[Federal Register Volume 70, Number 73 (Monday, April 18, 2005)]
[Notices]
[Pages 20199-20200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7644]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-51519; File No. SR-PCX-2005-37]


Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change by the Pacific Exchange, Inc. 
Relating to Adjusting the Implementation Date of Previously Adopted 
PCXE Listing Fees for Exchange-Traded Funds and Closed-End Funds

April 11, 2005.
    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 March 29, 2005, 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 II below, which 
Items have been prepared by PCX. The Exchange filed this proposal 
pursuant to Section 19(b)(3)(A) of the Act,\3\ and Rule 19b-4(f)(3) 
thereunder,\4\ 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. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(3).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    PCX, through its wholly-owned subsidiary PCX Equities, Inc. 
(``PCXE''), is proposing to adjust the implementation date of 
previously adopted PCXE listing fees for Exchange-Traded Funds 
(``ETFs'') and Closed-End Funds (``CEFs'') to April 1, 2005.

II. Self-Regulatory Organization's Statement of the Purpose of and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, PCX 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. PCX has prepared summaries, set forth in sections A, B, 
and C below, of the most significant aspects of such statements.

[[Page 20200]]

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Commission previously approved a rule proposal by the Exchange 
to adopt new listings fees for ETFs and CEFs (collectively ``Funds'') 
listed by the PCXE for trading on the Archipelago Exchange, a facility 
of the PCXE.\5\ In this rule proposal, the Exchange proposed a non-
refundable application processing fee, a one-time original listing fee 
per Fund issuer or family of Funds, and an annual maintenance fee based 
on the aggregate total shares outstanding of the Funds listed by the 
same Fund issuer or family of Funds. The Exchange proposed to implement 
these fees specific to Funds effective June 21, 2004.
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    \5\ See Securities Exchange Act Release No. 50591 (October 26, 
2004), 69 FR 63427 (November 1, 2004) (SR-PCX-2004-63).
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    The Exchange now seeks to adjust the implementation date of the 
Funds' listing fees to April 1, 2005. In February 2005, due to an 
administrative oversight, the Exchange inadvertently invoiced currently 
listed Funds for their 2005 annual maintenance fee based on the prior 
fee schedule. Because the Exchange discovered the error after the Fund 
issuers had already received the incorrect invoice, the Exchange 
decided to revise the effective date of implementation rather than 
withdraw and resubmit corrected invoices. As a result, all listed Funds 
paid a lower annual maintenance fee than they would otherwise have paid 
under the new fee schedule. Under these circumstances, the Exchange 
believes that this adjustment is appropriate as all listed Fund issuers 
were treated similarly and none were negatively impacted.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with section 6(b) of the Act,\6\ in general, and furthers the 
objectives of section 6(b)(4) of the Act,\7\ in particular, in that it 
provides for the equitable allocation of reasonable dues, fees, and 
other charges among its OTP Holders, OTP Firms, ETP Holders, issuers, 
and other persons using its facilities.
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    \6\ 15 U.S.C. 78f(b).
    \7\ 15 U.S.C. 78f(b)(4).
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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) of the Act \8\ and subparagraph (f)(3) of Rule 19b-4 
thereunder,\9\ because it is concerned solely with the administration 
of 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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    \8\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \9\ 17 CFR 240.19b-4(f)(3).
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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 proposed rule 
change 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-2005-37 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-2005-37. 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. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). 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 Section, 450 Fifth Street, 
NW., Washington, DC 20549. Copies of such filing also will be available 
for inspection and copying at the principal office of the Exchange. 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-2005-37 and should be 
submitted on or before May 9, 2005.
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    \10\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\10\
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 05-7644 Filed 4-15-05; 8:45 am]
BILLING CODE 8010-01-P