Federal Register / Vol. 74, No. 91 / Wednesday, May 13, 2009 / Notices 22619 

10 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3Securities Exchange Act Release No. 59807 

(Apr. 21, 2009); 74 FR 19251 (Apr. 28, 2009). 

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views and 

arguments concerning the foregoing, 

including whether the proposal 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 

No. SR–ISE–2009–21 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 No. 

SR–ISE–2009–21. 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 changes 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, 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 ISE. 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 No. 

SR–ISE–2009–21 and should be 

submitted on or before June 3, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.10

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–11169 Filed 5–12–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59879; File No. SR– 

NASDAQ–2009–041] 

Self-Regulatory Organizations; The 

NASDAQ Stock Market LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change To Modify Fees 

for Members Using the NASDAQ 

Market Center and NASDAQ Options 

Market 

May 6, 2009. 

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 May 1, 

2009, The NASDAQ Stock Market LLC 

(‘‘NASDAQ’’ or 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 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 modify pricing 

for NASDAQ members using the Nasdaq 

Market Center. This proposed rule 

change, which is effective upon filing, 

will become operative on May 1, 2009. 

The text of the proposed rule change is 

available at http://nasdaqomx.cchwall

street.com/, at NASDAQ’s principal 

office, 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, 

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 is modifying the price of 

trading equities and options on 

NASDAQ in several ways. First, 

NASDAQ is increasing the rebate for 

providing liquidity in equities traded on 

NASDAQ for members that actively 

trade both equities and options on 

NASDAQ. Currently, NASDAQ offers 

rebates of $0.0020 to $0.00295 per share 

for all members that provide liquidity in 

equities traded on NASDAQ depending 

on the volume of liquidity provided in 

equities. 

Effective May 1, 2009, a member firm 

that accesses liquidity of more than 

200,000 contracts per day from The 

NASDAQ Options Market (‘‘NOM’’) and 

provides average daily volume of 

liquidity exceeding 25 million shares 

per day in the NASDAQ equities 

market, will be credited a rebate of 

$0.0029 for providing liquidity in 

securities listed on NASDAQ or the 

New York Stock Exchange (‘‘NYSE’’) or 

on other exchanges. A member that 

provides 25 million shares of liquidity 

per day in equities and does not have 

the requisite options participation 

receives a rebate of $0.0025 per share. 

Second, also effective May 1, 2009, 

member firms will have the opportunity 

to earn a waiver of applicable fees 

charged for executing Mid-point Pegged 

orders (as defined in Nasdaq Rule 

4751(f)(4)). Firms can earn this fee 

waiver by providing average daily 

volume of liquidity through the Nasdaq 

Market Center in all securities during 

the month of more than 125 million 

shares. 

Third, NASDAQ is implementing 

pricing for the routing strategy set forth 

in Nasdaq Rule 4758(a)(1)(A)(i), as set 

forth in SR–NASDAQ–2009–036.3

Specifically, NASDAQ modified Rule 

4758, Order Routing, to provide market 

participants with the option of entering 

orders that do not check the Nasdaq 

Market Center book prior to routing. 

Market participants using that routing 

strategy for all securities will be 

assessed a fee of $0.0005 per share 

executed for orders that execute on 

venues other than in the NYSE or 

NASDAQ OMX BX. For securities that 

utilize this strategy and that execute on 

22620 Federal Register / Vol. 74, No. 91 / Wednesday, May 13, 2009 / Notices 

4 15 U.S.C. 78f. 

5 15 U.S.C. 78f(b)(4). 

6 15 U.S.C. 78s(b)(3)(a)(ii) [sic]. 

7 17 CFR 240.19b–4(f)(2). 

NASDAQ OMX BX, NASDAQ will passthrough the fees or rebates currently 

assessed by NASDAQ OMX BX or 

$0.0006 rebate per share executed for 

Nasdaq-listed and NYSE-listed 

securities and $0.0014 charge per share 

executed for other securities. An order 

that is routed but does not execute and 

is returned to the Nasdaq Market Center 

will be assessed fees or provided rebates 

consistent with those approved for 

orders that execute or provide liquidity 

on the Nasdaq Market Center. 

Fourth, NASDAQ is also eliminating 

from Rule 7018 all provisions related to 

process that were in effect from April 1 

through April 14, 2009. 

2. Statutory Basis 

NASDAQ believes that the proposed 

rule change is consistent with the 

provisions of Section 6 of the Act,4 in 

general, and with Section 6(b)(4) of the 

Act,5 in particular, in that it provides for 

the equitable allocation of reasonable 

dues, fees and other charges among 

members and issuers and other persons 

using any facility or system which 

NASDAQ operates or controls. The 

proposed fee change applies uniformly 

to all similarly situated NASDAQ 

members. The impact of the changes 

upon the net fees paid by a particular 

market participant will depend upon a 

number of variables, including its 

monthly volume in equities and 

options, the prices of its quotes and 

orders (i.e., its propensity to add or 

remove liquidity) in equities and 

options, and the listing venue for the 

securities that it trades. 

NASDAQ notes that it operates in a 

highly competitive market in which 

market participants can readily direct 

order flow to competing venues if they 

deem fee levels at a particular venue to 

be excessive. The proposed rule change 

reflects a significant reduction in the 

overall cost of trading on NASDAQ. 

NASDAQ believes that the applicable 

fees and credits remain competitive 

with those charged by other venues and 

therefore continue to be reasonable and 

equitably allocated to those members 

that opt to direct orders to NASDAQ 

rather than competing venues. 

NASDAQ is also responding to the 

convergence of trading in which 

members simultaneously trade different 

asset classes within a single strategy. 

This has been true of equities and 

options trading which is increasing, and 

is now visible in equities and futures 

trading. For example, on April 1, 2009, 

NYSE Euronext LLC announced the 

‘‘Futures Incentive Program’’ or ‘‘FIP’’ 

which coordinates fee schedules 

between NYSE Liffe US and NYSE Arca 

with respect to trading gold and silver 

futures contracts on NYSE Liffe US and 

gold and silver based exchange traded 

funds on NYSE Arca. Like the NYSE 

Euronext FIP proposal, NASDAQ’s 

current proposal enables NASDAQ 

members to continue to recognize the 

full benefit of trading on NASDAQ. 

Additionally, NASDAQ and its 

members will both recognize additional 

operational and administrative 

efficiencies from linking the billing of 

equities and options trading. In addition 

to the efficiencies associated with 

existing volume discounts for equities 

trading, this proposal will enable 

NASDAQ to issue a single invoice to 

replace two invoices in various 

circumstances. 

Finally, this proposal is voluntary 

with respect to all firms and should be 

considered as one among many 

alternatives within NASDAQ’s current 

tiered pricing structure. For example, 

Nasdaq is offering to waive execution 

fees for Mid-point Pegged Orders for 

firms with high equities trading volume. 

This fee waiver lowers the total cost of 

trading on Nasdaq, and responds to a 

similar waiver by the ArcaNYSE [sic] 

Exchange. 

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 6 and 

subparagraph (f)(2) of Rule 19b–4 

thereunder.7 At any time within 60 days 

of the filing of the proposed rule change, 

the Commission may summarily 

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

Number SR–NASDAQ–2009–041 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–2009–041. 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 inspection and copying 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 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–2009–041 and should be 

submitted on or before June 3, 2009. 

Federal Register / Vol. 74, No. 91 / Wednesday, May 13, 2009 / Notices 22621 

8 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 No. 59189 

(December 31, 2008), 74 FR 731 (January 7, 2009) 

(Order Approving File No. SR–FINRA–2007–021). 

5See Securities Exchange Act Release No. 59358 

(February 4, 2009); 74 FR 6928 (February 11, 2009) 

(Order Approving File No. SR–FINRA–2008–051). 

6Most rules of the Customer and Industry Codes 

are identical, except for panel composition, 

references to document production lists that apply 

only in customer cases, and rules relating to 

employment discrimination and injunctive relief 

that apply only to industry claims. Wherever 

possible, the last three digits of the rule numbers 

in the Customer and Industry Codes are the same. 

Thus, the explanations in this filing for the 

proposed amendments in the Customer Code also 

apply to the proposed amendments in the Industry 

Code. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.8

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–11164 Filed 5–12–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59872; File No. SR–FINRA– 

2009–026] 

Self-Regulatory Organizations; 

Financial Industry Regulatory 

Authority, Inc.; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change to Implement NonSubstantive Changes to the Code of 

Arbitration Procedure for Customer 

Disputes and the Code of Arbitration 

Procedure for Industry Disputes 

May 6, 2009. 

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 Financial 

Industry Regulatory Authority, Inc. 

(‘‘FINRA’’) (f/k/a National Association 

of Securities Dealers, Inc. (‘‘NASD’’)) 

filed with the Securities and Exchange 

Commission (‘‘SEC’’ or ‘‘Commission’’) 

on April 17, 2009, the proposed rule 

change as described in Items I and II 

below, which Items have been prepared 

by FINRA. FINRA has designated the 

proposed rule change as constituting a 

‘‘non-controversial’’ rule change under 

paragraph (f)(6) of Rule 19b–4 under the 

Act,3 which renders the proposal 

effective upon receipt of this filing by 

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 

FINRA is proposing to amend the 

Code of Arbitration Procedure for 

Customer Disputes (‘‘Customer Code’’) 

and the Code of Arbitration Procedure 

for Industry Disputes (‘‘Industry Code’’) 

to correct typographical errors and 

implement other non-substantive 

technical changes. The text of the 

proposed rule change is available on 

FINRA’s Web site at http:// 

www.finra.org, at the principal office of 

FINRA 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, 

FINRA 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. FINRA 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 

FINRA is proposing several technical 

amendments to the Customer and 

Industry Codes that would correct 

typographical errors and implement 

other non-substantive changes. FINRA 

will discuss the proposed changes as 

they appear in the Codes, beginning 

with the proposed amendments to the 

Customer Code. 

Proposed Technical Amendments to the 

Customer Code 

Rule 12504—Motions to Dismiss 

On December 31, 2008, the 

Commission approved new Rules 12504 

and 13504 and amendments to Rules 

12206 and 13206, which establish 

procedures that govern motions to 

dismiss.4 FINRA is proposing to amend 

Rule 12504(b) to make a conforming 

change to the reference to 

‘‘subparagraph (a)’’ in the rule. In other 

rules of the Code, FINRA refers to 

lettered provisions by ‘‘paragraph,’’ not 

‘‘subparagraph.’’ Thus, for consistency 

in the Codes, FINRA is proposing to 

change the reference in Rule 12504(b) to 

‘‘paragraph (a).’’ 

Rule 12514—Pre-Hearing Exchange of 

Documents and Witness Lists Before 

Hearing 

FINRA is proposing to conform the 

spelling of the term ‘‘pre-hearing’’ in the 

title of Rule 12514 to other instances in 

the Codes where it is spelled without 

the hyphen. Thus, the term ‘‘prehearing’’ would be changed to 

‘‘prehearing.’’ 

Rule 12904(g)—Explained Decisions 

On February 4, 2009, the SEC 

approved a proposal to amend Rule 

12904 of the Customer Code and Rule 

13904 of the Industry Code to require 

arbitrators to provide an explained 

decision upon the joint request of the 

parties.5 FINRA is proposing to correct 

a typographical error in Rule 

12904(g)(2). The relevant sentence of the 

rule states that ‘‘an explained decision 

is a fact-based award stating the general 

reasons(s) for the arbitrators’ decision.’’ 

The word ‘‘reasons(s)’’ should be 

changed to ‘‘reason(s).’’ 

FINRA is also proposing to correct a 

typographical error in Rule 12904(g)(6). 

The paragraph states that ‘‘this 

paragraph (g) will not apply to 

simplified cases decided without a 

hearing under Rules 12800 or to default 

cases conducted under Rule 12801.’’ 

The phrase ‘‘Rules 12800’’ should be 

changed to ‘‘Rule 12800.’’ Further, 

FINRA is proposing to change the term 

‘‘pre-hearing’’ in Rule 12904(g)(3) to 

‘‘prehearing’’ to conform the spelling 

with other instances in the Codes. 

Proposed Technical Amendments to the 

Industry Code 6

Rule 13504—Motions To Dismiss 

For an explanation of the proposed 

amendment, see the relevant section 

under ‘‘Proposed Technical 

Amendments to the Customer Code’’ 

above. 

Rule 13514—Pre-Hearing Exchange of 

Documents and Witness Lists Before 

Hearing 

For an explanation of the proposed 

amendment, see the relevant section 

under ‘‘Proposed Technical 

Amendments to the Customer Code’’ 

above. 

Rule 13904(g)—Explained Decisions 

For an explanation of the proposed 

amendment, see the relevant section 

under ‘‘Proposed Technical 

Amendments to the Customer Code’’ 

above. 

2. Statutory Basis 

FINRA believes that the proposed rule 

change is consistent with the provisions