

[Federal Register: October 4, 2005 (Volume 70, Number 191)]
[Notices]               
[Page 57908-57909]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04oc05-108]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-52517; File No. SR-NASD-2005-059]

 
Self-Regulatory Organizations; National Association of Securities 
Dealers, Inc.; Order Approving Proposed Rule Change and Amendment No. 1 
Thereto, and Notice of Filing and Order Granting Accelerated Approval 
to Amendment No. 2 to the Proposed Rule Change, To Amend NASD Rule 7090 
To Modify the Annual Listing and Administrative Fees

September 27, 2005.

I. Introduction

    On May 10, 2005, the National Association of Securities Dealers, 
Inc. (``NASD''), through its subsidiary, The Nasdaq Stock Market, Inc. 
(``Nasdaq''), filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a 
proposed rule change to amend NASD Rule 7090 (``Mutual Fund Quotation 
Service'') to modify the annual listing and administrative fees. On 
June 8, 2005, Nasdaq filed Amendment No. 1 to the proposed rule change. 
The proposed rule change, as modified by Amendment No. 1, was published 
for comment in the Federal Register on June 21, 2005.\3\ The Commission 
received one comment on the proposal.\4\ On September 14, 2005, Nasdaq 
filed Amendment No. 2, which incorporated its response to the 
comment.\5\ This order approves the proposed rule change, as modified 
by Amendment No. 1, and provides notice of filing and grants 
accelerated approval of Amendment No. 2.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 51836 (June 13, 
2005), 70 FR 35753 (June 21, 2005) (the ``Release'').
    \4\ See letter from Peter G. Salmon, Director--Operations & 
Technology, Investment Company Institute, to Jonathan G. Katz, 
Secretary, Commission, dated July 12, 2005 (``ICI Letter'').
    \5\ See Amendment No. 2 Amendment No. 2 changed the proposed 
implementation date from July 1, 2005 to the later date of either 
January 1, 2006 or on the date all of the proposed enhancements to 
the Mutual Fund Quotation Service (``MFQS'') have been implemented.
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II. Summary of Comments

    The Commission received one comment letter on the proposed rule 
change.\6\ The commenter stated that it supports the planned 
enhancements to the MFQS.\7\ In addition, the commenter does not object 
to the proposed fee increases, provided Nasdaq implements the planned 
enhancements on the schedule outlined in the Release.\8\ The commenter 
is concerned that changes in priorities and other factors or events 
could delay the implementation of the planned enhancements to the 
MFQS.\9\ However, the commenter urged that the proposed fee increases 
only be assessed once the planned enhancements are implemented.\10\ The 
commenter does not believe that its recommendation that the proposed 
fee increases be assessed once the planned enhancements are implemented 
would impede the completion of the planned enhancements.\11\
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    \6\ See footnote 4, supra.
    \7\ See ICI Letter at 1.
    \8\ Id. at 2.
    \9\ Id.
    \10\ Id.
    \11\ Id.
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III. Nasdaq Response to Comments

    In response to the comment letter, Nasdaq amended the filing.\12\ 
In response to the commenter's request that the proposed fee increases 
only be assessed once the planned enhancements are implemented, Nasdaq 
amended the implementation date of the changes proposed in Amendment 
No. 1. Specifically, Amendment No. 2 addresses the commenter's concern 
by stating that the proposed rule change will be implemented on the 
later date of either January 1, 2006 or on the date all of the proposed 
enhancements to the MFQS system have been implemented.
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    \12\ See footnote 5, supra.
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IV. Discussion and Commission Findings

    After careful review of the proposal, the comment letter, and 
Nazdaq's response, the Commission finds that the proposed rule change, 
as amended, is consistent with the requirements of the Act and the 
rules and regulations thereunder applicable to a self-regulatory 
organization.\13\ In particular, the Commission believes that the 
proposed rule change, as amended, is consistent with Section 15A(b)(5) 
of the Act,\14\ which requires, among other things, that the rules of 
the association provide for the equitable allocation of reasonable 
dues, fees, and other charges among members and issuers and other 
persons using any facility or system which NASD operates or controls. 
The Commission notes that the Nasdaq proposal, as amended, will not be 
implemented until the later of either

[[Page 57909]]

January 1, 2006 or on the date all of the proposed enhancements to the 
MFQS system have been implemented. The Commission believes that this 
change to the proposal sufficiently addresses the concerns expressed by 
the commenter.
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    \13\ In approving the proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition and 
capital formation. 15 U.S.C. 78s(f).
    \14\ 15 U.S.C. 78o3(b)(5).
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    The Commissioner finds good cause for approving proposed Amendment 
No. 2 before the 30th day after the date of publication of notice of 
filing thereof in the Federal Register. Nasdaq filed Amendment No. 2 in 
response to comments it received after publication of the notice of 
filing of the proposed rule change, to address the commenter's 
concerns. Because Amendment No. 2 is responsive to the commenter's 
concerns, the Commission finds good cause for accelerating approval of 
Amendment No. 2.

V. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning Amendment No. 2, including whether Amendment No. 2 
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 rule-comments@sec.gov. Please include 

File Number SR-NASD-2005-059 on the subject line.

Paper Comments

     Send paper comments in triplicate to Jonathan G. Katz, 
Secretary, Securities and Exchange Commission, Station Place, 100 F 
Street, NE., Washington, DC 20549-9303.

All submissions should refer to File Number SR-NASD-2005-059. 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. Copies of such 
filing also will be available for inspection and copying at the 
principal office of the NASD. 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-NASD-2005-059 and should be submitted on or before 
October 25, 2005.

VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\15\ that the proposed rule change (File No. SR-NASD 2005-059), as 
modified by Amendment No. 1, thereto, be, and it hereby is, approved 
and that Amendment No. 2 be, and hereby is, approved on an accelerated 
basis.
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    \15\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\16\
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    \16\ 17 CFR 200.30-3(a)(12).
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Jonathan G. Katz,
Secretary.
[FR Doc. 05-19808 Filed 10-3-05; 8:45 am]

BILLING CODE 8010-01-M
