02-2791. Self-Regulatory Organizations; American Stock Exchange LLC; Order Approving a Proposed Rule Change Relating to a Retroactive Increase in Floor, Membership and Options Trading Fees

January 29, 2002.

I. Introduction and Description of the Proposal

On December 6, 2001, the American Stock Exchange LLC (“Amex” or “Exchange”) 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 apply retroactively fee increases made under SR-Amex-2001-101,^[3] which was filed for immediate effectiveness pursuant to section 19(b)(3)(A)(ii) of the Act.^[4] Specifically, the Exchange proposed to increase floor, membership and option trading fees and to impose the increased license fees and to eliminate of the fee cap for options as of October 1, 2001. Amendment No. 1 was filed with the Commission on December 17, 2001.^[5]

The proposed rule change was published for comment, as amended, in the Federal Register on December 27, 2001.^[6] The Commission received no comments on the proposal. This order approves the proposed rule change, as amended.

II. Discussion

After careful review, the Commission finds that the proposed rule change, as amended, is consistent with the requirements of section 6 of the Act ^[7] and the rules and regulations thereunder applicable to a national securities exchange.^[8] The Commission finds specifically that the proposed rule change is consistent with section 6(b)(4) of the Act ^[9] , which requires, among other things, that the rules of a national securities exchange be designed to provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities. Specifically, the increase reflects additional costs that Amex has represented it has incurred since August 2001 for services provided to issuers. The Amex stated that it has committed additional resources to provide enhancements to the Floor, and major improvements in technology, facilities and services, which included a major expansion of the Amex Trading Floor in 2001. The Exchange represented that the increase in options transactions charges is necessitated by the large and increasing costs incurred by the Exchange in implementing options trading technology. The Exchange further represented that it has subsidized such expenses before August 1, 2001.

III. Conclusion

It is therefore ordered, pursuant to section 19(b)(2) of the Act ^[10] , that the proposed rule change (File No. SR-Amex-2001-102), as amended, is approved.

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

Margaret H. McFarland,

Deputy Secretary.

Footnotes

1.  15 U.S.C. 78s(b)(1).

2.  17 CFR 240.19b-4.

3.  See Securities Exchange Act Release No. 45163 (December 18, 2001), 66 FR 66958 (December 27, 2001) for a description of these increased fees. (SR-Amex-2001-101).

4.  15 U.S.C. 78s(b)(3)(a)(ii).

5.  See letter from Claire P. McGrath, Vice President and Deputy General Counsel, Amex, to Nancy Sanow, Assistant Director, Division of Market Regulation, Commission, dated December 14, 2001 (“Amendment No. 1”). In Amendment No. 1, the Amex provided greater detail as to the basis for the proposed rule change.

6.  See Securities Exchange Act Release No. 45165 (December 27, 2001), 66 FR 66957.

7.  15 U.S.C. 78f.

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

9.  15 U.S.C. 78f(b)(4).

10.  15 U.S.C. 78s(b)(2).

11.  17 CFR 200.30-3(a)(12).