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###### Securities and Exchange Commission

          - [Release No. 34-45167; File No. SR-PCX-2001-49]

                    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 December 3, 2001, the Pacific Exchange, Inc. (“PCX”) filed with the Security and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II and III below, which the PCX has prepared. 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 change its marketing fee for certain options and to declare a marketing fee for recently listed options. A copy of the proposed new Schedule of Fees and Charges for Exchange Services is available at the PCX and at the Commission.

## 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 PCX included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it had received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The PCX has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of the statements.

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

#### 1. Purpose

                    The PCX recently adopted a payment-for-order-flow program under which it charges a marketing fee ranging from $0 to $1.00 per contract on a per-issue basis.[3]                                          The PCX  segregates the funds from this fee by trading post and makes the funds available to Lead Market Makers for their use in attracting orders in the options traded at the posts. The PCX  charges the marketing  fees in the amounts set forth in its Schedule of Fees and Charges for Exchange Services, hereinafter referred to as the “Schedule of Rates.”                

                    The PCX proposes to amend its Schedule of Rates in order to change the marketing fee that it charges for certain options and to adopt new marketing fees for newly listed options, beginning with the start of the December trade month and continuing until further notice. Only the amount of the fee is being changed.[4]                                          The PCX  believes that the                           ( print page 67347)                        proposed rule change has been designed to enable the PCX to compete with other markets in attracting options business, and that the proposed rule change is therefore reasonable and equitable.                

#### 2. Basis

                    The PCX believes that the proposed rule change is consistent with Section 6(b) of the Act,[5]                                          particularly Section 6(b)(4) of the Act,[6]                                          in that it provides for the equitable allocation of reasonable dues, fees, and other charges among its members.                

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

The PCX 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

The PCX neither solicited nor received any written comments on the proposed rule change.

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

                    Because the PCX has designated the foregoing as a fee change pursuant to Section 19(b)(3)(A) of the Act [7]                                          and Rule 19b-4(f)(2) thereunder,[8]                                          the proposal has become effective immediately 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. 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, 450 Fifth Street, NW., Washington, DC 20549. Copies of such filing will also be available for inspection and copying at the principal office of the PCX. All submissions should refer to File No. SR-PCX-2001-49 and should be submitted by January 18, 2002.

                        For the Commission, by the Division of Market Regulation, pursuant to delegated authority.[9] 

Margaret H. McFarland,

Deputy Secretary.

# Footnotes

1.                             15 U.S.C. 78s(b)(1).                    
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2.                             17 CFR 240.19b-4.                    
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3.                                                     *See*                         Securities Exchange Act Release No. 44830 (September 21, 2001), 66 FR 49728 (September 28, 2001) (SR-PCX-2001-37).                    
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4.                             The PCX proposes to change only the amounts of the fees that it charges for transactions in the options that are included in the proposed amended Schedule of Rates. Any fees currently being charged for transactions in options that are not listed in this amendment to the Schedule of Rates would not be affected by the proposed rule change. Telephone conversation between Mai Shiver, Senior Attorney, PCX, and Patrick Joyce, Special Counsel, Division of Market Regulation, Commission, on December 10, 2001.                    
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5.                             15 U.S.C. 78f(b).                    
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6.                             15 U.S.C. 78f(b)(4).                    
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7.                             15 U.S.C. 78s(b)(3)(A).                    
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8.                             17 CFR 240.19b-4(f).                    
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9.                                 17 CFR 200.30-3(a)(12).                        
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[FR Doc. 01-31871 Filed 12-27-01; 8:45 am]

BILLING CODE 8010-01-M