02-26026. Self-Regulatory Organizations; Order Approving a Proposed Rule Change by the National Association of Securities Dealers, Inc. Relating to Fees for Nasdaq's InterMarket

October 3, 2002.

On August 8, 2002, 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”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),^[1] and Rule 19b-4 thereunder,^[2] a proposed rule change to: (i) Modify the execution fees for Nasdaq InterMarket trades executed through the Intermarket Trading System (“ITS”) and Nasdaq's Computer Assisted Execution System (“CAES”); and (ii) establish a credit for the liquidity provider for executions via ITS and CAES.^[3] The proposed rule change was published in the Federal Register on September 3, 2002.^[4] The Commission received no comments on the proposed rule change. This order approves the proposed rule change.

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.^[5] Specifically, the Commission believes that the proposal is consistent with Section 15A(b)(5) of the Act,^[6] which requires that the rules of the association 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 association operates or controls, and Section 15A(b)(6) of the Act,^[7] which requires, among other things, that the rules of an association promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, protect investors and the public interest. The Commission believes that the proposed fee structure, which is similar to the fee structures in place for Nasdaq's SuperSOES and SuperMontage systems,^[8] may encourage members to provide additional liquidity to support executions through Nasdaq's InterMarket and thereby enhance its competitiveness.

It is therefore ordered, pursuant to Section 19(b)(2) of the Act,^[9] that the proposed rule change (SR-NASD-2002-109) is approved.

For the Commission, by the Division of Market Regulation, pursuant to the delegated authority.^[10]

Margaret H. McFarland,

Deputy Secretary.

Footnotes

1.  15 U.S.C. 78s(b)(1).

2.  17 CFR 240.19b-4.

3.  On June 13, 2002, the NASD, through its subsidiary, Nasdaq, filed a similar proposed rule change that was effective upon filing pursuant to Section 19(b)(3)(A) of the Act. 15 U.S.C. 78s(b)(3)(A). See Securities Exchange Act Release No. 46153 (July 1, 2002), 67 FR 45164 (July 8, 2002) (SR-NASD-2002-68). The proposal was summarily abrogated by Commission order on July 2, 2002. See Securities Exchange Act Release No. 46159, 67 FR 45775 (July 10, 2002).

4.  See Securities Exchange Act Release No. 46419 (August 27, 2002), 67 FR 56333.

5.  In approving this proposal, the Commission has considered its impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f).

6.  15 U.S.C. 78o-3(b)(5).

7.  15 U.S.C. 78o-3(b)(6).

8.  See Securities Exchange Act Release Nos. 44910 (October 5, 2001), 66 FR 52167 (October 12, 2001) (SR-NASD-2001-67); and 45906 (May 10, 2002), 67 FR 34965 (May 16, 2002) (SR-NASD-2002-44).

9.  15 U.S.C. 78s(b)(2).

10.  17 CFR 200.30-3(a)(12).