[Federal Register Volume 69, Number 105 (Tuesday, June 1, 2004)]
[Notices]
[Pages 30971-30972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12256]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-49757; File No. SR-PCX-2004-28]


Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change and by the Pacific Exchange, Inc. 
To Amend Rules Relating to FOCUS Report Filings

May 21, 2004.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 \2\ thereunder, notice is hereby given 
that on April 14, 2004, the Pacific Exchange, Inc. (``PCX'' or 
``Exchange''), through its wholly owned subsidiary PCX Equities, Inc. 
(``PCXE''), filed with the Securities and Exchange Commission 
(``Commission'' or ``SEC'') the proposed rule change as described in 
items I, II, and III below, which items have been prepared by the 
Exchange. The PCX has designated this proposal as one establishing or 
changing a due, fee, or other charge imposed by the PCX under section 
19(b)(3)(A)(ii) of the Act,\3\ which renders the proposal effective 
upon filing with the Commission. The Commission is publishing this 
notice to solicit comments on the proposed rule change from interested 
persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 79s(b)(3)(A)(ii).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange is proposing to amend PCXE Rule 4.11(b)(1) relating to 
late filings of Financial and Operational Combined Uniform Single 
(``FOCUS'') Reports. The text of the proposed rule change is set forth 
below. Proposed new language is in italics and proposed deletions are 
in brackets.
    Rule 4.11(a).--No change.
    Rule 4.11(b)(1). Each ETP Holder shall file with the Corporation a 
Report of Financial Condition on SEC Form X-17A-5 as required by 
Securities and Exchange Commission Rules 17a-5 and 17a-10. Any ETP 
Holder who fails to file such Report of Financial Condition in a timely 
manner shall be subject to late filing charges as follows:

------------------------------------------------------------------------
                                Number
          Occurrence            of days          Amount of charge
------------------------------------------------------------------------
1st..........................      1-30  $100.00 per day (capped at
                                          $500) [200.00].
                                  31-60  $750.00 [400.00].
                                  61-90  $1000.00 [800.00].
2nd..........................      1-30  $100.00 per day (capped at
                                          $1000).
                                  31-60  $1500.00.
                                  61-90  $2000.00.
3rd..........................      1-30  $2000.00.
                                  31-60  $2500.00.
                                  61-90  $3000.00.
------------------------------------------------------------------------

    Occurrences will be calculated on a running two-year basis. 
Repeated or aggravated failure to file such Report of Financial 
Condition or failure to file such report [for more than ninety days 
will] may be referred to the Enforcement Department [Ethics and 
Business Conduct Committee] for appropriate disciplinary action.
    Rule 4.11(b)(2)--No change.

[[Page 30972]]

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 PCXE Rule 4.11(b)(1) relating to 
late filings of FOCUS Reports to implement a higher late charge 
schedule.
    Currently, PCXE Rule 4.11(b)(1) requires ETP (``Equity Trading 
Permits'') Holders to file with the Exchange a FOCUS Report as set 
forth in SEC Rules 17a-5 and 17a-10. ETP Holders who fail to file such 
a FOCUS Report in a timely manner are subject to late filing charges. 
If an ETP Holder is late 1-30 days, the late fee is $200; for 31-60 
days, the late fee is $400; and for 61-90 days, the late fee is $800.
    The Exchange proposes to amend PCXE Rule 4.11(b)(1) to reflect a 
higher late charge schedule. For a first occurrence, an ETP Holder who 
is 1-30 days late in filing a FOCUS Report will be charged $100 per day 
(capped at $500); for 31-60 days, the ETP Holder will be charged $750; 
and for 61-90 days, the ETP Holder will be charged $1000. For a second 
occurrence, an ETP Holder who is 1-30 days late will be charged $100 
per day (capped at $1000); for 31-60 days, the ETP Holder will be 
charged $1500; and for 61-90 days, the ETP Holder will be charged 
$2000. For a third occurrence, an ETP Holder who is 1-30 days late will 
be charged $2000; for 31-60 days, the ETP Holder will be charged $2500; 
and for 61-90 days, the ETP Holder will be charged $3000. Occurrences 
for late FOCUS Report filings will be calculated on a running two-year 
basis.
    The Exchange will retain its flexibility to refer repeated or 
aggravated failure to file such reports or failure to file such 
reports, regardless of the number of days late, to the Enforcement 
Department. The Exchange believes that implementing a higher late 
charge schedule is necessary to convey the importance of FOCUS Reports 
to ETP Holders and to encourage the ETP Holders to file FOCUS Reports 
in a timely manner.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with section 
6(b) of the Act \4\ in general, and furthers the objectives of section 
6(b)(4) of the Act \5\ in particular, in that it provides for the 
equitable allocation of reasonable dues, fees and other charges among 
its members.
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    \4\ 15 U.S.C. 78f(b).
    \5\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act.

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

    Written comments on the proposed rule change were neither solicited 
nor received.

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

    The foregoing rule change has become effective pursuant to section 
19(b)(3)(A)(ii) \6\ of the Act and subparagraph (f)(2) of Rule 19b-4 
\7\ thereunder because it establishes or changes a due, fee, or other 
charge imposed by the Exchange. At any time within 60 days of the 
filing of such proposed rule change, the Commission may summarily 
abrogate such 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.
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    \6\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \7\ 17 CFR 240.19b-4(f)(2).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the proposal is 
consistent with the Act. Comments may be submitted by any of the 
following methods:
    Electronic comments:
     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to [email protected]. Please include 
File Number SR-PCX-2004-28 on the subject line.
    Paper comments:
     Send paper comments in triplicate to Jonathan G. Katz, 
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., 
Washington, DC 20549-0609.
    All submissions should refer to File Number SR-PCX-2004-28. 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, please use only one method. 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 the PCX. All comments 
received will be posted without change; the Commission does not edit 
personal identifying information from submissions. You should submit 
only information that you wish to make available publicly. All 
submissions should refer to File Number SR-PCX-2004-28 and should be 
submitted on or before June 22, 2004.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\8\
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    \8\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 04-12256 Filed 5-28-04; 8:45 am]
BILLING CODE 8010-01-P