02-29872. Self-Regulatory Organizations; Order Approving Proposed Rule Change and Amendment No. 1 Thereto, and Notice of Filing and Order Granting Accelerated Approval of Amendment No. 2 Thereto, by the Philadelphia Stock Exchange, Inc. Relating to ...

November 15, 2002.

On December 18, 2001, the Philadelphia Stock Exchange, Inc. (“Phlx”) 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 ^[2] thereunder, a proposal to adopt Phlx Rule 1090, Clerks, to define and set forth permitted and prohibited activities of Clerks on the Exchange's Options Floor. On June 27, 2002, the Phlx submitted Amendment No. 1 to the proposed rule change.^[3] On October 25, 2002, the Phlx submitted Amendment No. 2 to the proposed rule change.^[4] On September 25, 2002, notice of the proposed rule change and Amendment No. 1 was published thereto in the Federal Register.^[5] The Commission received no comments on the proposal. This order approves the proposed rule change and Amendment No. 1, accelerates approval of Amendment No. 2, and solicits comment from interested persons on Amendment No. 2.

The Commission finds that the proposed rule change, as amended, is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange.^[6] In particular, the Commission finds that the proposal is consistent with Section 6(b)(5) of the Act ^[7] which requires, among other things, that the rules of an exchange be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and, in general, to protect investors and the public interest. The Commission believes that the proposed rule change should provide guidance as to the roles and responsibilities of Clerks on the Exchange's Options Floor and should clarify the types of activities in which Clerks may and may not engage. As a result, the Commission believes that the proposed rule change should assist the Exchange in its surveillance for potential violation of Exchange rules.

The Commission finds good cause for approving Amendment No. 2 prior to the 30th day after publication of notice of filing. The Commission notes that Amendment No. 2 makes only a clarification to the proposed rule text.^[8] Accordingly, the Commission believes that there is good cause consistent with Section 19(b)(2) of the Act ^[9] to approve Amendment No. 2 to the proposed rule change on an accelerated basis.

Solicitation of Comments

Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment No. 2 is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. 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. Copies of the filing will also be available for inspection and copying at the principal offices of the Phlx. All submissions should refer to File No. SR-Phlx-2001-104 and should be submitted by December 16, 2002.

It is therefore ordered, pursuant to Section 19(b)(2) of the Act,^[10] that the proposed rule change, as amended, (SR-Phlx-2001-104) is approved.

For the Commission, by the Division of Market Regulation, pursuant to delegated authority.^[11]

Jill M. Peterson,

Assistant Secretary.

Footnotes

1.  15 U.S.C. 78s(b)(1).

2.  17 CFR 240.19b-4.

3.  See letter from Richard S. Rudolph, Director and Counsel, Phlx, to Nancy J. Sanow, Assistant Director, Division of Market Regulation (“Division”), Commission, dated June 26, 2002 (“Amendment No. 1”).

4.  See letter from Richard S. Rudolph, Director and Counsel, Phlx, to Frank Genco, Division, Commission, dated October 25, 2002 (“Amendment No. 2”). In Amendment No. 2, Phlx replaces the word “person” with the word “Clerk” in proposed Commentaries .01 and .02 to proposed Phlx Rule 1090.

5.  See Securities Exchange Act Release No. 46505 (September 17, 2002), 67 FR 60273.

6.  In approving the proposed rule change, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f).

7.  15 U.S.C. 78f(b)(5).

8.  See supra note 4.

9.  15 U.S.C. 78f(b)(5) and 78s(b)(2).

10.  15 U.S.C. 78s(b)(2).

11.  17 CFR 200.30-3(a)(12).