
[Federal Register Volume 75, Number 241 (Thursday, December 16, 2010)]
[Notices]
[Pages 78789-78790]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-31633]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-63523; File No. SR-NASDAQ-2010-165]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Change Implementation Date for Direct Access Fees

December 10, 2010.
    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 December 9, 2010, The NASDAQ Stock Market LLC (``NASDAQ'' or the 
``Exchange'') 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 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\ 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 a rule change to assess ``direct access'' fees on 
customers receiving NASDAQ data within NASDAQ's co-location facility 
beginning on January 1, 2011, rather than December 1, 2010. Direct 
access fees applicable to such customers were Noticed [sic] in SR-
NASDAQ-2010-152,\3\ immediately effective as of the filing on November 
24, 2010, with an implementation date of December 1, 2010. In order to 
assure complete and clear prior notification to all affected customers, 
the Exchange is changing the implementation date of the fee schedule 
change to January 1, 2011.
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    \3\ Securities Exchange Act Release No. 63441 (December 6, 2010) 
(SR-NASDAQ-2010-152).
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    This change does not require a change in the language of the rule 
itself.

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

[[Page 78790]]

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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    In SR-NASDAQ-2010-152,\4\ the Exchange amended its fee schedule to 
correct an anomaly that effectively exempted certain customers residing 
within NASDAQ's co-location facility from paying a monthly fee for 
direct access to NASDAQ data, while customers that receive data from an 
extranet and reside outside the co-location facility are assessed the 
fee. The inequity was a result of the definition of ``direct access'' 
in the fee schedule, which did not by its terms clearly apply to data 
feeds provided to customers through distributors located within the co-
located facility. That rule filing expanded the definition of ``direct 
access'' and operated to assess the same direct access fee on all firms 
that have access to NASDAQ's raw data feeds, whether co-located or not.
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    \4\ Id.
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    The Notice of Filing and Immediate Effectiveness for this fee 
contained an implementation date of December 1, 2010. The effort to 
identify and notify all customers potentially affected by this rule 
change, however, has proven more time-consuming than expected. To 
assure that all customers that will be assessed the direct access fee 
have adequate prior notification, the Exchange is delaying 
implementation of the fee until January 1, 2011. None of the co-located 
customers that would have been newly subject to the direct access fee 
during December 2010 as a result of the fee amendment in SR-NASDAQ-
2010-152 will be charged this fee during December 2010.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the provisions of Section 6 of the Act,\5\ in general, and with 
Sections 6(b)(5) of the Act,\6\ in particular. The proposal 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 regulating, clearing, settling, 
processing information with respect to, and 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. The filing ensures clear and 
complete prior notification to customers affected by a fee change that 
permits transparent, uniform fees for direct access to Exchange data 
for all customers, whether co-located or not.
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    \5\ 15 U.S.C. 78f.
    \6\ 15 U.S.C. 78f(b)(5).
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    In addition, the Exchange believes that the proposed rule change is 
consistent with the provisions of Section 6 of the Act,\7\ in general, 
and with Section 6(b)(4) of the Act,\8\ 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 The [sic] Exchange operates or controls. The 
Exchange notes that delayed implementation of the amendment will best 
serve the interests of customers affected by the fee change.
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    \7\ 15 U.S.C. 78f.
    \8\ 15 U.S.C. 78f(b)(4).
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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.\9\ 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. If the Commission takes such action, the Commission shall 
institute proceedings to determine whether the proposed rule should be 
approved or disapproved.
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    \9\ 15 U.S.C. 78s(b)(3)(a)(ii).
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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 e-mail to rule-comments@sec.gov. Please include 
File Number SR-NASDAQ-2010-165 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-2010-165. 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 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-2010-165 and should be submitted on or before January 6, 2011.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\10\
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    \10\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-31633 Filed 12-15-10; 8:45 am]
BILLING CODE 8011-01-P


