[Federal Register Volume 69, Number 24 (Thursday, February 5, 2004)]
[Notices]
[Pages 5630-5631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2330]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-49133; File No. SR-NASD-2003-198]


Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change by the National Association of 
Securities Dealers, Inc. Relating to Waiver of Certain Listing Fees

January 28, 2004.
    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 29, 2003, 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'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by Nasdaq. Nasdaq filed 
this proposal pursuant to section 19(b)(3)(A) of the Exchange Act \3\ 
and Rule 19b-4(f)(1) thereunder,\4\ which renders the proposal 
effective upon filing with the Commission. 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.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(1).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    Nasdaq proposes to waive certain listing fees. Below is the text of 
the proposed rule change. Proposed new language is underlined.
* * * * *

4500 Issuer Listing Fees

IM-4500-1 Waiver of Fees Upon Application in Certain Merger Situations

    Rules 4510(c)(2), 4510(d)(3), and 4520(c)(3) provide Nasdaq with 
the discretion to waive all or part of the annual listing fees 
prescribed in this Rule 4500 series. Pursuant to that authority, Nasdaq 
has determined to permit a Nasdaq issuer that completes a merger with 
another Nasdaq issuer during the first 90 days of a calendar year to 
apply for and receive a waiver for 75% of the annual fees assessed to 
the acquired Nasdaq issuer. Issuers must apply for the credit no later 
than June 30 of the year in which the merger occurred. Applications 
should be addressed to: Finance Department CCG Billing Operations, The 
Nasdaq Stock Market Inc., 9513 Key West Avenue, 4th Floor, Rockville, 
Maryland 20850.
* * * * *

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
    NASD Rules 4510(c)(2), 4510(d)(3), and 4520(c)(3) provide Nasdaq 
with the discretion to waive all or part of the annual listing fees 
prescribed in this NASD Rule 4500 series. Pursuant to that authority, 
Nasdaq has determined to permit a Nasdaq issuer that completes a merger 
with another Nasdaq issuer during the first 90 days of a calendar year 
to apply for and receive a waiver for 75% of the annual fees assessed 
to the acquired Nasdaq issuer. Issuers must apply for the credit no 
later than June 30 of the year in which the merger occurred. Nasdaq has 
determined to take this action because it believes that it is equitable 
to provide a partial credit for annual listing fees in order to avoid 
the assessment of two fees where a merger between two currently listed 
Nasdaq issuers has occurred within the first 90 days of a billing year.
2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with 
the provisions of section 15A(b)(5)\5\ and 15A(b)(6)\6\ of the Act. 
Section 15A(b)(5) of the Act \7\ requires that the rules of the NASD 
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 the NASD operates or controls. Nasdaq believes 
that this proposal, which provides for a partial waiver of annual fees 
in certain merger situations, is an equitable allocation of fees.
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    \5\ 15 U.S.C. 78o-3(b)(5).
    \6\ 15 U.S.C. 78o-3(b)(6).
    \7\ 15 U.S.C. 78o-3(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.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants or Others

    Nasdaq neither solicited nor received written comments with respect 
to the proposed rule change.

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)(i) of the Act \8\ and Rule 19b-4(f)(1) thereunder,\9\ 
because it constitutes a stated policy, practice or interpretation with 
respect to the meaning, administration, or enforcement of an existing 
rule, and therefore the proposed rule change is effective immediately 
upon filing.
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    \8\ 15 U.S.C. 78s(b)(3)(A)(i).
    \9\ 17 CFR 240.19b-4(f)(1).
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    At any time within 60 days of the filing of a rule change pursuant 
to section 19(b)(3)(A) of the Act,\10\ the Commission may summarily 
abrogate the 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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    \10\ 15 U.S.C. 78s(b)(3)(A).
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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. Persons making written submissions 
should file six copies thereof with the Secretary, Securities and 
Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. 
Comments should be submitted electronically at the following e-mail 
address: <a href="/cdn-cgi/l/email-protection#9be9eef7feb6f8f4f6f6fef5efe8dbe8fef8b5fcf4ed"><span class="__cf_email__" data-cfemail="a0d2d5ccc58dc3cfcdcdc5ced4d3e0d3c5c38ec7cfd6">[email protected]</span></a>.

[[Page 5631]]

    All comment letters should refer to File No. SR-NASD-2003-198. 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, comments should be sent in hard copy or by e-mail but not 
by both methods. 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 will also be available for inspection and copying at the 
principal office of the NASD. All submissions should be submitted by 
February 26, 2004.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Jill M. Peterson,
Assistant Secretary.
[FR Doc. 04-2330 Filed 2-4-04; 8:45 am]
BILLING CODE 8010-01-P


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