[Federal Register Volume 77, Number 241 (Friday, December 14, 2012)]
[Notices]
[Pages 74530-74533]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30211]



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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-68395; File No. SR-NASDAQ-2012-134]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change 
for the NASDAQ Options Market (``NOM'') With Respect to the Authority 
of the Exchange or Nasdaq Options Services LLC (``NOS'') To Cancel 
Options Orders When a Technical or System Issue Occurs and To Describe 
the Operation of an Error Account for NOS

December 10, 2012.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that, on November 29, 2012, The NASDAQ Stock Market LLC (the 
``Exchange'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I and II 
below, which Items have been prepared by the self-regulatory 
organization. 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\ 15 U.S.C. 78a.
    \3\ 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

    The Exchange proposes a proposal relating to the authority of 
NASDAQ or Nasdaq Options Services to cancel orders on NOM when a 
technical or system issue occurs and to describe the operation of an 
error account for.
    NASDAQ will implement the proposed rule change thirty days after 
the date of the filing. 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 Exchange proposes to amend Chapter VI, Section 11, Order 
Routing, by adding a new paragraph (g) that addresses the authority of 
the Exchange or NOS to cancel options orders when a technical or 
systems issue occurs and to describe the operation of an error account 
for NOS.\4\
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    \4\ NOS is a facility of the Exchange. Accordingly, under 
Chapter VI, Section 11, the Exchange is responsible for filing with 
the Commission rule changes and fees relating to NOS's functions. In 
addition, the Exchange is using the phrase ``NOS or the Exchange'' 
in this rule filing to reflect the fact that a decision to take 
action with respect to orders affected by a technical or systems 
issue may be made in the capacity of NOS or the Exchange depending 
on where those orders are located at the time of that decision.
    From time to time, the Exchange may use non-affiliate third-
party broker-dealers to provide outbound routing services (i.e., 
third-party Routing Brokers). In those cases, orders are submitted 
to the third-party Routing Broker through NOS, the third-party 
Routing Broker routes the orders to the routing destination in its 
name, and any executions are submitted for clearance and settlement 
in the name of NOS so that any resulting positions are delivered to 
NOS upon settlement. As described above, NOS normally arranges for 
any resulting securities positions to be delivered to the member 
that submitted the corresponding order to the Exchange. If error 
positions (as defined in proposed Chapter VI, Section 11(g)(2)) 
result in connection with the Exchange's use of a third-party 
Routing Broker for outbound routing, and those positions are 
delivered to NOS through the clearance and settlement process, NOS 
would be permitted to resolve those positions in accordance with 
proposed Chapter VI, Section 11(g). If the third-party Routing 
Broker received error positions in connection with its role as a 
routing broker for the Exchange, and the error positions were not 
delivered to NOS through the clearance and settlement process, then 
the third-party Routing Broker would resolve the error positions 
itself, and NOS would not be permitted to accept the error 
positions, as set forth in proposed Chapter VI, Section 11(g)(2)(B).
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    NOS is the approved routing broker of the Exchange, subject to the 
conditions listed in Chapter VI, Section 11. The Exchange relies on NOS 
to provide outbound routing services from itself to routing 
destinations of NOS (``routing destinations'').\5\ When NOS routes 
orders to a routing destination, it does so by sending a corresponding 
order in its own name to the routing destination. In the normal course, 
routed orders that are executed at routing destinations are submitted 
for clearance and settlement in the name of NOS, and NOS arranges for 
any resulting securities positions to be delivered to the member that 
submitted the corresponding order to the Exchange. From time to time, 
however, the Exchange and NOS encounter situations in which it becomes 
necessary to cancel orders and resolve error positions.\6\
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    \5\ The Exchange has authority to receive inbound routes of 
options orders by NOS to NOM from NASDAQ OMX BX (on a one year pilot 
basis) and NASDAQ OMX PHLX. See Securities Exchange Act Release Nos. 
67295 (June 28, 2012), 77 FR 39758 (July 5, 2012) (SR-NASDAQ-2012-
061); and 59948 (May 20, 2009), 74 FR 25784 (May 29, 2009) (SR-
NASDAQ-2009-047).
    \6\ The examples described in this filing are not intended to be 
exclusive. Proposed Chapter VI, Section 11(g) would provide general 
authority for the Exchange or NOS to cancel orders in order to 
maintain fair and orderly markets when technical and systems issues 
are occurring, and Chapter VI, Section 11(g) also would set forth 
the manner in which error positions may be handled by the Exchange 
or NOS. The proposed rule change is not limited to addressing order 
cancellation or error positions resulting only from the specific 
examples described in this filing.
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Examples of Circumstances That May Lead to Canceled Orders
    A technical or systems issue may arise at NOS, a routing 
destination, or the Exchange that may cause the Exchange or NOS to take 
steps to cancel orders if the Exchange or NOS determines that such 
action is necessary to maintain a fair and orderly market. The examples 
set forth below describe some of the circumstances in which the 
Exchange or NOS may decide to cancel orders.
    Example 1.  If NOS or a routing destination experiences a 
technical or systems issue that results in NOS not receiving 
responses to immediate or cancel (``IOC'') orders that it sent to 
the routing destination, and that issue is not resolved in a timely 
manner, NOS or the Exchange would seek to cancel the routed orders 
affected by the issue.\7\ For instance, if NOS experiences a 
connectivity issue affecting the manner in which it sends or 
receives order messages to or from routing destinations, it may be 
unable to receive timely execution or cancellation reports from the 
routing destinations, and NOS or the Exchange may consequently seek 
to cancel the affected routed orders. Once the decision is made to 
cancel those routed orders, any cancellation that a member submitted 
to the Exchange on its initial order during such a situation would 
be honored.\8\
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    \7\ In a normal situation (i.e., one in which a technical or 
systems issue does not exist), NOS should receive an immediate 
response to an IOC order from a routing destination, and would pass 
the resulting fill or cancellation on to the Exchange member. After 
submitting an order that is routed to a routing destination, if a 
member sends an instruction to cancel that order, the cancellation 
is held by the Exchange until a response is received from the 
routing destination. For instance, if the routing destination 
executes that order, the execution would be passed on to the member 
and the cancellation instruction would be disregarded.
    \8\ If a member did not submit a cancellation to the Exchange, 
however, that initial order would remain ``live'' and thus be 
eligible for execution or posting on the Exchange, and neither the 
Exchange nor NOS would treat any execution of that initial order or 
any subsequent routed order related to that initial order as an 
error.
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    Example 2.  If the Exchange experiences a systems issue, the 
Exchange may take steps

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to cancel all outstanding orders affected by that issue and notify 
affected members of the cancellations. In those cases, the Exchange 
would seek to cancel any routed orders related to the members' 
initial orders.
Examples of Circumstances That May Lead to Error Positions
    In some instances, the technical or systems issue at NOS, a routing 
destination, the Exchange, or a non-affiliate third party Routing 
Broker may also result in NOS acquiring an error position that it must 
resolve. The examples set forth below describe some of the 
circumstances in which error positions may arise.

    Example A.  Error positions may result from routed orders that 
the Exchange or NOS attempts to cancel but that are executed before 
the routing destination receives the cancellation message or that 
are executed because the routing destination is unable to process 
the cancellation message. Using the situation described in Example 1 
above, assume that the Exchange seeks to cancel orders routed to a 
routing destination because it is not receiving timely execution or 
cancellation reports from the routing destination. In such a 
situation, NOS may still receive executions from the routing 
destination after connectivity is restored, which it would not then 
allocate to members because of the earlier decision to cancel the 
affected routed orders. Instead, NOS would post those positions into 
its error account and resolve the positions in the manner described 
below.
    Example B.  Error positions may result from an order processing 
issue at a routing destination. For instance, if a routing 
destination experienced a systems problem that affects its order 
processing, it may transmit back a message purporting to cancel a 
routed order, but then subsequently submit an execution of that same 
order (i.e., a locked-in trade) to The Options Clearing Corporation 
(``OCC'') for clearance and settlement. In such a situation, the 
Exchange would not then allocate the execution to the member because 
of the earlier cancellation message from the routing destination. 
Instead, NOS would post those positions into its error account and 
resolve the positions in the manner described below.
    Example C.  Error positions may result if NOS receives an 
execution report from a routing destination but does not receive 
clearing instructions for the execution from the routing 
destination. For instance, assume that a member sends the Exchange 
an order to buy 100 contracts overlying ABC stock, which causes NOS 
to send an order to a routing destination that is subsequently 
executed, cleared, and closed out by that routing destination, and 
the execution is ultimately communicated back to that member. On the 
next trading day (T+1), if the routing destination does not provide 
clearing instructions for that execution, NOS would still be 
responsible for settling that member's purchase, but would be left 
with a short position in its error account.\9\ NOS would resolve the 
position in the manner described below.
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    \9\ To the extent that NOS incurred a loss in covering its short 
position, it would submit a reimbursement claim to that routing 
destination.
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    Example D.  Error positions may result from a technical or 
systems issue that causes orders to be executed in the name of NOS 
that are not related to NOS's function as the Exchange's routing 
broker and are not related to any corresponding orders of members. 
As a result, NOS would not be able to assign any positions resulting 
from such an issue to members. Instead, NOS would post those 
positions into its error account and resolve the positions in the 
manner described below.
    Example E.  Error positions may result from a technical or 
systems issue through which the Exchange does not receive sufficient 
notice that a member that has executed trades on the Exchange has 
lost the ability to clear trades through OCC. In such a situation, 
the Exchange would not have valid clearing information, which would 
prevent the trade from being automatically processed for clearance 
and settlement on a locked-in basis. Accordingly, NOS would assume 
that member's side of the trades so that the counterparties can 
settle the trades. NOS would post those positions into its error 
account and resolve the positions in the manner described below.
    Example F.  Error positions may result from a technical or 
systems issue at the Exchange that does not involve routing of 
orders through NOS. For example, a situation may arise in which a 
posted quote/order was validly cancelled but the system erroneously 
matched that quote/order with an order that was seeking to access 
it. In such a situation, NOS would have to assume the side of the 
trade opposite the order seeking to access the cancelled quote/
order. NOS would post the position in its error account and resolve 
the position in the manner described below.

    In the circumstances described above, neither the Exchange nor NOS 
may learn about an error position until T+1, either: (1) During the 
clearing process when a routing destination has submitted to OCC a 
transaction for clearance and settlement for which NOS never received 
an execution confirmation; or (2) when a routing destination does not 
recognize a transaction submitted to OCC for clearance and settlement. 
Moreover, the affected members' trade may not be nullified absent 
express authority under Exchange rules.\10\
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    \10\ See, e.g., Chapter V, Section 6.
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Proposed Amendments to Chapter VI, Section 11
    The Exchange proposes to amend Chapter VI, Section 11 to add new 
paragraph (g) to address the cancellation of orders due to technical or 
systems issues and the use of an error account by NOS.
    Specifically, under paragraph (g)(1) of the proposed rule, the 
Exchange or NOS would be expressly authorized to cancel orders as may 
be necessary to maintain fair and orderly markets if a technical or 
systems issue occurred at the Exchange, NOS, or a routing 
destination.\11\ The Exchange or NOS would be required to provide 
notice of the cancellation to affected members as soon as practicable.
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    \11\ Such a situation may not cause the Exchange to declare 
self-help against the routing destination pursuant to Chapter XII, 
Section 2(b)(1). If the Exchange or NOS determines to cancel orders 
routed to a routing destination under proposed Chapter VI, Section 
11(g), but does not declare self-help against that routing 
destination, the Exchange would continue to be subject to the trade-
through requirements in the Options Order Protection and Locked/
Crossed Markets Plan and Chapter XII, Section 2 with respect to that 
routing destination.
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    Paragraph (g)(2) of the proposed rule would permit NOS to maintain 
an error account for the purpose of addressing positions that result 
from a technical or systems issue at NOS, the Exchange, a routing 
destination, or a non-affiliate third-party Routing Broker that affects 
one or more orders (``error positions''). By definition, an error 
position would not include any position that results from an order 
submitted by a member to the Exchange that is executed on the Exchange 
and automatically processed for clearance and settlement on a locked-in 
basis. NOS also would not be permitted to accept any positions in its 
error account from an account of a member and could not permit any 
member to transfer any positions from the member's account to NOS's 
error account under the proposed rule.\12\ However, if a technical or 
systems issue results in the Exchange not having valid

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clearing instructions for a member to a trade, NOS may assume that 
member's side of the trade so that the trade can be processed for 
clearance and settlement on a locked-in basis.\13\
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    \12\ The purpose of this provision is to clarify that NOS may 
address error positions under the proposed rule that are caused by a 
technical or systems issue, but that NOS may not accept from a 
member positions that are delivered to the member through the 
clearance and settlement process, even if those positions may have 
been related to a technical or systems issue at NOS, the Exchange, a 
routing destination of NOS, or a non-affiliate third-party Routing 
Broker. This provision would not apply, however, to situations like 
the one described in Example C in which NOS incurred a short 
position to settle a member's purchase, as the member did not yet 
have a position in its account as a result of the purchase at the 
time of NOS's action (i.e., NOS's action was necessary for the 
purchase to settle into the member's account). Similarly, the 
provision would not apply to situations like the one described in 
Example F, where a system issue caused one member to receive an 
execution for which there was not an available contraparty, in which 
case action by NOS would be necessary for the position to settle 
into that member's account. Moreover, to the extent a member 
receives locked-in positions in connection with a technical or 
systems issue, that member may seek to rely on Chapter V, Section 9 
if it experiences a loss. That rule references NASDAQ Rule 4626, 
which provides members with the ability to file claims against the 
Exchange for ``losses directly resulting from the Systems' actual 
failure to correctly process an order, Quote/Order, message, or 
other data, provided the Nasdaq Market Center has acknowledged 
receipt of the order, Quote/Order, message, or data.''
    \13\ See Example E above.
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    Under paragraph (g)(3), in connection with a particular technical 
or systems issue, NOS or the Exchange would be permitted to either (i) 
assign all resulting error positions to members, or (ii) have all 
resulting error positions liquidated, as described below. Any 
determination to assign or liquidate error positions, as well as any 
resulting assignments, would be required to be made in a 
nondiscriminatory fashion.
    NOS or the Exchange would be required to assign all error positions 
resulting from a particular technical or systems issue to the 
applicable members affected by that technical or systems issue if NOS 
or the Exchange:
     Determined that it has accurate and sufficient information 
(including valid clearing information) to assign the positions to all 
of the applicable members affected by that technical or systems issue;
     Determined that it has sufficient time pursuant to normal 
clearance and settlement deadlines to evaluate the information 
necessary to assign the positions to all of the applicable members 
affected by that technical or systems issue; and
     Had not determined to cancel all orders affected by that 
technical or systems issue.
    For example, a technical or systems issue of limited scope or 
duration may occur at a routing destination, and the resulting trades 
may be submitted for clearance and settlement by such routing 
destination to OCC. If there were a small number of trades, there may 
be sufficient time to match positions with member orders and avoid 
using the error account.
    There may be scenarios, however, where NOS determines that it is 
unable to assign all error positions resulting from a particular 
technical or systems issue to all of the affected members, or 
determines to cancel all affected routed orders. For example, in some 
cases, the volume of questionable executions and positions resulting 
from a technical or systems issue might be such that the research 
necessary to determine which members to assign those executions to 
could be expected to extend past the normal settlement cycle for such 
executions. Furthermore, if a routing destination experiences a 
technical or systems issue after NOS has transmitted IOC orders to it 
that prevents NOS from receiving responses to those orders, NOS or the 
Exchange may determine to cancel all routed orders affected by that 
issue. In such a situation, NOS or the Exchange would not pass on to 
the members any executions on the routed orders received from the 
routing destination.
    The proposed rule also would require NOS to liquidate error 
positions as soon as practicable.\14\ In liquidating error positions, 
NOS would be required to provide complete time and price discretion for 
the trading to liquidate the error positions to a third-party broker-
dealer and could not attempt to exercise any influence or control over 
the timing or methods of trading to liquidate the error positions.\15\ 
NOS also would be required to establish and enforce policies and 
procedures reasonably designed to restrict the flow of confidential and 
proprietary information between the third-party broker-dealer and NOS/
the Exchange associated with the liquidation of the error positions.
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    \14\ If NOS determines in connection with a particular technical 
or systems issue that some error positions can be assigned to some 
affected members but other error positions cannot be assigned, NOS 
would be required under the proposed rule to liquidate all such 
error positions (including those positions that could be assigned to 
the affected members).
    \15\ This provision is not intended to preclude NOS from 
providing the third-party broker with standing instructions with 
respect to the manner in which it should handle all error account 
transactions. For example, NOS might instruct the broker to treat 
all orders as ``not held'' and to attempt to minimize any market 
impact on the price of the stock being traded.
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    Under proposed paragraph (g)(4), NOS and the Exchange would be 
required to make and keep records to document all determinations to 
treat positions as error positions and all determinations for the 
assignment of error positions to members or the liquidation of error 
positions, as well as records associated with the liquidation of error 
positions through the third-party broker-dealer.
2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) \16\ of 
the Securities Exchange Act of 1934 (the ``Act''), in general, and 
furthers the objectives of Section 6(b)(5),\17\ 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, 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, and it is not 
designed to permit unfair discrimination among customers, brokers, or 
dealers. The Exchange believes that this proposal is in keeping with 
those principles because NOS's or the Exchange's ability to cancel 
orders during a technical or systems issue and to maintain an error 
account facilitates the smooth and efficient operations of the market. 
Specifically, the Exchange believes that allowing NOS or the Exchange 
to cancel orders during a technical or systems issue would allow the 
Exchange to maintain fair and orderly markets. Moreover, the Exchange 
believes that allowing NOS to assume error positions in an error 
account and to liquidate those positions, subject to the conditions set 
forth in the proposed amendments to Chapter VI, Section 11, would be 
the least disruptive means to correct these errors, except in cases 
where NOS can assign all such error positions to all affected members 
of the Exchange. Overall, the proposed amendments are designed to 
ensure full trade certainty for market participants and to avoid 
disrupting the clearance and settlement process. The proposed 
amendments are also designed to provide a consistent methodology for 
handling error positions in a manner that does not discriminate among 
members. The proposed amendments are also consistent with Section 6 of 
the Act insofar as they would require NOS to establish controls to 
restrict the flow of any confidential information between the third-
party broker and NOS/the Exchange associated with the liquidation of 
error positions.
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    \16\ 15 U.S.C. 78f(b).
    \17\ 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

    Written comments 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 after the date of

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the filing, or such shorter time as the Commission may designate, it 
has become effective pursuant to Section 19(b)(3)(A) of the Act \18\ 
and Rule 19b-4(f)(6) \19\ thereunder.
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    \18\ 15 U.S.C. 78s(b)(3)(A).
    \19\ 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.\20\ The Commission believes that waiver of the 
operative delay is consistent with the protection of investors and the 
public interest. Such waiver would allow the Exchange, without delay, 
to implement the proposed rule change, which is designed to provide a 
consistent methodology for handling error positions in a manner that 
does not discriminate among members. The Commission also notes that the 
proposed rule change is based on, and substantially similar to, NASDAQ 
Equity Rule 4758(d), which the Commission recently approved.\21\ 
Accordingly, the Commission designates the proposal operative upon 
filing.\22\
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    \20\ 17 CFR 240.19b-4(f)(6)(iii).
    \21\ See Securities Exchange Act Release No. 67281 (June 27, 
2012), 77 FR 39543 (July 3, 2012) (SR-NASDAQ-2012-057).
    \22\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposed rule change's impact on 
efficiency, competition, and capital formation. 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-2012-134 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-2012-134. 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 
10:00 a.m. and 3:00 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-2012-134 and should 
be submitted on or before January 4, 2013.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\23\
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    \23\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-30211 Filed 12-13-12; 8:45 am]
BILLING CODE 8011-01-P