04-2334. Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of Proposed Rule Change by the Pacific Exchange, Inc. Relating to Exchange Fees and Charges

January 28, 2004.

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 January 2, 2004, the Pacific Exchange, Inc. (“PCX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III, below, which the PCX has prepared. The PCX has designated this proposal as one establishing or changing a due, fee or other charge imposed by the self-regulatory organization under Section 19(b)(3)(A)(ii) of the Act ^[3] and Rule 19b-4(f)(2) thereunder,^[4] which renders the rule effective upon Commission receipt of this filing. 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 PCX proposes to amend the Trade-Related Charges portion of its Schedule of Fees and Charges (“Schedule”) in order to delete the fee relating to its Volume Discount Program.

The text of the proposed rule change is below. Proposed deletions are in [brackets].

* * * * *

Schedule of Fees and Charges for Exchange Services

PCX Options: Trade-Related Charges

Transactions

Customer	$0.00 per contract side
Firm	$0.10 per contract side for customer facilitation
Broker/Dealer	$0.21 per contract side

Market share tiers	Marg rate	Market share tiers	Marg rate
0.00% to 11.00%	$0.21	0% to 15%	$0.21
11.00% to 20.00%	0.11	15% to 25%	0.15
20% to 100.00%		25% to 100%	0.05

Market Maker Marginal Transaction Rates on Top 120 Issues	Market Maker Marginal Transaction Rates on Non-Top 120 Issues. Singly listed issues will be assessed a flat $0.21 Market Maker transaction charge.
[VOLUME DISCOUNT PROGRAM
PCX Quarterly Average Daily Contract Volume	Per Contract Reduction in Market Maker Transaction Charge For Following Quarter
449,000 or lower	No reduction
450,000 to 474,999	$0.01
475,000 to 499,999	$0.02
500,000 to 524,999	$0.03
525,000 or higher	$0.04]

* * * * *

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 Exchange 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 Exchange 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

The Exchange is proposing to amend the Trade-Related Charges portion of its Schedule in order to delete the fee relating to its Volume Discount Program. On December 16, 2003, the Exchange submitted a filing with the Commission to implement the new Incentive Pricing Program for Market Maker transaction charges.^[5] As part of its ongoing effort to secure existing volumes and attract higher levels of liquidity, the PCX proposed a three-tiered rate schedule that would lower transaction charges for Market Makers (including Lead Market Makers) as the Exchange attains higher levels of market share on individual issues. The Incentive Pricing Program became effective upon filing. As a result of the application of the new Incentive Pricing Program, the Exchange no longer has need for the Volume Discount Program and proposes to eliminate it from the Schedule.

2. Statutory Basis

The Exchange believes that this proposal to amend its schedule of dues, fees and charges would be an equitable allocation of reasonable fees among PCX members, and that the proposal is consistent with Section 6(b) of the Act ^[6] and furthers the objectives of Section 6(b)(4) of the Act.^[7]

B. Self-Regulatory Organization's Statement on Burden on Competition

PCX does not believe that the proposed rule change will impose any inappropriate burden on competition.

C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others

PCX neither solicited nor received written comments on this proposal.

III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action

The foregoing proposed rule change has been designated as a fee change pursuant to Section 19(b)(3)(A)(ii) of the Act ^[8] and Rule 19b-4(f)(2)^[9] thereunder. Accordingly, the proposal has taken effect upon filing with the Commission. At any time within 60 days after the filing of the proposed rule change, the Commission may summarily abrogate the 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. 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. SR-PCX-2003-72. 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 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 such filing will also be available for inspection and copying at the principal office of PCX. All submissions should refer to File No. SR-PCX-2003-72 and should be submitted by February 26, 2004.

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

Jill M. Peterson,

Assistant Secretary.

Footnotes

1.  15 U.S.C. 78s(b)(1).

2.  17 CFR 240.19b-4.

3.  15 U.S.C. 78s(b)(3)(A)(ii).

4.  17 CFR 240.19b-4(f)(2).

5.  See Securities Exchange Act Release No. 48976 (December 23, 2003), 68 F.R. 75701 (December 31, 2003) (SR-PCX-2003-68).

6.  15 U.S.C. 78f(b).

7.  15 U.S.C. 78f(b)(4).

8.  15 U.S.C. 78s(b)(3)(A)(ii).

9.  17 CFR 240.19b-4(f)(2).

10.  17 CFR 200.30-3(a)(12).