Notices. SECURITIES AND EXCHANGE COMMISSION

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BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50307; File No. SR-Amex-2004-75] Self-Regulatory Organizations; Notice of Filing of Proposed Rule Change by the American Stock Exchange LLC Relating to Revisions to Amex Rule 154 September 2, 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 August 30, 2004, the American Stock Exchange LLC (“Amex” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Exchange.

The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend Amex Rule 154. The text of the proposed rule change is set forth below in its entirety. Proposed new language is in *italics* . Orders Left With Specialist Rule 154 ( *a* ) No member or member organization shall place with a specialist, acting as broker, any order to effect on the Exchange any transaction except at the market or at a limited price. *(b) A specialist shall not charge a commission for handling an order (or portion thereof) that is not executed, an order that is executed on an opening or reopening, or an order (or portion thereof) that is executed against the specialist as principal (see Amex Rule 152(c)).

Without limiting the foregoing, a specialist also shall not charge a commission for the execution of an off floor order delivered to the specialist through the Exchange's electronic order routing systems except in the following cases:* *(i) A limit order executed more than two minutes from the time of receipt on the book. In the case of a limit order partially executed in two minutes or less and partially executed in more than two minutes, a specialist shall not charge a commission for handling the portion of the order executed in two minutes or less.* *(ii) An on close (market or limit) order.* *(iii) A tick sensitive (market or limit) order that is not executed upon receipt in the book by the Exchange's automatic execution facilities.* *(iv) A non-regular way settlement (market or limit) order.* *(v) A stop or stop limit order.* *(vi) A market or marketable limit order stopped at one price and executed at a better price.

In the case of an order stopped at one price and partially executed at a better price, a specialist shall not charge a commission for handling the portion of the order executed at the stop price.* *(vii) A fill-or-kill, immediate-or-cancel or all-or-none order that is not executed upon receipt in the book by the Exchange's automatic execution facilities.* *(viii) An order for the account of a competing market maker.* * For purposes of this paragraph (b), in all instances where an order received by the specialist is canceled and replaced with another order, the replacement shall be deemed to be a new order. * Commentary * * *. .01 through .15 No change 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 the Statutory Basis for, the Proposed Rule Change 1. Purpose According to the Exchange, specialists traditionally charge a commission only for orders that they execute and do not bill for orders that they hold, but do not execute. For example, specialists do not charge a commission for “day” orders that expire unfilled or orders that are cancelled prior to execution. In addition, the Exchange has a policy (available on its AmexTrader Web site), 3 which describes the circumstances under which specialists may charge members and member organizations a commission for executing orders.

In general, “routine” orders are not subject to specialist commissions while orders that require special handling or for which the specialist provides a service may be subject to a commission. Thus, specialists on the Amex may (but are not required to) bill for limit orders that remain on the book for more than two minutes, market on close or limit on close orders, tick sensitive orders ( *e.g.* , an order to sell short in a security subject to the Commission's “tick-test”), orders for non-regular way settlement, stop or stop limit orders, orders stopped at one price and executed at a better price, and fill-or-kill, immediate-or-cancel and all-or-none orders. 4 By rule, specialists may not charge a commission where they take the other side of the trade as principal. 5 3 *See http://www.amex.com/amextrader/tdrInfo/fees/tdrInfo Fees pg6.html.* 4 According to the Exchange, the NYSE's rules are similar to the Exchange's policy in this area.

NYSE Rule 123B(b)(1) and Supplementary Material .10 generally prohibit NYSE specialists from charging a commission on orders sent to them electronically unless the order remains on the book for more than five minutes. 5 Amex Rule 152(c). One Amex specialist currently charges firms a commission for orders that are cancelled prior to execution. This specialist recently distributed a memorandum dated August 23, 2004, to “all Broker-Dealers and Firms” to advise that, commencing September 1, 2004, it would begin charging a commission for option and ETF orders that expire without an execution.

Thus, for example, this specialist would charge a commission for orders for options that expire and day orders that expire unexecuted. The memorandum further states that the specialist would charge a commission for option and ETF orders, “without regard to whether they are market or limit orders, and without regard to whether they are immediately executed upon receipt or are booked.” According to the Exchange, among other consequences, this change in commission billing practice would result in the specialist charging commissions for orders that are executed automatically by the Exchange's systems.

The Exchange proposes to adopt a rule that would prohibit specialists from charging a commission for orders, or portions of orders, that are not executed. This would include, but is not limited to, a prohibition on specialist commissions for order cancellations and orders that expire due to the passage of time. The Exchange also proposes to codify its policies regarding situations where specialists may charge a commission for trades that are executed in whole or part. Proposed Amex Rule 154(b) would prohibit specialists from charging a commission on off floor orders that are electronically delivered to the specialist except in cases of orders that require special handling by the specialist or the specialist provides a service.

Thus, under the proposed rule, specialists would be allowed to bill a commission for a limit order that remains on the book for more than two minutes, a market or limit on close order, a tick sensitive order that is not executed upon receipt in the book by the Exchange's automatic execution facilities, an order for non-regular way settlement, a stop or stop limit order, an order stopped at one price and executed at a better price, a fill-or-kill, immediate-or-cancel or all-or-none order that is not executed upon receipt in the book by the Exchange's automatic execution facilities, and an order for the account of a competing market maker.

Other off floor electronic delivered orders, orders where the specialist is the “contra” party on the execution, and orders executed on an opening or reopening would not be “billable.” The proposed rule would prohibit specialists from billing for electronically delivered orders that are executed automatically by the Exchange's order processing facilities upon receipt in the book. Amex Rule 152(c) already prohibits specialists from charging a commission where they act as principal on a trade, so the Exchange's rules would be violated if a specialist were to bill for an automatically executed trade where the specialist is the contra-side.

If, on the other hand, the contra side were some other person, *e.g.* , a registered option trader or a limit order on the book, the Exchange believes that it is hard to see what service the specialist has performed to earn a commission when the order is executed against this other interest when it first arrives in the book. The proposed rule only would allow the specialist to charge a commission for an order that is automatically executed where

(i)a limit order has been on the book for more than two minutes, and

(ii)the order is automatically executed against an incoming order or some trading interest other than that of the specialist. The Exchange believes that it may be appropriate for the specialist to charge a commission in these circumstances because the specialist has assumed responsibility for the proper execution of the order. Specialist commissions increase the cost of doing business on the Exchange. The Exchange believes that these increased costs weaken the Exchange's competitive position relative to other markets and harm investors as other markets do not need to compete as aggressively with the Exchange to cut their prices to investors. The Exchange, consequently, believes that the proposed rule would benefit investors if implemented. 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)(5) of the Act 7 in particular in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest; and is not designed to permit unfair discrimination between customers, issuers, brokers and dealers. The Exchange also believes that the proposed rule change is consistent with Section 11(A)(a)(1)(C)(i) of the Act 8 in that it is designed to promote the economically efficient execution of securities transactions by reducing the cost of such transactions to investors. 6 15 U.S.C. 78f(b). 7 15 U.S.C. 78f(b)(5). 8 15 U.S.C. 78k-1(a)(1)(C)(i). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange believes 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. The Exchange, in fact, believes that the proposed rule change may enhance competition by possibly reducing the cost of doing business on the Exchange. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others No written comments were solicited or received with respect to the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the **Federal Register** or within such longer period

(i)as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or

(ii)as to which the Exchange consents, the Commission will: A. By order approve such proposed rule change, or B. Institute proceedings to determine whether the proposed rule change should be disapproved. 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 *rule-comments@sec.gov* . Please include File Number SR-Amex-2004-75 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-Amex-2004-75. 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 Amex. 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-Amex-2004-75 and should be submitted on or before September 30, 2004. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 9 9 17 CFR 200.30-3(a)(12). Margaret H. McFarland, Deputy Secretary. [FR Doc. E4-2108 Filed 9-8-04; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50308; File No. SR-Amex-2004-59] Self-Regulatory Organizations; American Stock Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to a Reduction in Options Transaction Fees September 2, 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 July 30, 2004, the American Stock Exchange, Inc. (“Amex” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Amex. The Amex submitted the proposed rule change under Section 19(b)(3)(A) of the Act 3 and Rule 19b-4(f)(2) 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. 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)(2). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to reduce aggregate options transaction fees for specialists and registered options traders from $0.30 per contract side to $0.25 per contract side. The text of the proposed rule change is available at the Amex 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 Amex 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. Amex 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 Amex imposes transaction charges for transactions in equity options executed on the Exchange by Exchange specialists and Exchange registered options traders (“ROTs”). The current charges for Exchange specialists and ROTs in equity options are $0.30 per contract side, consisting of an options transaction fee of $0.20, an options comparison fee of $0.05 and an options floor brokerage fee of $0.05. The Exchange proposes to reduce the aggregate equity option transaction fee for Exchange specialists and ROTs from the current level of $0.30 per contract side to $0.25 per contract side effective August 1, 2004. Non-member market makers, *i.e.* , market makers registered in the same option class on another option exchange, will continue to be charged the current transaction fee of $0.30 per contract side. Under the proposed revisions to the Options Fee Schedule, transaction fees charged to non-member market makers for executing options transactions on the Exchange will be separately identified. 5 The new aggregate equity option transaction fee for Exchange specialists and ROTs will consist of an options transaction fee of $0.15 per contract side, an options comparison fee of $0.05 per contract side, and options floor brokerage fee of $0.05 per contract side. 5 Currently, non-member market makers are subject to transaction fees applicable to Exchange specialists and ROTs as set forth in the Options Fee Schedule. Therefore, for clarity, the Exchange proposes to separately set forth transaction fees applicable to non-member market makers in the revised Options Fee Schedule. In conjunction with the proposed reduction in the aggregate equity option transaction fee for Exchange specialists and ROTs, the fee reductions in the Options Fee Schedule for cabinet trades (“Cabinet Trades”) and reversals and conversions, dividend spreads, box spreads, and butterfly spreads (“Spread Trades”) are terminated for Exchange specialists, ROTs, and member broker-dealers. 6 Effective August 1, 2004, the fee reductions applicable to Exchange specialists, ROTs and member broker-dealers for QQQ options in connection with Cabinet Trades and Spread Trades do not apply. 6 *See* Securities Exchange Act Release No. 49763 (May 24, 2004), 69 FR 30967 (June 1, 2004). The Exchange believes that the reduction in equity options transaction fees will benefit the Exchange by providing greater incentive to Exchange specialists and ROTs to competitively quote their markets in comparison to the markets made by other options exchanges. In addition, the Exchange also believes that the reduction in equity option transaction fees will help maintain the existing floor operations of member firms at the Amex. 2. Statutory Basis The Exchange believes that its proposed rule change is consistent with Section 6(b) of the Act, 7 in general, and furthers the objectives of Section 6(b)(4) of the Act, 8 in particular, regarding the equitable allocation of reasonable dues, fees, and other charges among exchange members and other persons using exchange facilities. 7 15 U.S.C. 78f(b). 8 15 U.S.C. 78f(b)(4). 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 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 Exchange has neither solicited nor received comments on the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The proposed rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act 9 and subparagraph (f)(2) of Rule 19b-4 thereunder, 10 because it establishes or changes a due, fee, or other charge imposed by Amex. At any time within 60 days of the filing of the 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. 9 15 U.S.C. 78s(b)(3)(a)(ii). 10 17 CFR 240.19b-4(f)(2). IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, 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 *rule-comments@sec.gov* . Please include File Number SR-Amex-2004-59 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-Amex-2004-59. 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 Room. Copies of the filing also will be available for inspection and copying at the principal offices of the Amex. 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-Amex-2004-59 and should be submitted on or before September 30, 2004. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 11 11 17 CFR 200.30-3(a)(12). Margaret H. McFarland, Deputy Secretary. [FR Doc. E4-2132 Filed 9-8-04; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50302; File No. SR-BSE-2004-38] Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of Proposed Rule Change by the Boston Stock Exchange, Inc. Relating to Fees for Market Makers on the Boston Options Exchange Facility September 1, 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 August 25, 2004, the Boston Stock Exchange (“BSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in items I, II, and III below, which items have been prepared by the Exchange. The proposed rule change has been filed by the Exchange as establishing or changing a due, fee, or other charge under Section 19(b)(3)(A)(ii) of the Act 3 and Rule 19b-4(f)(2) 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 from interested persons. 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). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend its Fee Schedule for the Boston Options Exchange 5 to allow the Exchange to charge a minimum activity charge (“MAC”) to Market Maker firms for options classes that have been trading for less than six months. Currently, the monthly MAC is based on the average daily trading volume for the preceding six month period. The proposed rule change would provide that for classes that have been trading for less than six months, the class would be placed in a MAC category based on the average daily trading volume for the preceding calendar months in which the class was trading for the entire calendar month. The text of the proposed rule change appears below. New text is in *italics* . 5 *http://www.bostonoptions.com/pdf/FeeFiling SECofficial.pdf* (Accessed Sept. 1, 2004.) BOSTON OPTIONS EXCHANGE FACILITY FEE SCHEDULE Sec. 3 Market Maker Trading Fees a. No change. b. Minimum Activity Charge (“MAC”) 1. MAC “Levels” *a. For Classes that have been trading for at least six calendar months* The table below provides the MAC for each of the six “categories” of options classes listed by BOX. The category for each class is determined by its total trading volume across all U.S. options exchanges as determined by OCC data. The classifications will be adjusted at least twice annually (in January and July, based on the average daily volume for the preceding six month period). Class category OCC average daily volume (number of contracts) MAC per market maker per appointment per month A >100,000 $15,000 B 50,000 to 99,999 3,000 C 25,000 to 49,999 2,000 D 10,000 to 24,999 750 E 5,000 to 9,999 250 F Less than 5,000 100 *b. For Classes that have been trading for less than six calendar months* *A MAC will not be applied until a class has been trading for a full calendar month. After a class has been trading for a full calendar month, the MAC category for such class will be determined, applying the criteria set forth in the table above, based on the average daily volume for such full calendar month across all U.S. options exchanges as determined by OCC data. The classification will be adjusted at the beginning of each new calendar month thereafter based on the average daily trading volume for the previous calendar months in which the options class was traded for the entire month, until the class has been trading for six full calendar months. Thereafter, the classification will be adjusted at least twice annually (in January and July, based on the average daily volume for the preceding six month period) as set forth in subsection 1.a. above. Until an options class is placed in a MAC category, only per contract trade execution fees will apply to trades in that class.* 2. MAC “Adjustments” No change. 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 purpose of the proposed rule change is to allow the Exchange to charge a MAC to Market Maker firms for options classes that have been trading for less than six months. Currently, the monthly MAC is based on the average daily trading volume for the preceding six month period. The proposed rule change would provide that for classes that have been trading for less than six months, the class would be placed in a MAC category based on the average daily trading volume (as determined by data from the Options Clearing Corporation) for the preceding calendar months in which the class was trading for the entire calendar month. The classification would be adjusted at the beginning of each new calendar month thereafter based on the average daily trading volume for the previous calendar months in which the class was trading for the entire calendar month, until the class has been trading for six full calendar months. Thereafter, the classification would be adjusted at least twice annually (in January and July, based on the average daily volume for the preceding six month period), as the rule currently provides. Until an options class was placed in a MAC category, only per contract trade execution fees would apply to trades in that class. 2. Statutory Basis The Exchange believes that the proposal is consistent with the requirements of 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 Exchange members. 6 15 U.S.C. 78f(b). 7 15 U.S.C. 78f(b)(4). 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 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 Exchange has neither solicited nor received comments on the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The proposed rule change has become effective upon filing pursuant to Section 19(b)(3)(A)(ii) of the Act 8 and subparagraph (f)(2) of Rule 19b-4 thereunder 9 because it 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. 8 15 U.S.C. 78s(b)(3)(A)(ii). 9 17 CFR 240.19b-4(f)(2). 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 *rule-comments@sec.gov* . Please include File Number SR-BSE-2004-38 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-BSE-2004-38. 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 Room. 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-BSE-2004-38 and should be submitted on or before September 30, 2004. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 10 10 17 CFR 200.30-3(a)(12). Margaret H. McFarland, Deputy Secretary. [FR Doc. E4-2107 Filed 9-8-04; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50304; File No. SR-NASD-2004-114] Self-Regulatory Organizations; Notice of Filing of a Proposed Rule Change and Amendment No. 1 Thereto by the National Association of Securities Dealers, Inc. Relating to Fees for Depth of Book Data in Exchange-Listed Securities in the Nasdaq Market Center September 1, 2004. Pursuant to Section 19(b)(1) of the Securities Exchange Act 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on July 26, 2004, the National Association of Securities Dealers, Inc. (“NASD”), through its subsidiary, The Nasdaq Stock Market, Inc. (“Nasdaq”), filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by Nasdaq. On August 24, 2004, Nasdaq filed Amendment No. 1 to the proposed rule change. 3 The Commission is publishing this notice to solicit comments on the proposed rule change, as amended, from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 Letter from Mary M. Dunbar, Vice President and Deputy General Counsel, Nasdaq, to Katherine A. England, Assistant Director, Division of Market Regulation, Commission, dated August 23, 2004 (“Amendment No. 1”). Amendment No. 1 replaces the original proposed rule change in its entirety. I. Self-Regulatory Organization's Statement of the Terms of the Substance of the Proposed Rule Change Nasdaq proposes to establish a monthly per-controlled device fee for depth of book information for exchange-listed securities in the Nasdaq Market Center. Nasdaq intends to implement the fee on October 1, 2004. The text of the proposed rule change is below. Proposed new language is in italics; proposed deletions are in brackets. 4707. Entry and Display of Quotes/Orders

(a)through

(e)No Change.

(f)[IM Prime—“IM Prime”] *Open View—“Open View”* is a separate data feed that Nasdaq will make available for a fee that is approved by the Securities and Exchange Commission. This separate data feed will display with attribution to ITS/CAES Market Makers' MPIDs all Attributable Quotes/Orders on both the bid and offer side of the market for the price levels that are disseminated in the Nasdaq Order Display Facility for ITS Securities. 7010. Charges for Services and Equipment (a)-(p) No change.

(q)Nasdaq Data Entitlement Packages

(1)through

(7)No Change. *(8) Open View* *The Open View entitlement package consists of all individual Nasdaq Market Center participant orders and quotes in exchange-listed securities in the system. There shall be a charge of $6 per month per controlled device of Open View.* (r)-(u) No change. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with Commission, Nasdaq 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. Nasdaq 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 With the introduction of the Nasdaq Market Center as a platform to trade exchange-listed securities, Nasdaq will have the ability to collect and disseminate multiple levels of firm quotes/orders in those securities to market participants. This data includes all exchange-listed securities quoted through the Nasdaq Market Center. Nasdaq's proposal establishes a $6 monthly per-controlled device 4 fee for such real-time “depth of book” information, which is known as “Open View.” 5 In addition, Nasdaq proposes to amend NASD Rule 4707(f) to change the name of the “IM Prime” data feed to “Open View.” 4 Controlled device is defined in NASD Rule 7010(q)(6)(A). 5 “Open View” is part of the ViewSuite package of data entitlements provided under NASD Rule 7010(q). Nasdaq states that it chose the initial $6 monthly fee amount based on anticipated message traffic through the new data feed in relation to the message traffic levels and prices for similar data services already in operation. 6 As noted above, Nasdaq intends to implement the fee on October 1, 2004. The $6 fee will apply to vendors and subscribers that access the data through either a market data vendor or any internal data dissemination system operated by a broker-dealer. 6 *See e.g.,* Securities Exchange Act Release No. 46534 (September 23, 2002), 67 FR 61368 (September 30, 2002) (approving SR-NASD 2002-86 and establishing a $6 fee for similar listed quotation data in the event Nasdaq becomes a national securities exchange). 2. Statutory Basis Nasdaq believes that the proposed rule change is consistent with the provisions of Section 15A of the Act 7 in general, and Section 15A(b)(5) of the Act 8 in particular, in that the proposal provides for the equitable allocation of reasonable dues, fees, and other charges among members and issuers and other persons using any facility or system which the association operates or controls. As previously noted, Nasdaq chose the initial $6 monthly fee amount based on anticipated message traffic through the new data feed in relation to the message traffic amounts and prices for similar data services available to market participants that are already in operation. 7 15 U.S.C. 78 *o* -3. 8 15 U.S.C. 78 *o* -3(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition Nasdaq does not believe that the proposed rule change will result in 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 were neither solicited nor received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the **Federal Register** or within such longer period

(i)as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or

(ii)as to which the self-regulatory organization consents, the Commission will: A. By order approve such proposed rule change, or B. Institute proceedings to determine whether the proposed rule change should be disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Comments may be submitted by any of the following methods: Electronic comments • Use the Commission's Internet comments form ( *http://www.sec.gov/rules/sro.shtml);* or • Send an e-mail to *rule-comments@sec.gov.* Please include File Number SR-NASD-2004-114 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-NASD-2004-114. 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 Room. Copies of such filing also will be available for inspection and copying at the principal office of the NASD. 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-NASD-2004-114 and should be submitted on or before September 30, 2004. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 9 6 17 CFR 200.30-3(a)(12). Margaret H. McFarland, Deputy Secretary. [FR Doc. 04-20375 Filed 9-8-04; 8:45 am]

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