
[Federal Register: April 1, 2010 (Volume 75, Number 62)]
[Notices]               
[Page 16533-16534]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01ap10-129]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61787; File No. SR-NASDAQ-2010-015]

 
Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order 
Approving Proposed Rule Change To Apply Retroactively a Correction of a 
Drafting Error in Rule 7018

March 26, 2010.

I. Introduction

    On January 26, 2010, The NASDAQ Stock Market LLC (``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 that would 
apply retroactively, to the period from July 24, 2009 through January 
25, 2010, the correction made by SR-NASDAQ-2010-014 \3\ of a 
``typographical error'' \4\ formerly in Rule 7018.
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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. 61515 (February 12, 
2010), 75 FR 7642 (February 22, 2010).
    \4\ The Commission notes that the ``typographical error'' is 
more accurately characterized as a drafting error by Nasdaq that 
resulted in the omission and misplacement of rule language.
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    The proposed rule change was published for comment in the Federal 
Register on February 23, 2010.\5\ The Commission received no comments 
on the proposal. This order approves the proposed rule change.
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    \5\ See Securities Exchange Act Release No. 61524 (February 16, 
2010), 75 FR 8160.
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II. Description of the Proposal

    In August 2009, Nasdaq filed SR-NASDAQ-2009-072,\6\ to make 
clerical changes designed to streamline and simplify Rule 7018. In the 
``Purpose'' section of the proposed rule change, Nasdaq stated ``[n]one 
of the clerical changes will modify any fee assessed or credit earned 
for trading on the NASDAQ Market Center.'' However, due to a drafting 
error, Exhibit 5 to the proposed rule change (which sets out the actual 
language of the proposed rule change) introduced changes to the fees 
for orders in securities listed on the New York Stock Exchange 
(``NYSE'') that are routed to other venues without attempting to 
execute in Nasdaq for the full size of the order prior to routing. 
Nasdaq has been billing members in accordance with the fees that were 
in place before it filed SR-NASDAQ-2009-072. Nasdaq filed SR-NASDAQ-
2010-014 \7\ to correct the error; that proposed rule change was 
effective upon filing with the Commission, and changed the fees from 
the day it was filed (January 26, 2010) going forward. The instant 
proposed rule change would apply the same changes retroactively to the 
period from July 24, 2009 through January 25, 2010.
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    \6\ Securities Exchange Act Release No. 60430 (August 4, 2009), 
74 FR 40279 (August 11, 2009).
    \7\ Securities Exchange Act Release No. 61515 (February 12, 
2010), 75 FR 7642 (February 22, 2010) (SR-NASDAQ-2010-014).
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III. Discussion and Commission Findings

    The Commission finds that the proposed rule change is consistent 
with the requirements of the Act and the rules and regulations 
thereunder applicable to a national securities exchange.\8\ In 
particular, the Commission finds that the proposed rule change is 
consistent with the provisions of Section 6 of the Act,\9\ in general, 
and with Section 6(b)(4) of the

[[Page 16534]]

Act,\10\ in particular, in that it provides for the equitable 
allocation of reasonable dues, fees and other charges among members and 
issuers and other persons using any facility or system which Nasdaq 
operates or controls. The proposed rule change would allow the fee 
changes implemented by SR-NASDAQ-2010-014 to be applied retroactively 
throughout the entire period when the error was in the rule. 
Additionally, the proposed rule change would conform the text of the 
rule to the description of the proposed rule change that Nasdaq 
provided in SR-NASDAQ-2009-072, thereby eliminating any confusion as to 
the appropriate fees and Nasdaq's intentions.
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    \8\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. 15 U.S.C. 78c(f).
    \9\ 15 U.S.C. 78f.
    \10\ 15 U.S.C. 78f(b)(4).
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    In approving the proposed rule change, the Commission notes that it 
received no comments on the proposal, and that Nasdaq stated it ``has 
been billing members in accordance with the correct fees since the 
effective date of SR-NASDAQ-2009-072 on July 24, 2009, and accordingly 
believes that all of its members are cognizant of the correct fee.''
    The Commission urges Nasdaq to carefully proofread future proposed 
rule changes before filing them with the Commission, to minimize errors 
and the additional proposed rule changes required to correct them.

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\11\ that the proposed rule change (SR-NASDAQ-2010-015), be, and it 
hereby is, approved.
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    \11\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\12\
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    \12\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-7278 Filed 3-31-10; 8:45 am]
BILLING CODE 8011-01-P

