[Federal Register Volume 77, Number 21 (Wednesday, February 1, 2012)]
[Notices]
[Pages 5085-5087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2134]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-66256; File No. SR-NASDAQ-2012-012]
Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Modify the Fee for a Written Interpretation of the Nasdaq Listing Rules
January 26, 2012.
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 January 13, 2012, The NASDAQ Stock Market LLC (``Nasdaq'') 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 Nasdaq. 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 to modify the fee for a written interpretation of
the Nasdaq listing rules. Nasdaq will implement the proposed rule
change immediately.
(a) The text of the proposed rule change is below. Proposed new
language is italicized; proposed deletions are in brackets.\3\
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\3\ Changes are marked to the rule text that appears in the
electronic manual of Nasdaq found at http://nasdaq.cchwallstreet.com.
* * * * *
5602. Written Interpretations of Nasdaq Listing Rules
(a) A Company listed on the Nasdaq Capital Market or the Nasdaq
Global Market may request from Nasdaq a written interpretation of
the Rules contained in the Rule 5000 through 5900 Series. In
connection with such a request, the Company must submit to Nasdaq a
non-refundable fee of [$15,000]$5,000. [(b)] A response to such a
request[for a written interpretation] generally will be provided
within four weeks from the date Nasdaq receives all information
necessary to respond to the request [, although if a Company
requires a response by a specific date it should state the date in
its request for the written interpretation and Nasdaq will attempt
to respond by that date].
(b) Notwithstanding paragraph (a), a Company may request a
written interpretation of the Rules contained in the 5000 through
5900 Series by a specific date that is less than four weeks, but at
least one week, after the date Nasdaq receives all information
necessary to respond to the
[[Page 5086]]
request. In connection with such a request for an expedited
response, the Company must submit to Nasdaq a non-refundable fee of
$15,000.
(c)-(f) No change.
* * * * *
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 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
Nasdaq rules allow a company to request from Nasdaq a written
interpretation on the application of the Nasdaq listing rules,
contained in the Rule 5000 through 5900 Series. Nasdaq proposes to
modify the fee in connection with such a request. Today, a company is
required to submit a non-refundable fee of $15,000,\4\ and Nasdaq
generally provides a response to the request within four weeks from the
date Nasdaq receives all information necessary to respond to the
request, although if a company requires a response by a specific date,
Nasdaq will attempt to respond by that date.\5\
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\4\ See Nasdaq Listing Rule 5602(a).
\5\ See Nasdaq Listing Rule 5602(b).
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Previously, Nasdaq rules provided for two tiers of fees for a
written interpretation of the Nasdaq listing rules, depending on the
urgency of the request. Nasdaq eliminated that two-tier structure
because few companies took advantage of the lower fee alternative.\6\
However, Nasdaq has received feedback from listed companies and their
counsel that the option to submit a non-expedited request for a lower
fee is an important alternative. Accordingly, Nasdaq proposes to revert
to the prior version of the rules,\7\ under which a company could
submit a non-refundable fee of $5,000 for a regular request, to which
Nasdaq generally will provide a response within four weeks from the
date Nasdaq receives all information necessary to respond to the
request. As under the current rule, a company may, alternatively,
submit a non-refundable fee of $15,000 for an expedited request, in
which the company requests a response by a specific date that is less
than four weeks, but at least one week, after the date Nasdaq receives
all necessary information.
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\6\ See Securities Exchange Act Release No. 34-61669 (March 5,
2010), 75 FR 11958 (March 12, 2010) (approving SR-NASDAQ-2009-081).
\7\ Id.
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Under the proposal, companies would have the option to choose an
expedited or non-expedited track for their request, and no company will
pay a higher fee for a written interpretation of the Nasdaq listing
rules than is currently charged. Nasdaq will continue to endeavor to
respond to all requests as quickly as possible, while making
appropriate decisions as to the application of the Nasdaq rules. Nasdaq
also will continue not to charge companies for oral guidance on the
Nasdaq rules.\8\
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\8\ The Commission notes that Nasdaq informed Commission staff
in connection with a previous rule proposal that Nasdaq does not
charge companies for oral interpretation requests of their rules.
See supra note 6, 75 FR at 11959 n. 17.
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Finally, the proposed rule change will not affect Nasdaq's
commitment of resources to its regulatory oversight of the listing
process or its other regulatory programs, and the proposed change is
not expected to meaningfully impact Nasdaq's revenue from its listing
program.
2. Statutory Basis
Nasdaq believes that the proposed rule change is consistent with
the provisions of Section 6 of the Act,\9\ in general, and with
Sections 6(b)(4) and (b)(5) of the Act,\10\ in particular. The proposed
rule change is consistent with Section 6(b)(4) in that it provides for
the equitable allocation of reasonable fees, dues, and other charges
among members and issuers and other persons using any facility or
system which Nasdaq operates or controls. Under the proposed rule
change, issuers that do not need an expedited request could pay a lower
fee. Nasdaq believes that the availability of a lower priced
alternative for non-expedited interpretation requests is an equitable
allocation of Nasdaq's fees. The proposed rule change also is
consistent with Section 6(b)(5) in that it does not unfairly
discriminate between issuers in that issuers that do not need an
expedited interpretation will have the lower-priced alternative
available to them.
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\9\ 15 U.S.C. 78f.
\10\ 15 U.S.C. 78f(b)(4) and (b)(5).
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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 \11\ and subparagraph (f)(2) of Rule 19b-4
thereunder.\12\ 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.
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\11\ 15 U.S.C. 78s(b)(3)(A)(ii).
\12\ 17 CFR 240.19b-4(f)(2).
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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 email to [email protected]. Please include
File Number SR-NASDAQ-2012-012 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-2012-012. 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
[[Page 5087]]
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-2012-012 and should be submitted
on or before February 22, 2012.
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\13\ 17 CFR 200.30-3(a)(12).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\13\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-2134 Filed 1-31-12; 8:45 am]
BILLING CODE 8011-01-P