NASDAQ Exchange 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. The NASDAQ Exchange 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

a. Purpose
    As part of NASDAQ's continuing efforts to enhance the transparency 
and efficiency of trading in Rule 144A issues, NASDAQ created and makes 
publicly available, for a fee, a consolidated electronic reference 
database of information culled from offering documents and applications 
for securities seeking designation as a PORTAL security submitted to 
NASDAQ since 1990.\4\ The database is fully electronic and allows users 
to determine, in addition to other information, a PORTAL issue's name 
and offering description, CUSIP, country of incorporation, security 
class, maturity class and date, currency denomination, applicable 
interest and credit rating, convertibility and call provisions, total 
number of shares offered, and date of PORTAL designation. As new issues 
sought PORTAL designation, they too were added to the database. Access 
to the database is open to all market participants. There is no pro-
rating of these fees. The total cost of access to the full database is 
capped based on the number of users at a particular firm. In this 
filing, NASDAQ is proposing to the [sic] modify and simplify fees for 
users of this database. Under the proposal, NASDAQ will: (1) Eliminate 
the separate pricing schedule for more recent PORTAL data; and (2) only 
use two tiers, 1-20 users, and 21+ users, for pricing all PORTAL data. 
For example, under the old fee structure a firm seeking PORTAL data for 
125 users for the years 2008 and 1996 would have been charged $100,000 
for the 2008 data, and $100,000 for the 1996 data, for a total of 
$200,000. Under the new structure, that same firm will now pay $50,000 
for the 2008 data, and $50,000 for the 1996 data, for a total of 
$100,000.
---------------------------------------------------------------------------

    \4\ For more information related to the background of The PORTAL 
Market, see Securities Exchange Act Release No. 55669 (April 25, 
2007); 72 FR 23874 (May 1, 2007). NASDAQ no longer designates 
securities as PORTAL securities, and has filed with the Commission a 
rule proposal to eliminate its PORTAL Market rules. See Securities 
Exchange Act Release No. 60991 (November 12, 2009); 74 FR 60006 
(November 19, 2009).
---------------------------------------------------------------------------

    NASDAQ believes that the above price modifications with respect to 
the PORTAL Reference Database will encourage the use of historical 
information about issuances of restricted equity and debt and provide a 
more reliable background upon which market participants can make 
investment decisions regarding such securities.
b. 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 
Sections 6(b)(5) of the Act,\6\ in particular, in that the proposal is 
designed to prevent fraudulent and manipulative acts and practices, to 
promote just and equitable principles of trade, to foster cooperation 
and coordination with persons engaged in regulating, clearing, 
settling, processing information with respect to, and facilitating 
transactions in securities, to remove impediments to and perfect the 
mechanism of a free and open market and a national market system, and, 
in general, to protect investors and the public interest. NASDAQ also 
believes that the proposed rule change is consistent with the 
provisions of Section 6 of the Act,\7\ in general, and with Section 
6(b)(4) of the Act,\8\ 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. In connection with the fees, NASDAQ 
notes that creation of the PORTAL reference database required the 
retrieval, organization, and review of hundreds of thousands of pages 
of hard-copy documents as well as the conversion of retrieved 
information into electronic form, and its subsequent importation into 
the database itself. On an ongoing basis, NASDAQ will also incur 
hardware and software costs for the maintenance and storage of PORTAL 
reference data.

[[Page 64109]]

Finally, NASDAQ notes that the Commission has previously approved the 
PORTAL Reference Database and that this filing simplifies and modifies 
fees for the database.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78f.
    \6\ 15 U.S.C. 78f(b)(5).
    \7\ 15 U.S.C. 78f.
    \8\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The NASDAQ Exchange 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 on the proposed rule change were neither solicited 
nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Because the foregoing proposed rule change does not: (i) 
Significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to Section 19(b)(3)(A) of the Act \9\ and Rule 19b-
4(f)(6) thereunder.\10\
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78s(b)(3)(A).
    \10\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii) 
requires that a self-regulatory organization submit to the 
Commission written notice of its intent to file the proposed rule 
change, along with a brief description and text of the proposed rule 
change, at least five business days prior to the date of filing of 
the proposed rule change, or such shorter time as designated by the 
Commission. The Commission notes that the Exchange has satisfied the 
five-day pre-filing notice requirement.
---------------------------------------------------------------------------

    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.L.Hill -Payroll No:43370 -
Folios:E127-128 -Date: 12/03/2009[FEDREG][VOL]*[/VOL][NO]*[/
NO][DATE]*[/DATE][NOTICES][NOTICE][PREAMB][AGENCY]*[/
AGENCY][SUBJECT]*[/SUBJECT]?>

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-2009-100 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-2009-100. 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 such 
filing also will be available for inspection and copying at the 
principal office of the NASDAQ 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-2009-100 and should be submitted 
on or before December 28, 2009.

    For the Commission, by the Division of Trading & Markets, 
pursuant to delegated authority.\11\
---------------------------------------------------------------------------

    \11\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-29037 Filed 12-4-09; 8:45 am]
BILLING CODE 8011-01-P