Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Notices 49515 

12 15 U.S.C. 78f(b). 

13 15 U.S.C. 78f(b)(5). 

14 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3 17 CFR 240.19b–4(f)(6). 

4Changes are marked to the rule text that appears 

in the electronic manual of Nasdaq found at http:// 

nasdaq.cchwallstreet.com. 

subject them to more stringent 

requirements. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

Section 6(b) 12 of the Act, in general, and 

furthers the objectives of Section 6(b)(5) 

of the Act,13 in particular in that it is 

designed 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 

Exchange believes that the proposed 

rule change is consistent with Section 

6(b)(5) of the Act in that, as discussed 

above under the heading ‘‘Purpose’’, its 

purpose is to apply more stringent 

initial listing requirements to a category 

of companies that have raised regulatory 

concerns, thereby furthering the goal of 

protection of investors and the public 

interest. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange does not believe that 

the proposed rule change will impose 

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 

No written comments were solicited 

or received with respect to the proposed 

rule change. 

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 self-regulatory 

organization 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, as amended, 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 rulecomments@sec.gov. Please include File 

Number SR–NYSE–2011–38 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–NYSE–2011–38. 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 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 NYSE. 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–NYSE–2011–38, and 

should be submitted on or before 

August 31, 2011. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.14

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. 2011–20243 Filed 8–9–11; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–65038; File No. SR– 

NASDAQ–2011–100] 

Self-Regulatory Organizations; The 

NASDAQ Stock Market LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change To Modify the 

Defined Term ‘‘Closed-End Fund’’ in 

Rules 5910 and 5920 

August 5, 2011. 

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 July 26, 

2011, 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 substantially prepared by 

Nasdaq. Nasdaq has designated the 

proposed rule change as effecting a 

change described under Rule 19b–4(f)(6) 

under the Act,3 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 the Substance 

of the Proposed Rule Change 

Nasdaq proposes to modify the 

defined term ‘‘Closed-End Fund’’ in 

Rules 5910 and 5920 to include 

business development companies. 

The text of the proposed rule change 

is below. Proposed new language is in 

italics; proposed deletions are in 

brackets.4

5910. The NASDAQ Global Market 

(a) Entry Fee 

(1)–(2) No change. 

(3) A closed-end management investment 

company [registered] regulated under the 

Investment Company Act of 1940, as 

amended (a ‘‘Closed-End Fund’’), that 

submits an application for listing on the 

Nasdaq Global Market shall pay to Nasdaq an 


emcdonald on DSK2BSOYB1PROD with NOTICES
49516 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Notices 

5 15 U.S.C. 80a–1 et seq. 

6Under Section 2(a)(48) of the 1940 Act, 15 

U.S.C. 80a–2(a)(48), a business development 

company is a closed-end company which elects to 

be subject to certain provisions of the 1940 Act. 

Such a company is exempt from the other 

requirements of the 1940 Act, including the 

registration requirements of Section 8, 15 U.S.C. 

80a–8, pursuant to Section 6(f)(1), 15 U.S.C. 80a– 

6(f)(1). 

7For example, when Nasdaq recently adopted a 

cap on Listing of Additional Shares fees for closedend funds, Nasdaq described a closed-end fund as 

a type of company ‘‘regulated’’ under the 1940 Act. 

Exchange Act Release No. 63732 (January 19, 2011), 

76 FR 4401 (January 25, 2011) (SR–NASDAQ–2011– 

007). In adopting this cap, Nasdaq’s intent was for 

it to apply to business development companies and, 

in fact, the rule change adopting a cap for all 

closed-end funds replaced a filing where Nasdaq 

proposed to adopt the cap only for business 

development companies. See SR–NASDAQ–2010– 

119 (withdrawn), available at http:// 

nasdaq.cchwallstreet.com/NASDAQ/pdf/nasdaqfilings/2010/SR-NASDAQ-2010-119.pdf. 

8 15 U.S.C. 78f. 

9 15 U.S.C. 78f(b)(5). 

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

11 17 CFR 240.19b–4(f)(6). 

entry fee of $5,000 (of which $1,000 

represents a non-refundable application fee). 

(4)–(10) No change. 

(b)–(f) No change. 

5920. The Nasdaq Capital Market 

(a) Entry Fee 

(1)–(2) No change. 

(3) A closed-end management investment 

company [registered] regulated under the 

Investment Company Act of 1940, as 

amended (a ‘‘Closed-End Fund’’), that 

submits an application for listing on the 

Nasdaq Capital Market shall pay to Nasdaq 

an entry fee of $5,000 (of which $1,000 

represents a non-refundable application fee). 

(4)–(9) No change. 

(b)–(e) 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 

A business development company is 

a type of closed-end management 

investment company that is regulated 

under the Investment Company Act of 

1940 (the ‘‘1940 Act’’).5 While Nasdaq 

has historically treated business 

development companies as closed-end 

funds for purposes of computing listing 

fees, in defining a closed-end fund for 

these purposes Nasdaq inadvertently 

excluded business development 

companies. Specifically, Nasdaq defines 

a closed-end fund in Rules 5910(a)(3) 

and 5920(a)(3) as a closed-end 

management investment company that 

is registered under the 1940 Act. While 

business development companies are 

regulated under the 1940 Act, they are 

not registered under the 1940 Act.6

It was never Nasdaq’s intent to 

exclude business development 

companies from the definition of a 

closed-end fund and Nasdaq has 

historically treated them as closed-end 

funds 7 and charged them the fees 

applicable to closed-end funds. In this 

filing, Nasdaq proposes to modify the 

definition of a closed-end fund 

contained in Rules 5910(a)(3) and 

5920(a)(3) to include business 

development companies. As revised, a 

closed-end fund will be defined as a 

closed-end management investment 

company regulated under the 1940 Act. 

2. Statutory Basis 

Nasdaq believes that the proposed 

rule change is consistent with the 

provisions of Section 6 of the Act,8 in 

general, and Section 6(b)(5) of the Act,9

in particular, because it 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. 

Specifically, Nasdaq believes the 

proposed rule change will clarify 

Nasdaq’s treatment of business 

development companies as closed-end 

funds, thereby eliminating any 

confusion surrounding Nasdaq’s rules. 

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) 

of the Act 10 and Rule 19b–4(f)(6) 11

thereunder in that it effects a change 

that: (i) Does not significantly affect the 

protection of investors or the public 

interest; (ii) does not impose any 

significant burden on competition; and 

(iii) by its terms, does not become 

operative for 30 days after the date of 

the filing, or such shorter time as the 

Commission may designate if consistent 

with the protection of investors and the 

public interest. In addition, Nasdaq 

provided the Commission with written 

notice of its intent to file the proposed 

rule change, along with a brief 

description and text of the proposed 

rule change, at least five business days 

prior to the date of filing of the 

proposed rule change. The proposed 

rule change will clarify the treatment of 

business development companies under 

Nasdaq’s rules and consistent with the 

way Nasdaq has historically applied 

those rules. Therefore, Nasdaq believes 

it does not significantly affect the 

protection of investors or the public 

interest or raise any novel or significant 

regulatory issues. 

At any time within 60 days of the 

filing of the proposed rule change, the 

Commission 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 of 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: 


emcdonald on DSK2BSOYB1PROD with NOTICES
Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Notices 49517 

12 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3 17 CFR 240.19b–4(f)(6). 

4See Securities Exchange Act Release Nos. 63028 

(October 1, 2010), 75 FR 62443 (October 8, 2010) 

(SR–NASDAQ–2010–099) (approval order), 61802 

(March 30, 2010), 75 FR 17193 (April 5, 2010) (SR– 

Phlx-2010–05) (approval order); 61198 (December 

17, 2009), 74 FR 68880 (December 29, 2009) (SR– 

CBOE–2009–078) (approval order); and 59287 

(January 23, 2009), 74 FR 5694 (January 30, 2009) 

(SR–ISE–2006–26) (approval order). A filing by 

NYSE Amex LLC (‘‘NYSE Amex’’) proposing a 

similar Professional designation was based on the 

Phlx, ISE, and CBOE proposals. See Securities 

Exchange Act Release No. 61818 (March 31, 2010), 

75 FR 17457 (April 6, 2010) (SR–NYSEAmex–2010– 

18) (approval order). The cited filings discuss, 

among other things, the need for a Professional 

designation to be applied by members of the 

respective exchanges because the systems of such 

exchanges differentiate for execution or processing 

purposes based on order origin. BOX does not 

similarly differentiate among orders based on their 

origin. 

5See Chapter I, Section 1(a)(42) of the BOX Rules. 

Many BOX Participants are also members of other 

options exchanges such as, for example, ISE, CBOE, 

or Phlx. Order Flow Provider (‘‘OFP’’) is defined in 

Chapter I, Section 1(a)(48) as those Options 

Participants representing as agent Customer Orders 

on BOX and those non-Market Maker Participants 

conducting proprietary trading. Market Maker is 

defined in Chapter I, Section 1(a)(31) of the BOX 

Rules as an Options Participant registered with the 

Continued 

Electronic Comments 

Use the Commission’s Internet 

comment form (http://www.sec.gov/ 

rules/sro.shtml); or 

Send an e-mail to rulecomments@sec.gov. Please include File 

Number SR–NASDAQ–2011–100 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–2011–100. 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 website viewing and 

printing in the Commission’s Public 

Reference Room 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–2011–100 and 

should be submitted on or before 

August 31, 2011. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.12

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. 2011–20274 Filed 8–9–11; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–65036; File No. SR–BX– 

2011–049] 

Self-Regulatory Organizations; 

NASDAQ OMX BX, Inc.; Notice of Filing 

and Immediate Effectiveness of 

Proposed Rule Change To Adopt a 

Definition of ‘‘Professional’’ and 

Require That Professional Orders Be 

Appropriately Marked by BOX Options 

Participants 

August 4, 2011. 

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 July 26, 

2011, NASDAQ OMX BX (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 Exchange. The 

Exchange has designated the proposed 

rule change as constituting a noncontroversial rule change under Rule 

19b–4(f)(6) under the Act,3 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 

The Exchange proposes to amend 

proposes to amend [sic] Chapter I, 

Section 1 (Definitions) of the Trading 

Rules of the Boston Options Exchange 

Group, LLC (‘‘BOX’’) to adopt a 

definition of ‘‘Professional’’ on BOX and 

require that all Professional orders be 

appropriately marked by BOX Options 

Participants. The text of the proposed 

rule change is available on the 

Exchange’s Web site at http:// 

nasdaqomxbx.cchwallstreet.com, on the 

Commission’s Web site at http:// 

www.sec.gov, 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 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. 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 

The purpose of this proposal is to 

amend Chapter I, Section 1 (Definitions) 

to adopt a definition of ‘‘Professional’’ 

on BOX and require that all Professional 

orders be appropriately marked. 

This filing is similar to the recent 

filings of the NASDAQ Stock Market 

LLC (for the NASDAQ Options Market 

(‘‘NOM’’), PHLX NASDAQ OMX, Inc. 

(‘‘Phlx’’), the International Securities 

Exchange, Inc. (‘‘ISE’’), and Chicago 

Board Options Exchange, Incorporated, 

(‘‘CBOE’’), which dealt with establishing 

a new definition of ‘‘Professional’’ as a 

person or entity that places a certain 

high volume of orders in listed options 

per day on average during a calendar 

month in his or her own beneficial 

account.4

Background 

A BOX Options Participant 

(‘‘Participant’’) is a firm or organization 

that is registered with the Exchange 

pursuant to Chapter II of the BOX 

Trading Rules for purposes of 

participating in options trading on BOX 

as an ‘‘Order Flow Provider’’ or ‘‘Market 

Maker.’’ 5


emcdonald on DSK2BSOYB1PROD with NOTICES