[Federal Register Volume 77, Number 239 (Wednesday, December 12, 2012)]
[Notices]
[Pages 74042-74043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29960]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-68378; File No. SR-NASDAQ-2012-043]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Withdrawal of Proposed Rule Change, as Modified by Amendment 
Nos. 1 and 2 Thereto, To Establish the Market Quality Program

December 6, 2012.
    On March 23, 2012, The NASDAQ Stock Market LLC (``Exchange'' or 
``NASDAQ'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 \1\ and Rule 19b-4 thereunder,\2\ a proposed rule 
change to establish the Market Quality Program (`MQP''). On March 29, 
2012, the Exchange submitted Amendment No. 1 to the proposed rule 
change. The proposed rule change, as modified by Amendment No. 1 
thereto, was published for comment in the Federal Register on April 12, 
2012.\3\ The Commission initially received fifteen comment letters on 
the proposed rule change.\4\ On May 18, 2012, the Commission extended 
the time period in which to either approve the proposed rule change, 
disapprove the proposed rule change, or institute proceedings to 
determine whether to disapprove the proposed rule change, to July 11, 
2012.\5\ The Commission subsequently received three additional comment 
letters on the proposed rule change and a response letter from the 
Exchange.\6\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Securities Exchange Act Release No. 66765 (April 6, 2012), 
77 FR 22042.
    \4\ See Letter from Frank Choi, dated April 13, 2012; Letter 
from Christopher J. Csicsko, dated April 14, 2012; Letter from 
Jeremiah O'Connor III, dated April 14, 2012; Letter from Dezso J. 
Szalay, dated April 15, 2012; Letter from Kathryn Keita, dated April 
18, 2012; Letter from Anonymous, dated April 18, 2012; Letter from 
Mark Connell, dated April 19, 2012; Letter from Timothy Quast, 
Managing Director, Modern Networks IR LLC, dated April 26, 2012; 
Letter from Daniel G. Weaver, Ph.D., Professor of Finance, Rutgers 
Business School, dated April 26, 2012; Letter from Amber Anand, 
Associate Professor of Finance, Syracuse University, dated April 29, 
2012; Letter from Albert J. Menkveld, Associate Professor of 
Finance, VU University Amsterdam, dated May 2, 2012; Letter from 
James J. Angel, Associate Professor of Finance, Georgetown 
University, dated May 2, 2012; Letter from Ari Burstein, Senior 
Counsel, Investment Company Institute, dated May 3, 2012; Letter 
from Gus Sauter, Managing Director and Chief Investment Officer, 
Vanguard, dated May 3, 2012; and Letter from Leonard J. Amoruso, 
General Counsel, Knight Capital Group, Inc., dated May 4, 2012.
    \5\ See Securities Exchange Act Release No. 67022 (May 18, 
2012), 77 FR 31050 (May 24, 2012).
    \6\ See Letter from Gary L. Gastineau, Managing Member, ETF 
Consultants LLC, dated June 11, 2012; Letter from Rey Ramsey, 
President & CEO, TechNet, dated June 20, 2012; and Letter from 
Stuart J. Kaswell, Executive Vice President & Managing Director, 
General Counsel, Managed Funds Association, dated July 3, 2012. See 
also Letter from Joan C. Conley, Senior Vice President & Corporate 
Secretary, NASDAQ, dated July 6, 2012.
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    On July 11, 2012, the Commission instituted proceedings to 
determine whether to approve or disapprove the proposed rule change, as 
modified by Amendment No. 1.\7\ The Commission thereafter received six 
comment letters and two response letters and one email response from 
the Exchange.\8\ On October 2, 2012, the Commission issued a notice of 
designation of longer period for Commission action on proceedings to 
determine whether to disapprove the proposed rule change.\9\ On 
November 6, 2012, the Exchange submitted Amendment No. 2 to the 
proposed rule change.\10\ On December 6, 2012, the

[[Page 74043]]

Exchange withdrew the proposed rule change, as modified by Amendment 
Nos. 1 and 2 thereto (SR-NASDAQ-2012-043).
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    \7\ See Securities Exchange Act Release No. 67411, 77 FR 42052 
(July 17, 2012).
    \8\ See Letter from Joseph Cavatoni, Managing Director, and 
Joanne Medero, Managing Director, BlackRock, Inc., dated July 11, 
2012; Letter from Stanislav Dolgopolov, Assistant Adjunct Professor, 
UCLA School of Law, dated August 15, 2012; Letter from James E. 
Ross, Global Head, SPDR Exchange Traded Funds, State Street Global 
Advisors, dated August 16, 2012; Letter from Ari Burstein, Senior 
Counsel, Investment Company Institute, dated August 16, 2012; Letter 
from F. William McNabb, Chairman and Chief Executive Officer, 
Vanguard, dated August 16, 2012; and Letter from Andrew Stevens, 
Legal Counsel, IMC Chicago, LLC d/b/a IMC Financial Markets, dated 
August 16, 2012. See also Letters from Joan C. Conley, Senior Vice 
President & Corporate Secretary, NASDAQ OMX LLC, dated August 30, 
2012 and Jurij Trypupenko, Esq., NASDAQ, dated September 7, 2012, 
and email from Ed Knight, NASDAQ, dated September 19, 2012.
    \9\ See Securities Exchange Act Release No. 67961, 77 FR 61452 
(October 9, 2012).
    \10\ In Amendment No. 2, the Exchange proposed to amend its 
proposed rule text to: (i) Add provisions requiring it to disclose 
on its Web site: (a) The dates that MQP Securities commence 
participation in and withdraw or are terminated from the MQP, (b) a 
statement about the MQP that sets forth a general description of the 
MQP as implemented on a pilot basis and a fair and balanced 
summation of the potentially positive aspects of the MQP (e.g., 
enhancement of liquidity and market quality in MQP Securities) as 
well as the potentially negative aspects and risks of the MQP (e.g., 
possible lack of liquidity and negative price impact on MQP 
Securities that withdraw or are terminated from the MQP), and 
indicates how interested parties can get additional information 
about products in the MQP, and (c) when it receives notification 
that an MQP Company or MQP Market Maker intends to withdraw from the 
MQP, and the date of actual withdrawal or termination from the MQP; 
(ii) add a requirement that during such time that an MQP Company 
lists an MQP Security, the MQP Company must, on a product-specific 
Web site for each product, indicate that the product is in the MQP 
and provide the link to the Exchange's MQP Web page; (iii) add a 
provision clarifying that the MQP Fee in respect of an ETF shall be 
paid by the sponsor(s) of such ETF, and the MQP Fee in respect of a 
TIR shall be paid by the sponsor(s) of such TIR, as applicable; (iv) 
amend the termination provision to provide that the MQP will 
terminate in respect of an MQP Security if such MQP Security 
sustains an average daily trading volume (consolidated trades in all 
U.S. markets) (``ATV'') of 1.0 million shares or more for three 
consecutive months (the previously proposed termination threshold 
was average daily trading volume of 2.0 million shares or more 
traded on NASDAQ for three consecutive months); and (v) amend the 
definition of ``MQP Company'' to clarify that such term means a fund 
sponsor or issuer, as applicable, that lists an MQP Security on the 
Exchange pursuant to the MQP (the previously proposed definition 
defined an ``MQP Company'' as a fund sponsor or ``other entity'' 
that lists an MQP Security on the Exchange pursuant to the MQP).
     In Amendment No. 2, the Exchange further proposed to amend the 
filing to state that while the Exchange originally proposed a 
termination threshold of 2.0 million shares or more ATV for three 
consecutive months, it is scaling back the threshold to better 
provide an opportunity to observe the impact, if any, on MQP 
Securities that exceed the threshold and ``graduate'' from the MQP. 
The Exchange notes that it has compiled statistics indicating that 
``graduation'' from the MQP may occur more frequently at a 1.0 
million ATV threshold than at a 2.0 million ATV threshold, and 
includes a chart showing from years 2001 to 2012 the number of ETFs 
that would have graduated from the MQP under the 2.0 million and 1.0 
million ATV thresholds. Finally, in Amendment No. 2, the Exchange 
proposed to amend the filing to make the following additional 
representations: (i) the Exchange represents that it will post on 
its Web site the monthly reports that it provides to the Commission 
relating to the MQP during the pilot period; (ii) the Exchange 
represents that it will endeavor to provide similar data to the 
Commission about comparable products that are listed on the Exchange 
that are not in the MQP and any other MQP-related data and analysis 
requested by Commission staff for the purpose of evaluating the 
efficacy of the MQP; and (iii) the Exchange represents that it will 
issue to its members an information bulletin about the MQP prior to 
operation of the MQP.

    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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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-29960 Filed 12-11-12; 8:45 am]
BILLING CODE 8011-01-P