Nasdaq GEMX, LLC and Nasdaq MRX, LLC (the “Exchanges”) have filed with the Securities and Exchange Commission (the “Commission”) an application for an exemption under Section 36(a)(1) of the Securities Exchange Act of 1934 (“Exchange Act”) ^[1] from the rule filing requirements of Section 19(b) of the Exchange Act ^[2] with respect to certain rules of The Nasdaq Stock Market LLC (“Nasdaq”) that the Exchanges seek to incorporate by reference (“Nasdaq Rule 1000 Series”).^[3] Section 36(a)(1) of the Exchange Act,^[4] subject to certain limitations, authorizes the Commission to conditionally or unconditionally exempt any person, security, or transaction, or any class thereof, from any provision of the Exchange Act or rule thereunder, if necessary or appropriate in the public interest and consistent with the protection of investors.

The Exchanges each filed a proposed rule change ^[5] under Section 19(b) of the ( printed page 31773) Exchange Act to replace its existing membership rules, as set forth in General 3 of their respective rulebooks, with the Rule 1000 Series of the Nasdaq rulebook, as such rules may be in effect from time to time. Namely, in the proposed rule changes, the Exchanges each proposed to incorporate by reference the Nasdaq Rule 1000 Series such that Nasdaq Rule 1000 Series would be applicable to each of the Exchanges' respective applicants, members, associated persons, and other persons subject to the Exchanges' jurisdiction as though such rules were fully set forth within each of the Exchanges' rulebooks.^[6]

The Exchanges have requested, pursuant to Rule 0-12 under the Exchange Act,^[7] that the Commission grant the Exchanges an exemption from the rule filing requirements of Section 19(b) of the Exchange Act for changes to each of the Exchanges' rules that are effected solely by virtue of a change to the Nasdaq Rule 1000 Series that are incorporated by reference. Specifically, the Exchanges request that they be permitted to incorporate by reference changes made to the Nasdaq Rule 1000 Series that are cross-referenced in each of the Exchanges' rules without the need for each of the Exchanges to file separately the same proposed rule change pursuant to Section 19(b) of the Exchange Act.^[8]

The Exchanges represent that the Nasdaq Rule 1000 Series are not trading rules.^[9] Moreover, the Exchanges state that in each instance, they propose to incorporate by reference a category of rules (rather than individual rules within a category).^[10] The Exchanges also represent that, as a condition of this exemption, the Exchanges will provide written notice to their respective applicants and members whenever Nasdaq proposes a change to Nasdaq Rule 1000 Series.^[11]

According to the Exchanges, this exemption is necessary and appropriate because it will result in the Exchanges' membership rules and processes being consistent with the relevant cross-referenced Nasdaq membership rules and processes at all times.^[12] The Exchanges states that harmonization of the membership rules and processes between the Exchanges and Nasdaq will ease compliance burdens for those seeking membership on the three exchanges and increase internal efficiencies associated with administering the membership rules and processes of each exchange.^[13]

The Commission has issued exemptions similar to the Exchanges' request.^[14] In granting similar exemptions, the Commission stated that it would consider future exemption requests, provided that:

• A self-regulatory organization (“SRO”) wishing to incorporate rules of another SRO by reference has submitted a written request for an order exempting it from the requirement in Section 19(b) of the Exchange Act to file proposed rule changes relating to the rules incorporated by reference, has identified the applicable originating SRO(s), together with the rules it wants to incorporate by reference, and otherwise has complied with the procedural requirements set forth in the Commission's release governing procedures for requesting exemptive orders pursuant to Rule 0-12 under the Exchange Act; ^[15]

• The incorporating SRO has requested incorporation of categories of rules (rather than individual rules within a category) that are not trading rules (e.g., the SRO has requested incorporation of rules such as margin, suitability, or arbitration); and
• The incorporating SRO has reasonable procedures in place to provide written notice to its members each time a change is proposed to the incorporated rules of another SRO.^[16]

The Commission believes that the Exchanges have satisfied each of these conditions. Further, the Commission also believes that granting the Exchanges an exemption from the rule filing requirements under Section 19(b) of the Exchange Act will promote efficient use of the Commission's and the Exchanges' resources by avoiding duplicative rule filings based on simultaneous changes to identical rule text sought by more than one SRO.^[17] The Commission therefore finds it appropriate in the public interest and consistent with the protection of investors to exempt the Exchanges from the rule filing requirements under Section 19(b) of the Exchange Act with respect to the above-described rules it incorporates by reference. This exemption is conditioned upon the Exchanges promptly providing written notice to their applicants and members whenever Nasdaq changes a rule that the Exchanges incorporate by reference.

Accordingly, it is ordered, pursuant to Section 36 of the Exchange Act,^[18] that the Exchanges are exempt from the rule filing requirements of Section 19(b) of the Exchange Act solely with respect to changes to the rules identified in the Exemptive Request, provided that the Exchanges promptly provide written notice to their applicants and members whenever Nasdaq proposes to change a rule that the Exchanges have incorporated by reference.