Federal Register / Vol. 77, No. 13 / Friday, January 20, 2012 / Notices 3021 

9For purposes only of waiving the 30-day 

operative delay, the Commission has considered the 

proposed rule’s impact on efficiency, competition, 

and capital formation. See 15 U.S.C. 78c(f). 

10 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3 17 CFR 240.3a51–1(g). 

4 15 U.S.C. 78k–1. 

5Section 102(b) of the NYSE Amex Company 

Guide. 

The Exchange has requested that the 

Commission waive the 30-day operative 

delay. The Commission believes that 

waiving the 30-day operative delay is 

consistent with the protection of 

investors and the public interest 

because the proposal only allows 

Exchange market makers to opt out of 

the Automated Quote Management 

service which will enable market 

makers to manage their own quotes if 

they so choose. Therefore, the 

Commission designates the proposed 

rule change to be operative upon filing 

with the Commission.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. 

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 rulecomments@sec.gov. Please include File 

Number SR–NASDAQ–2012–009 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–2012–009. 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 

a.m. and 3 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–2012–009 and should be 

submitted on or before February 10, 

2012. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.10

Kevin M. O’Neill, 

Deputy Secretary. 

[FR Doc. 2012–1034 Filed 1–19–12; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–66159; File No. SR– 

NASDAQ–2012–002] 

Self-Regulatory Organizations; The 

NASDAQ Stock Market LLC; Notice of 

Filing of Proposed Rule Change To 

Adopt an Alternative to the $4 Initial 

Listing Bid Price Requirement for the 

Nasdaq Capital Market of Either $2 or 

$3, if Certain Other Listing 

Requirements Are Met 

January 13, 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 3, 

2012, The NASDAQ Stock Market LLC 

(‘‘Nasdaq’’) filed with the Securities and 

Exchange Commission (‘‘Commission’’) 

the proposed rule change as described 

in Items I and II 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. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

Nasdaq proposes to adopt an 

alternative to the $4 initial listing bid 

price requirement for the Nasdaq 

Capital Market. The text of the proposed 

rule change is available on the Nasdaq’s 

Web site at http:// 

www.nasdaq.cchwallstreet.com, at 

Nasdaq’s principal office, and at the 

Commission’s Public Reference Room. 

Nasdaq will implement the proposed 

rule change upon approval. 

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 the 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

Nasdaq proposes to adopt an 

alternative to the minimum $4 price 

requirement for companies seeking to 

list on the Capital Market which meet 

the express exclusion from the 

definition of a ‘‘penny stock’’ contained 

in Exchange Act Rule 3a51–1(g).3

Nasdaq is seeking to make this change 

to enhance the competition among 

exchanges for companies with securities 

priced between $2 and $4. While 

Section 11A of the Act 4 reflects a 

Congressional finding that it ‘‘is in the 

public interest and appropriate for the 

protection of investors and the 

maintenance of fair and orderly markets 

to assure * * * fair competition * * * 

among exchange markets,’’ currently the 

only exchange listing alternative 

available to these companies is NYSE 

Amex, which has listing standards 

permitting the listing of companies at 

either $2 or $3.5 Nasdaq is unable to 

adopt an identical requirement for the 

Capital Market because of changes the 

Commission made to the Penny Stock 


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3022 Federal Register / Vol. 77, No. 13 / Friday, January 20, 2012 / Notices 

6Securities Exchange Act Release No. 51983 (July 

7, 2005) 70 FR 40614 (July 13, 2005). 

7Some companies have indicated that they would 

not consider a reverse stock split unless there was 

an underlying business rationale to support it. 

Other companies are unable to reverse split their 

stock and maintain qualification with the public 

float requirement for listing. 

8See Comment of Edward S. Knight, Nasdaq 

(March 18, 2004) regarding Proposed Amendments 

to the Penny Stock Rules, Securities Exchange Act 

Release No. 49037 (January 8, 2004), 69 FR 2531 

(January 16, 2004) (available at http://www.sec.gov/ 

rules/proposed/s70204/s70704-5.pdf). 

9Securities Exchange Act Release No. 51983, 

supra. In rejecting Nasdaq’s comment, the 

Commission stated its belief that the rule would 

maintain the status quo. This conclusion was 

incorrect, however, as the status quo would have 

permitted Nasdaq to maintain its penny stock 

exclusion if it modified its listing standards to 

adopt the same requirements as NYSE Amex, 

whereas the new Commission rule did not. 

10See Request for Rulemaking to Allow the 

Nasdaq Capital Market to Adopt Initial Listing Price 

Requirements Identical to NYSE Amex, File No. 4– 

604 (May 25, 2010), available at http://www.sec.gov/ 

rules/petitions/2010/petn4-604.pdf (the ‘‘2010 

Petition’’). 

11All other requirements for listing on the Capital 

Market are the same or higher than those of NYSE 

Amex. Nasdaq included a table comparing its 

listing standards with NYSE Amex’s as an 

attachment to the 2010 Petition. In addition, the 

Commission previously concluded that the initial 

listing standards for common stock on the Capital 

Market were substantially similar to those of NYSE 

Amex, allowing it to designate Capital Market 

securities as ‘‘covered securities’’ under Section 18 

of the 1933 Act, 15 U.S.C. 77r(b). Securities Act 

Release No. 8791 (April 18, 2007), 72 FR 20410 

(April 24, 2007). 

12The net tangible asset or revenue requirements 

would not apply to a company whose securities 

satisfy the existing $4 price requirement. 

13 17 CFR 240.3a51–1(g). 

14Rules 5505(b)(1) or (b)(3). 

15Rule 5505(b)(2). 

16Nasdaq notes that under Rule 5210(a)(1), any 

newly listing company, including a foreign private 

issuer, must be registered under Section 12(b) of the 

Act, which requires filing audited financial 

statements. Nasdaq believes that in all cases those 

financial statements must be more recent than 15 

months old. See Rule 3–01 and 3–12, 17 CFR 210.3– 

01 and 210.3–12, with respect to domestic 

companies, and Item 8.A(4) of Form 20–F, with 

respect to foreign private issuers. However, the 

proposed rule adopts the 15 month requirement to 

assure consistency with the timing requirements 

contained in Rule 3a51–1(g). 

17 17 CFR 240.3a51–1. 

18Release No. 49037, 69 FR at 2535 (text at 

footnote 41) (‘‘In addition, we note that any security 

that satisfies one of the other exclusions in Rule 

3a51–1 will not be a penny stock even if it fails to 

satisfy any of the proposed conditions for reported 

securities or for other exchange registered securities 

discussed above.’’). 

19Furthermore, the Commission has already 

concluded that companies that satisfy the NYSE 

Amex listing standards, including price, are not 

penny stocks. There is no reason to draw a different 

conclusion about these same companies if they 

were to list instead on the Nasdaq Capital Market 

under the proposed standard. See Indep. Petroleum 

Ass’n of Am. v. Babbitt, 92 F.3d 1248, 1258 (DC Cir. 

1996) (‘‘An agency must treat similar cases in a 

similar manner unless it can provide a legitimate 

reason for failing to do so.’’). 

20Nasdaq believes that the other exclusion most 

likely to be implicated would be Rule 3a51–1(d), 17 

Rules in 2005,6 which would treat 

securities listed on the Capital Market as 

‘‘penny stocks’’ if Nasdaq adopted the 

identical requirement. 

A number of companies have 

indicated a preference to initially list on 

the Capital Market instead of NYSE 

Amex and have expressed frustration at 

their inability to do so without reverse 

splitting their stock.7 Nasdaq has 

previously requested that the 

Commission modify its rules to 

eliminate this arbitrary regulatory 

disparity. In fact, as early as 2004, 

Nasdaq noted that the then proposed 

changes to the penny stock rules— 

which created a ‘‘grandfather’’ for Amex 

stocks and which were ultimately 

adopted by the Commission—would 

memorialize an unfair competitive 

advantage for Amex that is not available 

to other exchanges.8 The Commission 

rejected Nasdaq’s call for a uniform 

approach to all exchanges.9

In a petition filed in May 2010, 

Nasdaq again requested that the 

Commission act to eliminate the 

competitive advantage provided NYSE 

Amex by the grandfather provision, 

including, if it felt appropriate, by 

abrogating the NYSE Amex rule and 

requiring NYSE Amex to adopt the same 

minimum $4 initial listing price 

currently applicable to Nasdaq.10 The 

Commission has not acted on this 

request and has not provided any 

rationale for its delay. 

The proposed rule change fits within 

another express exclusion to the 

Commission’s penny stock definition 

and would allow a company that 

currently meets NYSE Amex’s price 

requirement to instead list on the 

Capital Market at the same initial listing 

price requirement.11 However, 

companies listing on the Capital Market 

under the proposed $2 or $3 price 

requirement would also have to satisfy 

the proposed net tangible assets or 

revenue test,12 which is not a 

requirement of the NYSE Amex rules, 

but which satisfies the requirements of 

Rule 3a51–1(g).13 Specifically, as 

revised, a company would be eligible to 

list on the Capital Market if it satisfies 

all existing listing standards except for 

the $4 price requirement. Such a 

company must instead have a minimum 

$3 price if it qualifies under the $5 

million equity or $750,000 net income 

alternatives 14 or a minimum $2 price if 

it qualifies under the $50 million market 

value of listed securities alternative 15. 

[sic] In addition, a company qualifying 

under the proposed standard must have 

either: (a) Net tangible assets in excess 

of $2 million, if the issuer has been in 

continuous operation for at least three 

years; or (b) net tangible assets in excess 

of $5 million, if the issuer has been in 

continuous operation for less than three 

years; or (c) average revenue of at least 

$6 million for the last three years. For 

this purpose, net tangible assets or 

revenue must be demonstrated on the 

Company’s most recently filed audited 

financial statements, satisfying the 

requirements of the Commission, and 

which are dated less than 15 months 

prior to the date of listing.16

Unlike the relief Nasdaq requested in 

2004 and 2010, the proposed rule 

change will require companies to meet 

an additional net tangible assets or 

revenue test, which NYSE Amex does 

not require, thus assuring that securities 

listed under the proposed rule change 

would not be considered ‘‘penny 

stocks’’ under the Act at the time of 

their listing. In that regard, Rule 3a51– 

1 17 provides that ‘‘penny stock’’ means 

any equity security other than securities 

that meet certain exclusions. Rule 3a51– 

1(g) provides an exclusion for a security 

if its issuer has either ‘‘[n]et tangible 

assets (i.e., total assets less intangible 

assets and liabilities) in excess of 

$2,000,000, if the issuer has been in 

continuous operation for at least three 

years, or $5,000,000, if the issuer has 

been in continuous operation for less 

than three years’’ or ‘‘[a]verage revenue 

of at least $6,000,000 for the last three 

years.’’ When the Commission made 

changes to Rule 3a51–1 concerning 

exchange-listed securities, it specifically 

noted that it did not intend to foreclose 

reliance on the other exclusions 

available in Rule 3a51–1, including the 

exclusion available in Rule 3a51–1(g).18

Proposed Rule 5505(a)(1)(B) would only 

permit a company to list with a $2 or 

$3 price if it satisfies the net tangible 

assets or revenue test of Rule 3a51–1(g) 

and, as such, securities listing under the 

proposed rule would not be penny 

stocks at the time of their listing.19

A company that qualifies for initial 

listing only under the proposed 

requirement could become a ‘‘penny 

stock’’ if it fails the net tangible assets 

and revenue tests after listing and does 

not satisfy any of the other exclusions 

from being a penny stock. In order to 

assist brokers’ and dealers’ compliance 

with the requirements of the Penny 

Stock Rules, Nasdaq will monitor 

companies listed under the proposed 

alternative and publish a list of any 

company that initially listed under that 

requirement, which does not then meet 

the requirements of Rule 3a51–1(g), 

described above, or any of the other 

exclusions from being a penny stock 

contained in Rule 3a51–1.20


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Federal Register / Vol. 77, No. 13 / Friday, January 20, 2012 / Notices 3023 

CFR 240.3a51–1(d), which provides an exclusion 

from the definition of a penny stock for a security 

with a minimum bid price of $5. Note, however, 

that if a company obtains a $4 minimum bid price 

at a time when it meets all other initial listing 

requirements, Nasdaq would no longer consider the 

company as having listed under the proposed 

alternative standard. 

21 15 U.S.C. 77r. 

22Securities Act Release No. 8791, supra. 

23 Id., 72 FR at 20411. 

24 15 U.S.C. 78f. 

25 15 U.S.C. 78f(b)(5) and (8). 

26Securities Exchange Act Release No. 53050 

(January 3, 2006), 71 FR 1580 (January 10, 2006) 

(approving the NYSE Amex $2 price requirement). 

The Commission notes that, prior to the adoption 

of the $2 price requirement, the applicable NYSE 

Amex standard did not require a minimum market 

price per share. 

27 17 CFR 240.3a51–1(g). 

28Nasdaq notes that NYSE Amex does not have 

a continued listing price requirement, although 

NYSE Amex will ‘‘consider suspending dealings’’ 

in a ‘‘common stock selling for a substantial period 

of time at a low price per share.’’ NYSE Amex 

Company Guide Section 1003(f)(v). As such, 

companies listing at $2 or $3 on NYSE Amex could 

quickly fall to a very low price and nonetheless 

remain listed indefinitely. On the other hand, 

Nasdaq requires a $1 price for continued listing. 

Nasdaq Listing Rule 5550(a)(2). See also Exchange 

Act Release No. 53050 (January 3, 2006), 71 FR 

1580 at 1581 (note 11) (January 10, 2006) 

(encouraging NYSE Amex to adopt a minimum 

price requirement for continued listing while 

approving SR–AMEX–2005–114). 

29 15 U.S.C. 78k–1. 

30See ‘‘NASDAQ OMX Group Inc. and 

IntercontinentalExchange Inc. Abandon Their 

Proposed Acquisition of NYSE Euronext After 

Justice Department Threatens Lawsuit’’ (May 16, 

2011), available at http://www.justice.gov/atr/ 

public/press_releases/2011/271214.htm. 

31 15 U.S.C. 77r. 

32 17 CFR 240.3a51–1(g). 

Nasdaq notes that the adoption of the 

proposed rule change should not alter 

the Commission’s prior designation of 

securities listed on the Capital Market as 

‘‘covered securities’’ under Section 18 of 

the Securities Act of 1933.21 In 2007, the 

Commission concluded that Capital 

Market securities were covered 

securities, exempt from State law 

registration requirements, because the 

Capital Market has listing standards that 

are substantially similar to the listing 

standards of the Nasdaq Global Market, 

New York Stock Exchange, or NYSE 

Amex (the ‘‘Named Markets’’).22 The 

Commission has held that an exchange’s 

listing requirements will be considered 

substantially similar if the listing 

standards are ‘‘at least as comprehensive 

as those of the Named Markets’’ and that 

if ‘‘listing standards are higher than the 

Named Markets, then the Commission 

still determined that the petitioner’s 

listing standards are substantially 

similar to the Named Markets.’’ 23 As 

described above, following approval of 

the proposed rule change, the Capital 

Market listing requirements for common 

stock will continue to be the same as, or 

higher than, those of NYSE Amex, 

which permit the listing of companies at 

$2 and $3 without the proposed 

additional net tangible asset or revenue 

test. Indeed, all other requirements for 

listing on the Capital Market meet or 

exceed the requirements for listing on 

NYSE Amex. The proposed rule change, 

therefore, should not disturb the 

Commission’s designation of Capital 

Market securities as covered securities. 

2. Statutory Basis 

Nasdaq believes that the proposed 

rule change is consistent with the 

provisions of Section 6 of the Act,24 in 

general and with Sections 6(b)(5) and (8) 

of the Act,25 in particular. Section 

6(b)(5) requires, among other things, 

that a national securities exchange’s 

rules must be designed to prevent 

fraudulent and manipulative acts and 

practices, to promote just and equitable 

principles of trade, and, in general, to 

protect investors and the public interest. 

The proposed rule change would adopt 

a $2 and $3 initial listing price 

alternative for the NASDAQ Capital 

Market that is substantially similar to 

the requirements of NYSE Amex, which 

the Commission has already determined 

is consistent with these requirements.26

However, the proposed rule change 

would require companies to also satisfy 

an additional net tangible asset or 

revenue test, which is not a requirement 

of the NYSE Amex listing requirements 

and which is consistent with the 

requirements for a security to avoid 

being a ‘‘penny stock’’ set forth in Rule 

3a51–1(g).27 Nasdaq believes that the 

proposed price requirement is sufficient 

to protect investors and would exercise 

its discretionary authority to deny 

initial listing if Nasdaq was concerned 

about the ability of the company to 

maintain compliance with the 

continued listing price or believed there 

were public interest concerns leading to 

the company’s low stock price.28

Moreover, given that these companies 

have an exchange-listing available to 

them, prohibiting listing on Nasdaq 

does not serve to protect investors and 

Nasdaq believes that investors would be 

at least as well protected by having 

these companies instead listed on the 

Capital Market, where they would be 

subject to oversight by Nasdaq’s 

regulatory staff. 

Section 6(b)(8) of the Act requires that 

the rules of an exchange not impose any 

burden on competition not necessary or 

appropriate in furtherance of the 

purposes of the Act. In addition, Section 

11A of the Act 29 requires that there be 

fair competition among exchange 

markets to further the public interest 

and protection of investors. The 

Department of Justice recently noted the 

importance of a competitive 

environment for exchange listings.30

Nasdaq believes that the existing 

situation, whereby NYSE Amex is 

permitted to list companies that no 

other market can, is an unfair burden on 

competition in violation of Sections 

6(b)(8) and 11A. Since 2008, NYSE 

Amex listed approximately 50 

companies for which no other market 

could compete. The proposed rule 

change would enhance the competition 

between exchanges, and benefit 

companies and their investors, by 

providing companies that today are 

forced to list on NYSE Amex an 

alternative exchange listing venue. As 

such, the proposed rule change is 

consistent with Sections 6(b)(8) and 

11A. 

Finally, as noted above, the proposed 

rule change would adopt the identical 

initial listing price requirement 

contained in the NYSE Amex Company 

Guide. As such, Nasdaq believes that its 

listing requirements would remain 

substantially similar to those of NYSE 

Amex, as required for covered securities 

under Section 18 of the Securities Act.31

In addition, as noted, the proposed rule 

change would require that any company 

qualifying under this new price 

alternative also meet the requirements 

of Rule 3a51–1(g) 32 and that these 

securities therefore would not be 

considered ‘‘penny stocks’’ under the 

Act at the time of their listing. To the 

extent that a company no longer 

qualified for the exclusion under Rule 

3a51–1(g), or any of the other exclusions 

in Rule 3a51–1, Nasdaq would notify 

the public by including the company in 

a list published on Nasdaq’s Web site. 

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. 

Instead, the proposed rule change 

would enhance the competition 

between exchanges, and benefit 

companies and their investors, by 

allowing companies that today are 

forced to list on NYSE Amex an 

alternative listing venue. 

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. 


wreier-aviles on DSK5TPTVN1PROD with NOTICES
3024 Federal Register / Vol. 77, No. 13 / Friday, January 20, 2012 / Notices 

33 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3The Exchange is proposing to create two Sales 

Fee Rules, one for equities and one for options. Rule 

7002 will be relocated in part. The Exchange 

proposes to create a new ‘‘Sales Fee—Options’’ Rule 

in Section 8 of Chapter XV which Rule would 

replicate the Sales Fee Rule, specifically relocating 

paragraphs 7002(b) and (d), applicable to options. 

Rule 7002(a) and (c) would remain in Rule 7002, 

as those paragraphs apply to equities. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Within 45 days of the date of 

publication of this notice in the Federal 

Register or within such longer period (i) 

as the Commission may designate up to 

90 days of such date if it finds such 

longer period to be appropriate and 

publishes its reasons for so finding or 

(ii) as to which the Exchange consents, 

the Commission will: (a) By order 

approve or disapprove such proposed 

rule change, or (b) institute proceedings 

to determine whether the proposed rule 

change should be disapproved. 

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 rulecomments@sec.gov. Please include File 

Number SR–NASDAQ–2012–002 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–2012–002. 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 

a.m. and 3 p.m. Copies of the filing also 

will be available for inspection and 

copying at the principal office of 

Nasdaq. 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–2012–002 and 

should be submitted on or before 

February 10, 2012. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.33

Kevin M. O’Neill, 

Deputy Secretary. 

[FR Doc. 2012–1045 Filed 1–19–12; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–66158; File No. SR– 

NASDAQ–2012–006] 

Self-Regulatory Organizations; 

NASDAQ Stock Market LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change Relating to 

Options Fees 

January 13, 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 6, 

2012, The NASDAQ Stock Market LLC 

(‘‘NASDAQ’’ or ‘‘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 NASDAQ. The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

change from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The NASDAQ Stock Market LLC 

proposes to relocate certain rules in the 

NASDAQ Rulebook. Specifically, the 

Exchange proposes to relocate the 

following Rules: (i) Rule 7007, 

Collection of Exchange Fees and Other 

Claims—NASDAQ Options Market; (ii) 

Rule 7046, Nasdaq Options 

Maintenance Tool, (iii) Rule 7050, 

NASDAQ Options Market—Fees; (iv) 

Rule 7053, NASDAQ Options Market— 

Access Services; (v) Rule 7054, 

NASDAQ Options Market Data 

Distributor Fees; (vi) Rule 7056, 

NASDAQ Options Fee Disputes; and 

(vii) Rule 7059, NASDAQ Options 

Regulatory Fee. The Exchange is also 

proposing to relocate a portion of Rule 

7002, Sales Fee, which applies to 

options, by replicating that fee in the 

new ‘‘Options Fees’’ Chapter. The 

Exchange is proposing to relocate these 

Rules to a new Chapter under the 

Options Rules. 

The text of the proposed rule change 

is available on the Exchange’s Web site 

at http:// 

www.nasdaq.cchwallstreet.com, at the 

principal office of the Exchange, 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. 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 

NASDAQ proposes to create a new 

Chapter in the NASDAQ Rulebook and 

relocate certain options fees, which 

apply only to Options Participants, to 

this new Chapter to further clarify its 

fees. Specifically, the Exchange 

proposes to create a new ‘‘Chapter XV,’’ 

entitled ‘‘Options Fees’’ under the 

Options Rules portion of the Rulebook. 

The Exchange proposes to relocate the 

below listed Rules, currently in the 7000 

Series of the Rulebook, to this new 

Chapter under the Options Rules.3 This 

is not a substantive change, but rather 

merely a relocation of Rule text within 

the Rulebook. 

The Exchange proposes to specifically 

relocate the following Rules to the 


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