5630 Federal Register / Vol. 69, No. 24 / Thursday, February 5, 2004 / Notices 

9 17 CFR 200.30–3(a)(12).

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).

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).

8 15 U.S.C. 78s(b)(3)(A)(i).

9 17 CFR 240.19b–4(f)(1).

10 15 U.S.C. 78s(b)(3)(A).

For the Commission, by the Division of 

Market Regulation, pursuant to delegated 

authority.9

Jill M. Peterson, 

Assistant Secretary.

[FR Doc. 04–2337 Filed 2–4–04; 8:45 am] 

BILLING CODE 8010–01–P

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.

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.

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.

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.

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: rule-comments@sec.gov. 

Federal Register / Vol. 69, No. 24 / Thursday, February 5, 2004 / Notices 5631

11 17 CFR 200.30–3(a)(12).

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

2 17 CFR 240.19b–4.

3 15 U.S.C. 78o–3(b)(5).

4 15 U.S.C. 78o–3(b)(6).

5 15 U.S.C. 78o–3(b)(5).

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

Jill M. Peterson, 

Assistant Secretary.

[FR Doc. 04–2330 Filed 2–4–04; 8:45 am] 

BILLING CODE 8010–01–P

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–49134; File No. SR–NASD–

2003–199] 

Self-Regulatory Organizations; Notice 

of Filing of Proposed Rule Change by 

the National Association of Securities 

Dealers, Inc. Relating to Listing Fee 

Waivers 

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’’ or 

‘‘Association’’), 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. 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 waive 

retroactively certain listing fees. Below 

is the text of the proposed rule change. 

Proposed new language is underlined.

* * * * *

4500 Issuer Listing Fees 

IM–4500–2 Waiver of Fees Upon 

Application in Certain Merger 

Situations Occurring in 2003

Rules 4510(c)(2), 4510(d)(3), and 

4520(d)(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 completed 

a merger with another Nasdaq issuer 

during the first 90 days of 2003 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, 2004. 

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(d)(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 completed 

a merger with another Nasdaq issuer 

during the first 90 days of 2003 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, 2004. 

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 

has occurred within the first 90 days of 

a given billing year. Nasdaq will send a 

communication to issuers regarding the 

availability of this waiver. 

2. Statutory Basis 

Nasdaq believes that the proposed 

rule change is consistent with the 

provisions of Section 15A(b)(5)3 and 

15A(b)(6)4 of the Act. Section 15A(b)(5) 

of the Act 5 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.

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 

Within 35 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 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,