23456 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Notices 

10See id. 

11 In approving these proposed rule changes, the 

Commission has considered the proposed rules’ 

impact on efficiency, competition, and capital 

formation. 15 U.S.C. 78c(f). 

12 15 U.S.C. 78o–3(b)(6). 

13Currently, FINRA must manually match nontape reports with associated tape reports for 

purposes of monitoring member compliance with 

trade reporting rules. FINRA stated that by 

requiring that firms identify the market center or 

facility to which the associated tape report was 

submitted, the universe of tape reports that must be 

reviewed as part of the matching process will be 

significantly narrowed, and accordingly, the 

effectiveness and certainty of the matching process 

will be enhanced. 

14See supra note 4. 

15See SIFMA Letter and Citigroup Letter. 

16See Amendment No. 2. 

17See FINRA Regulatory Notice 09–08 (January 

2009). 

18The same approach would apply to reporting 

to other FINRA Facilities. 

19 15 U.S.C. 78s(b)(2). 

20 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

addition, where a member routes an 

order and has no basis for identifying 

where the trade was ultimately executed 

or, in the case of over-the-counter 

trades, where the trade was ultimately 

reported, the member will be required to 

populate the Related Market Center field 

with a standard indicator: ‘‘unknown 

venue.’’ 10

III. Discussion 

After careful review, the Commission 

finds that the proposed rule change is 

consistent with the requirements of the 

Act and the rules and regulations 

thereunder applicable to a national 

securities association.11 In particular, 

the Commission finds that the proposed 

rule change is consistent with Section 

15A(b)(6) of the Act,12 in that it is 

designed, among other things, to 

prevent fraudulent and manipulative 

acts and practices; to promote just and 

equitable principles of trade; 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 Commission believes that the 

proposed rule change will result in a 

more complete and accurate audit trail 

and ensure that members are not using 

non-tape reports to circumvent FINRA 

or Commission rules. FINRA stated that 

currently it is difficult to determine 

with certainty where the associated 

trade was reported, especially if that 

trade was reported to an exchange or 

another FINRA Facility.13

As noted above, the Commission 

received three comment letters in 

response to the Notice.14 The three 

commenters generally oppose the 

proposal and state that the potential 

costs, including required system 

changes, outweigh the benefits of the 

proposal. In addition, the commenters 

raise several concerns about the 

practical difficulties of complying with 

the proposed rule change. First, the 

commenters indicate it would be 

difficult (if not impossible) to identify 

multiple exchanges and/or FINRA 

Facilities where a single non-tape report 

is associated with multiple executions 

on multiple markets. Second, the three 

commenters point out that when a firm 

routes an order, it may not know the 

ultimate execution destination. Third, 

the commenters argue that even if a firm 

knows that a trade in an NMS stock was 

executed over-the-counter, the firm may 

not know where the trade was reported 

because FINRA’s Uniform Service 

Bureau/Executing Broker Agreement 

(‘‘USBEBA’’) allows the reporting party 

to report to any TRF or ADF, without 

providing notice to the other party to 

the trade.15

FINRA replied to the comments in 

Amendment No. 2 and revised and 

clarified the original proposal to 

alleviate the commenters’ concerns. In 

particular, FINRA clarified that where a 

single non-tape report is related to 

multiple tape reports: (1) If the multiple 

tape reports were made to a single 

exchange or, in the case of over-thecounter trades, a single FINRA Facility, 

that exchange or facility must be 

reflected on the single non-tape report; 

and (2) if the multiple tape reports were 

made to different exchanges and/or 

FINRA Facilities, the member will be 

required to populate the Related Market 

Center field with a standard indicator: 

‘‘multiple venues.’’ 16 In addition, 

FINRA provided that where a member 

routes an order and has no basis for 

identifying the relevant exchange or 

FINRA Facility to determine where the 

trade was ultimately executed or, in the 

case of over-the-counter trades, where 

the trade was ultimately reported, the 

member will be required to populate the 

Related Market Center field with a 

standard indicator: ‘‘unknown venue.’’ 

To the extent technological 

enhancements are required, FINRA 

stated that it intends to provide 

adequate time for members to make the 

necessary changes and revised the 

original proposal to provide for the 

implementation of the proposed rule 

change at least 90 days following 

implementation on August 3, 2009, of 

the amendments to FINRA trade 

reporting rules adopted pursuant to SR– 

FINRA–2008–011.17

The Commission believes that 

FINRA’s approach that tailors the 

proposed reporting requirement to 

reflect informational limitations 

described by the commenters is 

reasonable, in that it reflects FINRA’s 

expectation that members provide as 

much information as is reasonably 

available at the time the non-tape report 

is submitted. Further, the Commission 

notes that FINRA clarified that where a 

member routes to an exchange and has 

a reasonable basis for reporting that the 

trade was executed on that exchange, 

FINRA would not consider it a violation 

if, unbeknownst to the member, the 

trade is ultimately executed somewhere 

other than the routed exchange.18 The 

Commission also notes that it would 

expect FINRA to incorporate the 

proposed changes into its surveillance 

and examination programs to ensure 

that members are not improperly using 

the ‘‘multiple venue’’ or ‘‘unknown 

venue’’ indications. 

IV. Conclusion 

For the foregoing reasons, the 

Commission finds that the proposed 

rule change is consistent with the Act 

and the rules and regulations 

thereunder applicable to a national 

securities association. 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,19 that the 

proposed rule change (SR–FINRA– 

2007–012), as modified by Amendment 

Nos. 1 and 2 thereto, be and hereby is 

approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.20

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–11607 Filed 5–18–09; 8:45 am] 

BILLING CODE 8101–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59915; File No. SR– 

NASDAQ–2009–040] 

Self-Regulatory Organizations; The 

NASDAQ Stock Market LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change to the Nasdaq 

Listing Rules To Conform Those Rules 

With the Prior Marketplace Rules and 

Make Certain Technical Corrections 

May 13, 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 April 27, 

2009, The NASDAQ Stock Market LLC 

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

Exchange Commission (‘‘Commission’’) 

mstockstill on PROD1PC66 with NOTICES

Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Notices 23457 

3 17 CFR 240.19b–4(f)(6). 

4Securities Exchange Act Release No. 59663 

(March 31, 2009), 74 FR 15552 (April 6, 2009) (SR– 

NASDAQ–2009–018). 

5The text of Nasdaq’s prior rules is included in 

Exhibit 5B of SR–NASDAQ–2009–018, supra note 

4, available at: http://nasdaq.cchwallstreet.com/ 

NASDAQ/pdf/nasdaq-filings/2009/SR–NASDAQ– 

2009–018.pdf. 

6See prior Rule 4350(a)(1). Note that under this 

rule, as with Rule 5615(a)(3), a foreign private 

issuer was required to comply with the requirement 

to disclose the receipt of an audit opinion that 

expresses doubt about the ability of the company 

to continue as a going concern, which was 

contained in prior Rule 4350(b)(1)(B). 

7Although New Listing Rules 5400 and 5500 

contain the requirement for listed companies to pay 

fees, Nasdaq believes it would be more transparent 

to also include this requirement in the list of 

obligations for listed companies. 

8 15 U.S.C. 78f. 

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

the proposed rule change as described 

in Items I and II below, which Items 

have been 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 

Nasdaq Listing Rules to conform those 

rules with the prior Marketplace Rules 

and make certain technical corrections. 

The text of the proposed rule change is 

available from Nasdaq’s Web site at 

http://nasdaq.cchwallstreet.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 

On March 12, 2009, Nasdaq filed a 

proposed rule change to revise the rules 

relating to the qualification, listing, and 

delisting of companies listed on, or 

applying to list on, Nasdaq to improve 

the organization of the rules, eliminate 

redundancies and simplify the rule 

language.4 These rules (the ‘‘New 

Listing Rules’’) were effective April 13, 

2009. Nasdaq has observed that the 

March filing introduced two inadvertent 

changes in the New Listing Rules. This 

filing modifies those rules to revert to 

the requirements as they previously 

existed 5 and makes other technical and 

clarifying corrections to the rules. 

Specifically, Nasdaq proposes to 

modify Rule 5405(b)(3)(A) to correct the 

requirement for companies seeking to 

list on the Nasdaq Global Market under 

the Market Value Standard. Previously, 

under Rule 4420(c)(6)(A), a currently 

traded company that applied to list 

under this standard was required to 

meet the market value of listed 

securities requirement and the bid price 

requirement for 90 consecutive trading 

days prior to applying for listing. As 

adopted in Rule 5405(b)(3)(A), this 

requirement was inadvertently changed 

to 90 consecutive calendar days. 

In addition, Nasdaq proposes to 

modify Rules 5250(d) and 5615 and IM– 

5615–3 to allow a Foreign Private Issuer 

to follow its home country practice in 

lieu of the requirement to distribute 

interim and annual reports. Previously, 

the provision allowing Foreign Private 

Issuers to follow their home country 

practice applied to all of Rule 4350 

(subject to certain specified exceptions), 

including the requirement to distribute 

reports set forth in prior Rule 4350(b).6

In the New Listing Rules, while most of 

the requirements of Rule 4350 were 

moved to the Rule 5600 Series, the 

requirement to distribute reports was 

moved to Rule 5250(d). However, no 

corresponding cross-reference was 

included to specify the ability of a 

Foreign Private Issuer to follow its home 

country practice in lieu of this 

requirement. The proposed rule change 

would correct that omission. 

Nasdaq also proposes to add a new 

Rule 5250(f), clarifying that companies 

listed on Nasdaq are required to pay 

their listing fees as a condition to 

continued listing.7 This proposed 

requirement, which was previously 

contained in Rules 4310(c)(13) and 

4320(e)(11), would be analogous to the 

requirement contained in Rule 5210(d) 

applicable to companies applying to list 

on Nasdaq. 

Finally, Nasdaq proposes to make 

certain technical corrections. First, 

Nasdaq proposes to modify Rule 5255, 

relating to Direct Registration Programs, 

to eliminate a provision that expired on 

March 31, 2009. In addition, Nasdaq 

proposes to correct certain 

typographical errors, such as adding 

omitted words, deleting repeated and 

unnecessary words, renumbering certain 

provisions, and correcting 

capitalization, spacing, punctuation and 

cross references in Rules 5000, 5600, 

5615, 5635, 5740, 5820, and 5900, IM– 

5615–2 and IM–5615–3. 

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 with Sections [sic] 6(b)(5) of 

the Act,9 in particular in that 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. The proposed rule 

change is designed to revert to the 

previously approved requirements of 

certain listing standards that were 

inadvertently changed when adopting 

the New Listing Rules and correct 

typographical errors in the 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 

Because the proposed rule change: 

(i) Does not significantly affect the 

protection of investors or the public 

interest; (ii) does not impose any 

significant burden on competition; and 

(iii) 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, the proposed rule change has 

become effective pursuant to Section 

mstockstill on PROD1PC66 with NOTICES

23458 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Notices 

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

11 17 CFR 240.19b–4(f)(6). 

12 17 CFR 240.19b–4(f)(6)(iii). In addition, Rule 

19b–4(f)(6)(iii) requires that a self-regulatory 

organization submit to the Commission 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, or such shorter time as designated by the 

Commission. Nasdaq has satisfied this requirement. 

13 Id. 

14For the 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). 15 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

19(b)(3)(A) of the Act 10 and Rule 19b– 

4(f)(6) thereunder.11

A proposed rule change filed under 

Rule 19b–4(f)(6) normally may not 

become operative prior to 30 days after 

the date of filing.12 However, Rule 19b– 

4(f)(6)(iii) 13 permits the Commission to 

designate a shorter time if such action 

is consistent with the protection of 

investors and the public interest. 

Nasdaq has requested that the 

Commission waive the 30-day operative 

delay. Nasdaq requests this waiver so 

that these corrections can be 

immediately operative, eliminating any 

potential confusion caused by the 

unintended changes in the New Listing 

Rules. Nasdaq further believes that the 

proposed rule change does not 

significantly affect the protection of 

investors or the public interest because 

it merely conforms the recently adopted 

Nasdaq listing rules with the previously 

approved Nasdaq rules and corrects 

typographical errors. 

The Commission notes that the 

changes being proposed do not present 

any new regulatory issues. The changes 

simply conform recently revised listing 

rules to previously approved rules, 

correct typographical errors, and make 

certain clarifying changes. For these 

reasons, the Commission believes that 

waiving the 30-day operative delay is 

consistent with the protection of 

investors and the public interest, and 

designates the proposed rule change to 

be operative upon filing with the 

Commission.14

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–2009–040 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

Station Place, 100 F Street, NE., 

Washington, DC 20549–1090. 

All submissions should refer to File 

Number SR–NASDAQ–2009–040. 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 such 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–2009–040 and should be 

submitted on or before June 9, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.15

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–11618 Filed 5–18–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59912; File No. SR–ISE– 

2009–26] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change by 

International Securities Exchange, LLC 

Relating to Changes to the Fee 

Schedule 

May 13, 2009. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’),1 and Rule 19b–4 thereunder,2

notice is hereby given that on May 5, 

2009, the International Securities 

Exchange, LLC (the ‘‘Exchange’’ or the 

‘‘ISE’’) 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 selfregulatory organization. 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 is proposing to amend 

its Schedule of Fees to make clarifying 

changes. The text of the proposed rule 

change is available on the Exchange’s 

Internet Web site at http://www.ise.com. 

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 

self-regulatory organization 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 self-regulatory organization 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 

(a) Purpose—The purpose of this 

proposed rule change is to make 

clarifying changes to the Exchange’s 

Schedule of Fees. On April 27, 2009, the 

Exchange submitted SR–ISE–2009–21, a 

proposed rule change to eliminate 

customer fees in multiply-listed 

mstockstill on PROD1PC66 with NOTICES