[Federal Register Volume 77, Number 21 (Wednesday, February 1, 2012)]
[Notices]
[Pages 5085-5087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2134]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-66256; File No. SR-NASDAQ-2012-012]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Modify the Fee for a Written Interpretation of the Nasdaq Listing Rules

January 26, 2012.
    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 January 13, 2012, 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 by Nasdaq. 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 proposes to modify the fee for a written interpretation of 
the Nasdaq listing rules. Nasdaq will implement the proposed rule 
change immediately.
    (a) The text of the proposed rule change is below. Proposed new 
language is italicized; proposed deletions are in brackets.\3\
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    \3\ Changes are marked to the rule text that appears in the 
electronic manual of Nasdaq found at http://nasdaq.cchwallstreet.com.

* * * * *

5602. Written Interpretations of Nasdaq Listing Rules

    (a) A Company listed on the Nasdaq Capital Market or the Nasdaq 
Global Market may request from Nasdaq a written interpretation of 
the Rules contained in the Rule 5000 through 5900 Series. In 
connection with such a request, the Company must submit to Nasdaq a 
non-refundable fee of [$15,000]$5,000. [(b)] A response to such a 
request[for a written interpretation] generally will be provided 
within four weeks from the date Nasdaq receives all information 
necessary to respond to the request [, although if a Company 
requires a response by a specific date it should state the date in 
its request for the written interpretation and Nasdaq will attempt 
to respond by that date].
    (b) Notwithstanding paragraph (a), a Company may request a 
written interpretation of the Rules contained in the 5000 through 
5900 Series by a specific date that is less than four weeks, but at 
least one week, after the date Nasdaq receives all information 
necessary to respond to the

[[Page 5086]]

request. In connection with such a request for an expedited 
response, the Company must submit to Nasdaq a non-refundable fee of 
$15,000.
    (c)-(f) No change.
* * * * *

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 rules allow a company to request from Nasdaq a written 
interpretation on the application of the Nasdaq listing rules, 
contained in the Rule 5000 through 5900 Series. Nasdaq proposes to 
modify the fee in connection with such a request. Today, a company is 
required to submit a non-refundable fee of $15,000,\4\ and Nasdaq 
generally provides a response to the request within four weeks from the 
date Nasdaq receives all information necessary to respond to the 
request, although if a company requires a response by a specific date, 
Nasdaq will attempt to respond by that date.\5\
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    \4\ See Nasdaq Listing Rule 5602(a).
    \5\ See Nasdaq Listing Rule 5602(b).
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    Previously, Nasdaq rules provided for two tiers of fees for a 
written interpretation of the Nasdaq listing rules, depending on the 
urgency of the request. Nasdaq eliminated that two-tier structure 
because few companies took advantage of the lower fee alternative.\6\ 
However, Nasdaq has received feedback from listed companies and their 
counsel that the option to submit a non-expedited request for a lower 
fee is an important alternative. Accordingly, Nasdaq proposes to revert 
to the prior version of the rules,\7\ under which a company could 
submit a non-refundable fee of $5,000 for a regular request, to which 
Nasdaq generally will provide a response within four weeks from the 
date Nasdaq receives all information necessary to respond to the 
request. As under the current rule, a company may, alternatively, 
submit a non-refundable fee of $15,000 for an expedited request, in 
which the company requests a response by a specific date that is less 
than four weeks, but at least one week, after the date Nasdaq receives 
all necessary information.
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    \6\ See Securities Exchange Act Release No. 34-61669 (March 5, 
2010), 75 FR 11958 (March 12, 2010) (approving SR-NASDAQ-2009-081).
    \7\ Id.
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    Under the proposal, companies would have the option to choose an 
expedited or non-expedited track for their request, and no company will 
pay a higher fee for a written interpretation of the Nasdaq listing 
rules than is currently charged. Nasdaq will continue to endeavor to 
respond to all requests as quickly as possible, while making 
appropriate decisions as to the application of the Nasdaq rules. Nasdaq 
also will continue not to charge companies for oral guidance on the 
Nasdaq rules.\8\
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    \8\ The Commission notes that Nasdaq informed Commission staff 
in connection with a previous rule proposal that Nasdaq does not 
charge companies for oral interpretation requests of their rules. 
See supra note 6, 75 FR at 11959 n. 17.
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    Finally, the proposed rule change will not affect Nasdaq's 
commitment of resources to its regulatory oversight of the listing 
process or its other regulatory programs, and the proposed change is 
not expected to meaningfully impact Nasdaq's revenue from its listing 
program.
2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with 
the provisions of Section 6 of the Act,\9\ in general, and with 
Sections 6(b)(4) and (b)(5) of the Act,\10\ in particular. The proposed 
rule change is consistent with Section 6(b)(4) in that it provides for 
the equitable allocation of reasonable fees, dues, and other charges 
among members and issuers and other persons using any facility or 
system which Nasdaq operates or controls. Under the proposed rule 
change, issuers that do not need an expedited request could pay a lower 
fee. Nasdaq believes that the availability of a lower priced 
alternative for non-expedited interpretation requests is an equitable 
allocation of Nasdaq's fees. The proposed rule change also is 
consistent with Section 6(b)(5) in that it does not unfairly 
discriminate between issuers in that issuers that do not need an 
expedited interpretation will have the lower-priced alternative 
available to them.
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    \9\ 15 U.S.C. 78f.
    \10\ 15 U.S.C. 78f(b)(4) and (b)(5).
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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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act \11\ and subparagraph (f)(2) of Rule 19b-4 
thereunder.\12\ 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.
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    \11\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \12\ 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 email to [email protected]. Please include 
File Number SR-NASDAQ-2012-012 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-2012-012. 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

[[Page 5087]]

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 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 available publicly. All submissions 
should refer to File Number SR-NASDAQ-2012-012 and should be submitted 
on or before February 22, 2012.
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    \13\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\13\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-2134 Filed 1-31-12; 8:45 am]
BILLING CODE 8011-01-P