04-3022. Joint Industry Plan; Notice of Filing and Immediate Effectiveness of Amendment to the Options Intermarket Linkage Plan To Add Boston Stock Exchange, Inc., as a Participant

February 5, 2004.

Pursuant to Section 11A(a)(3) of the Securities Exchange Act of 1934 (“Act”) ^[1] and Rule 11Aa3-2 thereunder,^[2] notice is hereby given that on February 5, 2004, the Boston Stock Exchange, Inc. (“BSE”) submitted to the Securities and Exchange Commission (“Commission”) an amendment to the Options Intermarket Linkage Plan (“Linkage Plan”).^[3] The amendment proposes to add the BSE as a Participant ^[4] to the Linkage Plan. The Commission is publishing this notice to solicit comments from interested persons on the proposed Linkage Plan amendment.

I. Description and Purpose of the Amendment

The current Participants in the Linkage Plan are Amex, CBOE, ISE, Phlx, and PCX. The proposed amendment to the Linkage Plan would add the BSE as a Participant in the Linkage Plan. The BSE has submitted a signed copy of the Linkage Plan to the Commission in accordance with the procedures set forth in the Linkage Plan regarding new Participants. Section 4(c) of the Linkage Plan provides for the admission of new Participants. Specifically an Eligible Exchange ^[5] may become a Participant in the Linkage Plan by: (i) Executing a copy of the Linkage Plan, as then in effect; (ii) providing each current Participant with a copy of such executed Linkage Plan, (iii) effecting an amendment to the Linkage Plan, as specified in Section 5(c)(ii) of the Linkage Plan; and (iv) paying the applicable new Participant fee.^[6]

Section 5(c)(ii) of the Linkage Plan puts forth the process by which an Eligible Exchange may effect an amendment to the Linkage Plan. Specifically, an Eligible Exchange must: (a) execute a copy of the Linkage Plan with the only change being the addition of the new participant's name in Section 4(a) of the Linkage Plan, (b) submit the executed Linkage Plan to the Commission, (c) and pay the then current new participant fee.^[7] The Linkage Plan then provides that such an amendment will be effective at the later of either the amendment being approved by the Commission or otherwise becoming effective pursuant to Section 11A of the Act and the payment of the new Participant fee.

II. Effectiveness of the Proposed Linkage Plan Amendment

The foregoing proposed Linkage Plan amendment has become effective pursuant to Rule 11Aa3-2(c)(3)(iii) ^[8] because it involves solely technical or ministerial matters. At any time within sixty days of the filing of this amendment, the Commission may summarily abrogate the amendment and require that it be refiled pursuant to paragraphs (b)(1) and (c)(2) of Rule 11Aa3-2,^[9] if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors or the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanisms of, a national market system, or otherwise in furtherance of the purposes of the Act.

III. Solicitation of Comments

Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed amendment 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. Comments may also be submitted electronically at the following e-mail address: [e-mail]. All comment letters should refer to File No. 4-429. 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, comments should be sent in hard copy or by e-mail but not by both methods. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed amendment that are filed with the Commission, and all written communications relating to the proposed amendment 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 such filing will also be available for inspection and copying at the principal office of BSE. All submissions should refer to File No. 4-429 and should be submitted by March 15, 2004.

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

Margaret H. McFarland,

Deputy Secretary.

Footnotes

1.  15 U.S.C. 78k-1(a)(3).

2.  17 CFR 240.11Aa3-2.

3.  On July 28, 2000, the Commission approved the Linkage Plan, which was proposed by the American Stock Exchange LLC (“Amex”), the Chicago Board Options Exchange, Inc. (“CBOE”) and the International Securities Exchange LLC (“ISE”). See Securities Exchange Act Release No. 43086 (July 28, 2000), 65 FR 48023 (August 4, 2000). Subsequently, on September 20, 2000, the Philadelphia Stock Exchange, Inc. (“Phlx”) and the Pacific Exchange, Inc. (“PCX”) were added as participants in the Linkage Plan. See Securities Exchange Act Release Nos. 43311, 65 FR 58584 (September 29, 2000) and 43310, 65 FR 58583 (September 29, 2000) (temporary approval orders); see also Securities Exchange Act Release Nos. 43573 (November 16, 2000), 65 FR 70851 (November 28, 2000) and 43574 (November 16, 2000), 65 FR 70850 (November 28, 2000) (final approval orders).

4.  The term “Participant” is defined as an Eligible Exchange whose participation has become effective pursuant to Section 4(c) of the Linkage Plan.

5.  The Linkage Plan defines an “Eligible Exchange” as a national securities exchange registered with the Commission pursuant to Section 6(a) of the Act, 15 U.S.C. 78f(a), that is (a) a “Participant Exchange” in the Options Clearing Corporation (“OCC”) (as defined in OCC By-laws, Section VII) and (b) a party to the Options Price Reporting Authority (“OPRA”) Plan (as defined in the OPRA Plan, Section 1). The Commission has granted BSE an exemption from satisfying the requirements to be a Participant Exchange in OCC and a party to OPRA to be considered an Eligible Exchange. See Letter from Robert L.D. Colby, Deputy Director, Division of Market Regulation, Commission, to George W. Mann, Jr., Executive Vice President and General Counsel, BSE, dated February 4, 2004 (“Exemption Letter”).

6.  The Commission has granted BSE a temporary exemption from the new Participant fee requirement. See Exemption Letter.

7.  Id.

8.  17 CFR 240.11Aa3-2(c)(3)(iii).

9.  17 CFR 240.11Aa3-2(b)(1) and (c)(2).

10.  17 CFR 200.30-3(a)(29).