[Federal Register Volume 76, Number 234 (Tuesday, December 6, 2011)]
[Notices]
[Pages 76204-76205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31230]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-65854; File No. SR-NASDAQ-2011-159]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Eliminate Exchange Direct Orders

November 30, 2011.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 \2\ thereunder, notice is hereby given 
that on November 22, 2011, The NASDAQ Stock Market LLC (the 
``Exchange'' or ``NASDAQ'') filed with the Securities and Exchange 
Commission (``SEC'' or ``Commission'') the proposed rule change as 
described in Items I and II 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.
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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 filing with the Securities and Exchange Commission 
(``Commission'') a proposal for the NASDAQ Options Market (``NOM'') to 
eliminate Exchange Direct Orders. Specifically, NASDAQ proposes to 
delete Chapter VI, Section 1(e)(7) and Section 6(a)(2), to delete 
Exchange Direct Orders from its rules. The Exchange proposes to 
eliminate this order type, effective November 30, 2011, as explained 
further below.
    The text of the proposed rule change is available at http://nasdaq.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, the 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 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

1. Purpose
    The purpose of the proposed rule change is to eliminate Exchange 
Direct Orders due to the new requirements of the recently adopted 
Market Access Rule.\3\ Exchange Direct Orders, defined in Chapter VI, 
Section 1(e)(7), are orders that are directed to an exchange other than 
NOM as directed by the entering party without checking the NOM book. If 
unexecuted, the order (or unexecuted portion thereof) shall be returned 
to the entering party. This order type may only be used for orders with 
time-in-force parameters of IOC. NASDAQ proposes to delete this 
definition as well as a reference to Exchange Direct Orders in Chapter 
VI, Section 6(a)(2).
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    \3\ See Securities Exchange Act Release No. 63241 (November 3, 
2010), 75 FR 69792 (November 15, 2010) (File No. S7-03-10).
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    In adopting the Exchange Direct Order type, NASDAQ explained that 
Exchange Direct Orders are routed by its affiliate, NASDAQ Options 
Services LLC (``NOS''). NOS is a broker-dealer and member of NASDAQ as 
well as other exchanges.\4\ The specific functions of NOS, as a 
facility of NASDAQ and its affiliates, have been approved by the 
Commission. On November 30, 2011, certain requirements of the Market 
Access Rule (Rule 15c3-5 under the Act) \5\ become operative, such that 
broker-dealers like NOS become subject to those provisions. 
Specifically, the Commission extended the deadline for compliance with 
Rule 15c3-5(c)(1)(i),\6\ which requires the implementation of risk 
management controls and supervisory procedures that are reasonably 
designed to prevent the entry of orders that exceed appropriate pre-set 
credit or capital thresholds, because the type of controls required by 
the Rule are not currently in place at many broker-dealers, and 
developing and implementing appropriate controls in this area can be a 
complex exercise. NASDAQ and NOS have determined that the adoption of 
these controls and procedures exceeds the scope of NOS' current 
functions and, therefore, NOS would cease accepting Exchange Direct 
Orders, because the acceptance of those

[[Page 76205]]

orders subjects NOS to the requirements of Rule 15c3-5(c)(1)(i).
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    \4\ See Securities Exchange Act Release No. 59420 (February 19, 
2009), 74 FR 8597 (February 25, 2011) (SR-NASDAQ-2009-011).
    \5\ 17 CFR 240.15c3-5.
    \6\ See Securities Exchange Act Release No. 64748 (June 27, 
2011), 76 FR 38293 (June 30, 2011) (File No. S7-03-10).
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    NASDAQ has provided notice to its membership of its intent to 
discontinue Exchange Direct Orders.\7\ Although NOM did receive such 
orders, they do not represent significant volume, such that NASDAQ does 
not believe that it will have a significant impact on its participants 
to eliminate this order type.
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    \7\ http://www.nasdaqtrader.com/TraderNews.aspx?id=OTA2011-62.
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act \8\ in general, and furthers the objectives of Section 
6(b)(5) of the Act \9\ in particular, in that it 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 facilitating transactions in securities, and to 
remove impediments to and perfect the mechanisms of a free and open 
market and a national market system, and, in general, to protect 
investors and the public interest, because the Exchange is not required 
to make this order type available and has made a decision to eliminate 
it, as explained above. Moreover, in order to comply with the Market 
Access Rule, this order type is being eliminated rather than 
implementing the extensive necessary changes. Furthermore, because this 
order type was not widely used, NASDAQ does not believe that market 
quality will be impacted by its elimination.
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    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition 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

    No written comments were either solicited or 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 after the date of the filing, or such 
shorter time as the Commission may designate, it has become effective 
pursuant to 19(b)(3)(A) of the Act \10\ and Rule 19b-4(f)(6) \11\ 
thereunder.
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    \10\ 15 U.S.C. 78s(b)(3)(A).
    \11\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file 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 Exchange has satisfied this requirement.
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    The Exchange has requested that the Commission waive the 30-day 
operative delay so that the proposed rule change may become effective 
and operative upon filing with the Commission. The Commission believes 
the waiver of the 30-day operative delay is consistent with the 
protection of investors and the public interest because eliminating 
Exchange Directed Orders will allow the Exchange's broker-dealer 
affiliate, NOS, to be in timely compliance with SEC Rule 15c3-5.\12\ In 
addition, the Exchange represents that the order type is not widely 
used and its elimination should not have a significant impact on market 
quality. Therefore, the Commission designates the proposal to be 
operative upon filing.\13\
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    \12\ See supra, note 6.
    \13\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend 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.

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 email to [email protected]. Please include 
File Number SR-NASDAQ-2011-159 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-2011-159. This 
file number should be included on the subject line if email 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 Web site viewing and 
printing 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 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-2011-159 and should 
be submitted on or before December 27, 2011.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2011-31230 Filed 12-5-11; 8:45 am]
BILLING CODE 8011-01-P