Notices. SECURITIES AND EXCHANGE COMMISSION

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BILLING CODE 7590-01-M SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50520; File No. SR-BSE-2004-49] Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of Proposed Rule Change by the Boston Stock Exchange, Inc. Relating to an Extension of the Specialist Performance Evaluation Program Pilot October 13, 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 October 6, 2004, the Boston Stock Exchange, Inc.

(“BSE” or “Exchange”) filed with the Securities and Exchange Commission (“SEC” or “Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Exchange. The Exchange filed the proposal pursuant to Section 19(b)(3)(A) of the Act 3 and Rule 19b-4(f)(6) 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. 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)(6).

I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The BSE proposes to extend its Specialist Performance Evaluation Program until December 31, 2004. Below is the text of the proposed rule change. Proposed new language is *italicized;* proposed deletions are in [brackets]. Chapter XV—Specialists Specialist Performance Evaluation Program SEC. 17 (a)—(e) No change

(f)This program will expire on [September 30] *December 31,* 2004, unless further action is taken by the Exchange. 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 BSE 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 seeks to extend its Specialist Performance Evaluation Program (“SPEP”) pilot, until December 31, 2004. The Exchange states that, pursuant to the SPEP pilot program, it regularly evaluates the performance of its specialists by using objective measures, such as turnaround time, price improvement, depth, and added depth. Generally, any specialist who receives a deficient score in one or more measures may be required to attend a meeting with the Performance Improvement Action Committee, or the Market Performance Committee. While the Exchange believes that the SPEP program has been a very successful and effective tool for measuring specialist performance, it also believes that modifications are necessary as a result of recent changes in the industry, particularly decimalization. The Exchange has filed a proposal with the Commission to amend its rules with respect to the SPEP program. 5 Accordingly, the Exchange is seeking to extend the pilot period of this program while its proposal to amend the SPEP program is pending with the Commission. 5 *See* Securities Exchange Act Release No. 50287 (August 27, 2004), 69 FR 53966 (September 3, 2004) (SR-BSE-2004-25). 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) 7 in particular, in that it is designed 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 is not designed to permit unfair discrimination between customers, brokers, or dealers, or to regulate by virtue of any authority matters not related to the administration of the Exchange. 6 15 U.S.C. 78f(b). 7 15 U.S.C. 78f(b)(5). 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. 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 foregoing proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act 8 and Rule 19b-4(f)(6) thereunder 9 because the proposal:

(i)Does not significantly affect the protection of investors or the public interest;

(ii)does not impose any significant burden on competition; and

(iii)does not become operative prior to 30 days after the date of filing or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest; provided that the Exchange has given the Commission notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission. 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). 9 17 CFR 240.19b-4(f)(6). The BSE has requested that the Commission waive the five-day pre-filing notice and the 30-day operative delay. 10 The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because it will allow the pilot program to continue with minimal interruption and will permit the Commission to continue to evaluate the proposed changes to the pilot program. 11 In addition, the Commission has determined to waive the five-day pre-filing notice. For these reasons, the Commission designates the proposal to be effective and operative upon filing with the Commission. 12 10 Exhibit 1 of SR-BSE-2004-49 contained certain discrepancies with Item 7 of SR-BSE-2004-49 with regard to the filing's date of effectiveness, which discrepancies have been conformed in this notice by Commission staff. Telephone conversation between John Boese, Vice President, Chief Regulatory Officer, BSE, and David Liu, Attorney, Division of Market Regulation, Commission, on October 8, 2004. 11 *See* note 5 *supra.* 12 For purposes only of accelerating the operative date of this proposal, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). 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-2004-49 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-2004-49. 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 BSE. 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-2004-49 and should be submitted on or before November 9, 2004. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 13 13 17 CFR 200.30-3(a)(12). Margaret H. McFarland, Deputy Secretary. [FR Doc. E4-2714 Filed 10-18-04; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50521; File No. SR-CHX-2004-32] Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change by the Chicago Stock Exchange, Inc. Relating to Membership Dues and Fees Applicable to Orders Sent for Execution Through the Exchange's CHXpress Functionality October 13, 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 September 28, 2004, the Chicago Stock Exchange, Inc. (“CHX” 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 CHX. The proposed rule change has been filed by the CHX as establishing or changing a due, fee, or other charge, pursuant to Section 19(b)(3)(A)(ii) of the Act, 3 and Rule 19b-4(f)(2) 4 thereunder, 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)(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 CHX proposes to amend its membership dues and fees schedule, to establish fees for orders sent for execution through its CHXpress tm functionality. Below is the text of the proposed rule change. Proposed new language is in *italics.* MEMBERSHIP DUES AND FEES A.-E. No change to text. F. Transaction and Order Processing Fees 4. Transaction Fees a.-k. No change to text. *l. CHXpress orders $.0005 per share, if sent by an order-sending firm. CHXpress orders sent to the Exchange by an order-sending firm are not subject to any other order processing fees, transaction fees, fee caps or fee reductions set forth above in Sections F(3) and F(4).* *CHXpress orders entered by a CHX market maker or by a CHX floor broker on behalf of a customer shall be exempt from any CHXpress transaction fee but shall remain subject to transaction fees that are applicable to market maker or floor broker executions.* 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 CHX 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 CHX 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 developing a new automated functionality for handling particular orders, called CHXpress. The CHXpress functionality, built into the Exchange's MAX ® system, is designed to provide additional opportunities for the Exchange's members and their customers to seek and receive liquidity through automated executions of orders at the Exchange. 5 5 *See* Securities Exchange Act Release Nos. 34-50481 (September 30, 2004); 69 FR 60197 (October 7, 2004) (approval of File No. SR-CHX-2004-12) and 34-49567 (April 15, 2004); 69 FR 21591 (April 21, 2004) (notice of File No. SR-CHX-2004-12). Through this submission, the Exchange proposes to establish a transaction fee that would apply to executions of CHXpress orders. Specifically, CHXpress orders sent by the Exchange's off-floor order-sending firms through the Exchange's MAX system would be assessed a fee of $.0005 per share. CHXpress orders entered by a CHX market maker, or by CHX floor broker on behalf of a customer, would not be assessed a specific CHXpress order transaction fee, but would remain subject to the existing transaction fees (and fee reductions and caps) that are currently applicable to market maker and floor broker executions. 6 The CHXpress transaction fee would apply to eligible orders sent through the CHXpress functionality when it is rolled out later this year. 6 Agency executions through a floor broker currently are $.0035 per share (for executions in “dual trading system” issues) and $.0025 per share (for executions in Nasdaq/NM securities), up to a maximum of $100 per side and subject to certain fee reductions and caps. Executions by market makers currently are set at $.0050 per share (up to a maximum of $100 per side) and also are subject to certain fee reductions and caps. According to the CHX, these fees charged to market makers are set at these higher per share rates for a variety of reasons, including the need to help defray the costs associated with the Exchange's regulatory activities with respect to its market makers and the costs associated with any license fees that the Exchange pays in connection with the trading of certain products. *See* Securities Exchange Act Release No. 34-49357 (March 3, 2004), 69 FR 11681 (March 11, 2004) (regarding the market maker transaction fees). Moreover, although specialists pay a fixed fee associated with the trading of their assigned issues, floor brokers do not currently do so; according to the Exchange, transaction fees assessed on floor broker executions help the cover the Exchange's costs of providing regulatory and technology services to its floor broker community. 3. Statutory Basis The CHX believes that its proposal to amend its schedule of dues, fees, and charges 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, in that it is an equitable allocation of reasonable dues, fees, and other charges among its members. 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 inappropriate burden on competition. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were either solicited or received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing proposed rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act, 9 and Rule 19b-4(f)(2) 10 thereunder, because it establishes or changes a due, fee, or other charge. 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 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-CHX-2004-32 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-CHX-2004-32. 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 CHX. 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-CHX-2004-32 and should be submitted on or before November 9, 2004. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 11 11 CFR 200.30-3(a)(12). Margaret H. McFarland, Deputy Secretary. [FR Doc. E4-2713 Filed 10-18-04; 8:45 am] BILLING CODE 8010-01—P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50501; File No. SR-NASD-2004-138] Self-Regulatory Organizations; Notice of Filing and Order Granting Accelerated Approval of a Proposed Rule Change by National Association of Securities Dealers, Inc. Relating to the Listing and Trading of Performance Leveraged Upside Securities Based on the Value of the Dow Jones Euro Stoxx 50 Index October 7, 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 September 14, 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” or “SEC”) the proposed rule change as described in Items I and II below, which Items have been prepared by Nasdaq. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons and is approving the proposal on an accelerated basis. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of the Substance of the Proposed Rule Change Nasdaq proposes to list and trade Performance Leveraged Upside Securities SM Based (“PLUS”) on the Value of the Dow Jones Euro Stoxx 50 Index (“Notes”) issued by Morgan Stanley (“Morgan Stanley”). II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the 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 III 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 2. Purpose Nasdaq proposes to list and trade PLUS, the return on which is based upon the Dow Jones Euro Stoxx 50 Index (“Index”). Under NASD Rule 4420(f), Nasdaq may approve for listing and trading innovative securities that cannot be readily categorized under traditional listing guidelines. 3 Nasdaq proposes to list and trade notes based on the Index under NASD Rule 4420(f). 3 *See* Securities Exchange Act Release No. 34-32988 (September 29, 1993), 58 FR 52124 (October 6, 1993). The Notes, which will be registered under Section 12 of the Act, will initially be subject to Nasdaq's listing criteria for other securities under NASD Rule 4420(f). Specifically, under NASD Rule 4420(f)(1):

(A)The issuer shall have assets in excess of $100 million and stockholders' equity of at least $10 million. 4 In the case of an issuer which is unable to satisfy the income criteria set forth in Rule 4420(a)(1), Nasdaq generally will require the issuer to have the following:

(i)Assets in excess of $200 million and stockholders' equity of at least $10 million; or

(ii)assets in excess of $100 million and stockholders' equity of at least $20 million; 4 Morgan Stanley satisfies this listing criterion.

(B)There must be a minimum of 400 holders of the security; provided, however, that if the instrument is traded in $1,000 denominations, there must be a minimum of 100 holders;

(C)For equity securities designated pursuant to this paragraph, there must be a minimum public distribution of 1,000,000 trading units; and

(D)The aggregate market value/principal amount of the security will be at least $4 million. In addition, Morgan Stanley satisfies the listed marketplace requirement set forth in NASD Rule 4420(f)(2). 5 Lastly, pursuant to NASD Rule 4420(f)(3), prior to the commencement of trading of the Notes, Nasdaq will distribute a circular to members providing guidance regarding compliance responsibilities and requirements, including suitability recommendations, and highlighting the special risks and characteristics of the Notes. 6 In particular, Nasdaq will advise members recommending a transaction in the Notes to:

(1)Determine that such transaction is suitable for the customer; and

(2)have a reasonable basis for believing that the customer can evaluate the special characteristics of, and is able to bear the financial risks of, such transaction. 5 NASD Rule 4420(f)(2) requires issuers of securities designated pursuant to this paragraph to be listed on The Nasdaq National Market or the New York Stock Exchange, Inc. (“NYSE”) or be an affiliate of a company listed on The Nasdaq National Market or the NYSE; provided, however, that the provisions of NASD Rule 4450 will be applied to sovereign issuers of “other” securities on a case-by-case basis. 6 *See* NASD Rule 2310 and IM 2310-2, discussed below. The Notes will be subject to Nasdaq's continued listing criterion for other securities pursuant to NASD Rule 4450(c). Under this criterion, the aggregate market value or principal amount of publicly-held units must be at least $1 million. The Notes also must have at least two registered and active market makers as required by NASD Rule 4310(c)(1). Nasdaq will also consider prohibiting the continued listing of the Notes if Morgan Stanley is not able to meet its obligations on the Notes. The Notes are medium-term, senior non-convertible debt securities that will be issued by Morgan Stanley. The original public offering price of the Notes will be $10 per PLUS. Unlike, ordinary debt securities, the Notes will not pay interest and do not guarantee any rate of return of principal at maturity. The Notes also are not subject to redemption by Morgan Stanley or at the option of any beneficial owner before maturity. 7 7 The actual maturity date is September 30, 2009. At maturity, if the value of the Index has increased, a beneficial owner will be entitled to receive a payment on the Notes based on 300% the amount of that percentage increase, subject to a maximum total payment at maturity that is expected to be between $15.85 and $16.30 per Note (the “Maximum Payment at Maturity”). 8 Thus, the Notes provide investors the opportunity to obtain leveraged upside returns based on the Index subject to a cap that is expected to represent an appreciation of 58.5% to 63% over the original issue price of the Notes. Unlike ordinary debt securities, the Notes do not guarantee any return of principal at maturity. Therefore, if the value of the Index has declined from the time of pricing to the time of maturity, a beneficial owner will receive less, and possibly significantly less, than the original issue price of $10 per PLUS. 8 The actual Maximum Payment at Maturity will be determined at the time of pricing of the Notes. Any payment that a beneficial owner will be entitled to receive at maturity depends entirely on:

(a)The relation of the value of the Index generally on second trading day prior to the date when the Notes are due (the “Final Index Value”); and

(b)the value of the Index on the day they are priced for initial sale to the public (the “Initial Index Value”). If the Final Index Value is greater than the Initial Index Value, the payment at maturity per PLUS will equal the lesser of:

(a)$10 plus the Leveraged Upside Payment 9 and

(i)$10 and

(ii)300% and

(iii)the Index Percent Increase (a fraction, the numerator of which is the Final Index Value minus the Initial Index Value and the denominator of which is the Initial Index Value). 10 The Index Performance Factor is a fraction, the numerator of which is the Final Index Value and the denominator of which is the Initial Index Value. The Notes are cash-settled in U.S. dollars and do not give the holder any right to receive a portfolio security, dividend payments or any other ownership right or interest in the portfolio or index of securities comprising the Index. The Commission has previously approved the listing of options on, and other securities the performance of which have been linked to or based on, the Index. 11 11 *See* Securities Exchange Act Release Nos. 49715 (May 17, 2004), 69 FR 29597 (May 24, 2004) (approving listing and trading of 97% Protected Notes Linked to the Performance of the Global Equity Basket, which included the Index); 46021 (June 3, 2002), 67 FR 39753 (June 10, 2002) (approving listing and trading of notes based on the Dow Jones EURO STOXX 50 Return Index, which is based on the Index); and 40303 (August 4, 1998), 63 FR 42892 (August 11, 1998) (approving listing and trading of BRoad InDex Guarded Equity-linked Securities linked to the value of the Index). The Index was created and is published by STOXX Limited (“STOXX”), a joint venture founded by SWX-Swiss Exchange, Deutsche Boerse AG, and Dow Jones & Company. 12 The companies that are included in the Index are selected by STOXX and are representative of a broad market and a wide array of European industries. The Index is composed of 50 components stocks of the large-cap markets of the European and Eurozone regions. 13 The component stocks have a high degree of liquidity and represent the largest companies across all market sectors defined by the Dow Jones Global Classification Standard.” Publication of the Index began on February 26, 1998, based on an initial value of the Index of 1,000 at December 31, 1991. The Index is currently calculated by

(i)multiplying the per share price of each underlying security by the number of free-float adjusted outstanding shares (and, if the stock is not quoted in euros, then multiplied by the country currency and an exchange factor which reflects the exchange rate between the country currency and the euro);

(ii)calculating the sum of all these products (the “Index Aggregate Market Capitalization”); and

(iii)dividing the Index Aggregate Market Capitalization by a divisor which represents the Index Aggregate Market Capitalization on the base date of the Index and which can be adjusted to allow changes in the issued share capital of individual underlying securities, including the deletion and addition of stocks, the substitution of stocks, stock dividends and stock splits, to be made without distorting the Index. 12 STOXX has an advisory committee composed, in part, of securities firms. STOXX states that while its advisory committee generally advises the STOXX Supervisory Board on the composition, accuracy, transparency and methodology of the indexes in line with the current Dow Jones STOXX Index Guide, the Supervisory Board makes all decisions on the composition and accuracy of the Index and all changes to the Index methodology. STOXX advises that STOXX has implemented and maintains procedures designed to prevent the use and dissemination of material, non-public information relating to the Dow Jones Euro STOXX 50 Index. Telephone conversation between Alex Kogan, Associate General Counsel, Amex, to Florence Harmon, Senior Special Counsel, Division of Market Regulation (“Division”), Commission, dated October 6, 2004. 13 Telephone conversation between Alex Kogan, Associate General Counsel, Amex, to Florence Harmon, Senior Special Counsel, Division, Commission, dated October 5, 2004. The value of the Index is updated by STOXX every 15 seconds when European markets are open. The 15-second value of the Index, the list of the Index components and the current divisor can also be found can be accessed from *http://www.stoxx.com* . Real-time dissemination of the Index, adjusted for fluctuations in foreign currency trading prices after European markets close, is available through vendors such as Bloomberg. In the event, SWX-Swiss Exchange, Deutsche Boerse AG and Dow Jones & Company cease to maintain and disseminate the Index, Nasdaq will contact the Commission staff to consider prohibiting the continued trading of the Notes. 14 14 Telephone conference between Alex Kogan, Associate General Counsel, Nasdaq, and Florence Harmon, Senior Special Counsel, Division, dated October 4, 2004. As of August 30, 2004, the highest-weighted stock in the Index had the weight of approximately 7.5%; all other components had lower weights. The top five stocks in the Index had the cumulative weight of approximately 25.1%. The following stock markets are (as of August 30, 2004) the primary listing markets for the Index components: Deutsche Boerse (23.5% of the Index weight), Euronext Amsterdam (18.8%), 15 Borsa Italiana (11.1%), Euronext Paris (30.2%), the Spanish Stock Market (12.9%) and HEX Helsinki (3.5%). A number of the Index components are traded on more than one major European market. In addition, 31 of the 50 Index issuers currently have sponsored ADRs listed on the NYSE, and 9 have non-sponsored ADRs trading in the United States. 15 One of the component stocks with a primary listing in Amsterdam maintains a second “primary listing” on Euronext Brussels. This component comprises approximately 1.6% of the total Index weight. As of August 30, 2004, the average daily trading volume for a single Index component was approximately 9.63 million shares. 16 As of the same date, the market capitalization of the components ranged from approximately 105 billion euros to approximately 8 billion euros. These figures corresponded approximately to 126.8 billion U.S. dollars and 9.6 billion U.S. dollars. 16 This figure represents the average of the average number of shares of each Index component traded for the past 30 trading days. It is calculated by taking the sum of the volumes of the individual Index components for the past 30 trading days, dividing it by the total number of components (50), and then dividing the result by 30. The composition of the Index is reviewed annually, and changes are implemented on the third Friday in September, using market data from the end of July as the basis for the review process. Changes in the composition of the Index are made to ensure that the Index includes those companies that, within the eligible countries and within each industry sector, have the greatest market capitalization. The Index is also reviewed on an on-going basis, and changes in the composition of the Index may be necessary if there have been extraordinary events for one of the issuers of the underlying securities, *e.g.* , delisting, bankruptcy, merger or takeover. In these cases, the event is taken into account as soon as it is effective. The underlying securities may be changed at any time for any reason. Neither STOXX nor any of its founders is affiliated with Morgan Stanley and neither has participated in any way in the creation of the Notes. 17 17 Telephone conversation between Alex Kogan, Associate General Counsel, Amex, to Florence Harmon, Senior Special Counsel, Division, Commission, dated October 6, 2004. In calculating the Index, STOXX uses a divisor, currently equal to 512.863106, which represents the Index Aggregate Market Capitalization on the base date and which can be adjusted to allow changes in the issues share capital of individual underlying securities, including the deletion and addition of stocks, the substitution of stocks, stock dividends and stock splits, to be made without distorting the Index. 18 18 Telephone conference between Alex Kogan, Associate General Counsel, Nasdaq, and Florence Harmon, Senior Special Counsel, Division, dated October 4, 2004. Nasdaq represents that NASD's surveillance procedures are adequate to properly monitor the trading of the Notes. Specifically, NASD will rely on its current surveillance procedures governing equity securities and will include additional monitoring on key pricing dates. If manipulative activity or other types of trading activity that raise regulatory concerns are suspected and involve Index component stocks, then, in order to obtain the needed information, the NASD will rely on the Intermarket Surveillance Group (“ISG”) Agreement, to which the NASD and some of the Index component markets are parties, on the Memoranda of Understanding and similar arrangements (“MOUs”) between the Commission (or the United States) and the relevant foreign regulators or countries (the ISG Agreement and the MOUs are referred to collectively as “Surveillance Information Sharing Arrangements”), and on information available domestically with respect to those issuers that list sponsored ADRs in the United States. At present, in excess of 90% of the capitalization of the Index is subject to the Surveillance Information Sharing Arrangements. 19 19 Nasdaq represents that there is only one foreign stock exchange, HEX Helsinki, currently represented in the Index that is not subject either to the ISG Agreement with the NASD or to an MOU with the Commission. There is one Index stock that is currently listed on that exchange. This stock, Nokia, represents approximately 4 percent of the weight of the Index, and has a sponsored ADR listed on the NYSE. Telephone conference between Alex Kogan, Associate General Counsel, Nasdaq, and Florence Harmon, Senior Special Counsel, Division, dated October 5, 2004. Nasdaq will contact Commission staff regarding continued listing of the Notes if:

(i)The home countries of the component securities representing more than 50% of the capitalization of the Index are not subject to Surveillance Information Sharing Arrangements with the NASD;

(ii)a home country of the component securities representing more than 20% of the capitalization of the Index is not subject to Surveillance Information Sharing Arrangements; and

(iii)two home countries of component securities representing more than 33 1/3 % of the capitalization of the Index are not subject to the Surveillance Information Sharing Arrangements with the NASD. 20 20 *Cf.* Securities Exchange Act Release No. 34-46021 (June 3, 2002), 67 FR 39753 (June 10, 2002) (approving the listing and trading of notes based on the Select European 50 Index with similar statement regarding surveillance obligations). Since the Notes will be deemed equity securities for the purpose of NASD Rule 4420(f), the NASD and Nasdaq's existing equity trading rules will apply to the Notes. Pursuant to NASD Rule 2310 and IM-2310-2, members must have reasonable grounds for believing that a recommendation to a customer regarding the purchase, sale or exchange of any security is suitable for such customer upon the basis of the facts, if any, disclosed by such customer as to his other security holdings and as to his financial situation and needs. 21 In addition, as previously described, Nasdaq will distribute a circular to members providing guidance regarding compliance responsibilities and requirements, including suitability recommendations, and highlighting the special risks and characteristics of the Notes. Furthermore, the Notes will be subject to the equity margin rules. Lastly, the regular equity trading hours of 9:30 am to 4 pm will apply to transactions in the Notes. 21 Prior to the execution of a transaction in the Notes that has been recommended to a non-institutional customer, NASD Rule 2310(b) requires a member to make reasonable efforts to obtain information concerning a customer's financial status, a customer's tax status, the customer's investment objectives, and such other information used or considered to be reasonable by such member or registered representative in making recommendations to the customer. Pursuant to Rule 10A-3 of the Act 22 and Section 3 of the Sarbanes-Oxley Act of 2002, 23 Nasdaq will prohibit the initial or continued listing of any security of an issuer that is not in compliance with the requirements set forth therein. 22 17 CFR 240.10A-3. 23 Pub. L. 107-204, 116 Stat. 745 (2002). Morgan Stanley will deliver a prospectus in connection with the initial purchase of the Notes. The procedure for the delivery of a prospectus will be the same as Morgan Stanley's current procedure involving primary offerings. 2. Statutory Basis Nasdaq believes that the proposed rule change is consistent with the provisions of Section 15A of the Act, 24 in general, and with Section 15A(b)(6) of the Act, 25 in particular, in that the proposal 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, in general, to protect investors and the public interest. Specifically, the proposed rule change will provide investors with another investment vehicle based on the Index. 24 15 U.S.C. 78 *o* -3. 25 15 U.S.C. 78 *o* -3(6). 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. 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-NASD-2004-138 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-2004-138. 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 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-2004-138 and should be submitted on or before November 8, 2004. IV. Commission's Findings and Order Granting Accelerated Approval of Proposed Rule Change Nasdaq requests that the Commission approve this filing on an accelerated basis since it raises no new or novel issues and will enable Nasdaq to accommodate the timetable of listing the Notes. In this regard, Nasdaq notes, and the Commission concurs, that the Commission has previously approved the listing of options on, and/or securities the based on the Index. 26 The Commission has also previously approved the listing of securities with a structure that is the same or substantially the same as that of the Notes. 26 *See* Securities Exchange Act Release Nos. 49715 (May 17, 2004), 69 FR 29597 (May 24, 2004) (approving listing and trading of 97% Protected Notes Linked to the Performance of the Global Equity Basket, which included the Index); 46021 (June 3, 2002), 67 FR 39753 (June 10, 2002) (approving listing and trading of notes based on the Dow Jones EURO STOXX 50 Return Index, which is based on the Index); and 40303 (August 4, 1998), 63 FR 42892 (August 11, 1998) (approving listing and trading of BRoad InDex Guarded Equity-linked Securities linked to the value of the Index). After careful consideration, the Commission finds that the proposed rule change, is consistent with the requirements of the Act and the rules and regulations thereunder, applicable to a national securities association, and, in particular, with the requirements of Section 15A(b)(6) of the Act 27 in that it is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market, and, in general, to protect investors and the public interest. 28 The Commission believes that the Notes will provide investors with a means of participating in the market for foreign securities. 27 15 U.S.C. 78 *o* -3(b)(6). 28 In approving the proposed rule, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). The Notes are a medium-term, senior non-convertible debt securities whose price will be based on the value of the Index. In particular, the Commission believes that the Notes provide investors the opportunity to obtain upside leveraged returns based on the Index subject to a cap that is expected to represent an appreciation of 58.5% to 63% over the original issue price of the Notes. Unlike ordinary debt securities, the Notes do not pay interest or guarantee any return of principal at maturity. If the value of the Index has declined from the time of pricing to the time of maturity, a beneficial owner will receive less, and possibly significantly less, than the original issue price of $10 per PLUS. The Commission notes that the return of the Notes, if the Index declines, is not leveraged. At maturity, if the value of the Index has increased, a beneficial owner will be entitled to receive a payment on the Notes based on 300% the amount of that percentage increase, subject to the Maximum Total Payment at Maturity, which is expected to be between $15.85 and $16.30 per Note. Any payment that a beneficial owner will be entitled to receive at maturity depends entirely on the relation of the value of the Index and the value of the Index on the day they are priced for initial sale to the public. If the Final Index Value is greater than the Initial Index Value, the payment at maturity per PLUS will equal the lesser of:

(a)$10 plus the Leveraged Upside Payment and

(b)the Maximum Payment at Maturity. If the Final Index Value is less than or equal to the Initial Index Value, the payment at maturity per PLUS will equal $10 times the Index Performance Factor. Because the Final Index Value on the Notes is derivatively priced and based upon the performance value of the Index, there are several issues regarding the trading of this type of product. For reasons discussed below, the Commission believes that Nasdaq's proposal adequately addresses the concerns raised by this type of product. First, the Commission notes that the protections of NASD Rule 4420(f) were designed to address the concerns attendant to the trading of hybrid securities like the Notes. 29 In particular, by imposing the hybrid listing standards, suitability for recommendations, 30 and compliance requirements, noted above, the Commission believes that Nasdaq has adequately addressed the potential problems that could arise from the hybrid nature of the Notes. The Commission notes that Nasdaq will distribute a circular to its membership that provides guidance regarding member firm compliance responsibilities and requirements, including suitability recommendations, and highlights the special risks and characteristics associated with the Notes. Specifically, among other things, the circular will indicate that the Notes do not guarantee a total return of principal at maturity, that the upside return on the Notes is expected to be capped between 58.5% to 63% over the original issue price $10 per PLUS, 31 that the Notes will not pay interest, and that the Notes will provide exposure in the Index. Distribution of the circular should help to ensure that only customers with an understanding of the risks attendant to the trading of the Notes and who are able to bear the financial risks associated with transactions in the Notes will trade the Notes. In addition, the Commission notes that Morgan Stanley will deliver a prospectus in connection with the initial purchase of the Notes. 29 *See* 1993 Order, *supra* note 3. 30 As discussed above, Nasdaq will advise members recommending a transaction in the Notes to:

(1)Determine that the transaction is suitable for the customer; and

(2)have a reasonable basis for believing that the customer can evaluate the special characteristics of, and is able to bear the financial risks of, the transaction. 31 The Commission notes that the actual Initial Index Value on the day the Notes are priced for initial sale to the public will be disclosed in the final prospectus supplement. Second, the Commission notes that the final rate of return on the Notes depends, in part, upon the individual credit of the issuer, Morgan Stanley. To some extent this credit risk is minimized by the NASD's listing standards in NASD Rule 4420(f), which provide that only issuers satisfying substantial asset and equity requirements may issue these types of hybrid securities. In addition, the NASD's hybrid listing standards further require that the Notes have at least $4 million in market value. Third, the Notes will be registered under Section 12 of the Act. As noted above, the NASD's and Nasdaq's existing equity trading rules will apply to the Notes, which will be subject to equity margin rules and will trade during the regular equity trading hours of 9:30 a.m. to 4 p.m. NASD Regulation's surveillance procedures for the Notes will be the same as its current surveillance procedures for equity securities and will include additional monitoring on key pricing dates. Fourth, the Commission has a systemic concern that a broker-dealer, such as Morgan Stanley, or a subsidiary providing a hedge for the issuer will incur position exposure. However, as the Commission has concluded in previous approval orders for the hybrid instruments issued by broker-dealers, 32 the Commission believes that this concern is minimal given the size of the Notes issuance in relation to the net worth of Morgan Stanley. 33 32 *See* Securities Exchange Act Release Nos. 44913 (October 9, 2001), 66 FR 52469 (October 15, 2001) (order approving File No. SR-NASD-2001-73) (approving the listing and trading of notes issued by Morgan Stanley Dean Witter & Co. whose return is based on the performance of the Index); 44483 (June 27, 2001), 66 FR 35677 (July 6, 2001) (order approving File No. SR-Amex-2001-40) (approving the listing and trading of notes issued by Merrill Lynch whose return is based on a portfolio of 20 securities selected from the Amex Institutional Index); and 37744 (September 27, 1996), 61 FR 52480 (October 7, 1996) (order approving File No. SR-Amex-96-27) (approving the listing and trading of notes issued by Merrill Lynch whose return is based on a weighted portfolio of healthcare/biotechnology industry securities). 33 The original issue price of the Notes includes commissions (and the secondary market prices are likely to exclude commissions) and Morgan Stanley's costs of hedging its obligations under the Notes. The costs could increase the Initial Value of the Notes, thus affecting the payment investors receive at maturity. The Commission expects such hedging activity to be conducted in accordance with applicable regulatory requirements. The Commission finds good cause for approving the proposed rule change prior to the thirtieth day after the publication of the notice of filing thereof in the **Federal Register** . The Commission believes the Notes will provide investors with an additional investment choice and the accelerated approval of the proposal and allow investors to begin trading the Notes promptly. In addition, the Commission notes that it has previously approved the listing of options on, and/or securities the performance of which is based on the Index. 34 The Commission has also previously approved the listing of securities with a structure that is the same or substantially the same as the Notes. 35 34 *See supra* note 11. 35 *See* Securities Exchange Act Release Nos. 48677 (October 21, 2003), 68 FR 61524 (October 28, 2003) (approving the listing and trading of Accelerated Return Notes linked to the S&P 500); 47464 (March 7, 2003), 68 FR 12116 (March 13, 2003) (approving the listing and trading of Market Recovery Notes Linked to the S&P 500); 30394 (February 21, 1992), 57 FR 7409 (March 2, 1992) (approving the listing and trading of a unit investment trust linked to the S&P 500); 27382 (October 26, 1989), 54 FR 45834 (October 31, 1989) (approving the listing and trading of Exchange Stock Portfolios based on the value of the S&P 500); 31591 (December 11, 1992), 57 FR 60253 (December 18, 1992) (approving the listing and trading of Portfolio Depositary Receipts based on the S&P 500); and 19907 (June 24, 1983), 48 FR 30814 (July 5, 1983) (approving the listing and trading of options on the S&P 500). Accordingly, the Commission believes there is good cause, consistent with Sections 15A(b)(6) and 19(b)(2) of the Act, 36 to approve the proposal, on an accelerated basis. 36 15 U.S.C. 78 *o* 3(b)(6) and 78s(b)(2). V. Conclusion *It is therefore ordered,* pursuant to Section 19(b)(2) of the Act, 37 that the proposed rule change (SR-NASD-2004-138) is hereby approved on an accelerated basis. 37 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 38 38 17 CFR 200.30-3(a)(12). Margaret H. McFarland, Deputy Secretary. [FR Doc. E4-2709 Filed 10-18-04; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50510; File No. SR-NYSE-2004-29] Self-Regulatory Organizations; Notice of Filing of Proposed Rule Change and Amendment Nos. 1 and 2 Thereto by the New York Stock Exchange, Inc., Relating to Amendments to Procedures for the Appointment of Arbitrators to Arbitration Cases October 8, 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 June 10, 2004, the New York Stock Exchange, Inc. (“NYSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed amendments to its arbitration rules as described in Items I, II and III below, which items have been prepared by NYSE. 3 On October 6, 2004, NYSE submitted Amendment Nos. 1 and 2 to the proposed rule change. 4 The Commission is publishing this notice to solicit comments on the proposed rule change, as amended by Amendment Nos. 1 and 2, from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 Although the proposed rule has not yet been published for comment, the Commission has received 1 comment letter, which is discussed below in note 3 and related text. 4 *See* letter from Karen Kupersmith, Director of Arbitration, NYSE, to Catherine McGuire, Chief Counsel, Division of Market Regulation, Commission, dated August 16, 2004 (“Amendment No. 1”); and letter from Karen Kupersmith, Director of Arbitration, NYSE, to Catherine McGuire, Chief Counsel, Division of Market Regulation, Commission, dated October 5, 2004 (“Amendment No. 2”). 1. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The proposed rule change consists of amendments to NYSE Rule 607 concerning the procedures for the appointment of arbitrators to arbitration cases administered by NYSE. The proposed rule change would modify and make permanent an alternative method for the appointment of arbitrators currently offered under a pilot program. 5 The text of the proposed rule change, as amended by Amendment Nos. 1 and 2, is set forth below. Additions are in italics; deletions are in brackets. 5 The pilot program originally was set up for a two-year period. *See* Release No. 34-43214 (August 28, 2000), 65 FR 53247 (September 1, 2000) (SR-NYSE-2000-34) (order approving pilot program). Upon expiration of the two-year period, NYSE renewed the pilot for an additional two years, which expired on July 31, 2004, and then again until January 31, 2005. *See* Release No. 34-46372 (August 16, 2002), 67 FR 54521 (August 22, 2002) (SR-NYSE-2002-30) (order approving first extension of pilot program); Release No. 34-49915 (June 25, 2004), 69 FR 39993 (July 1, 2004) (SR-NYSE-2004-28) (order approving second extension of pilot program). Rule 607 [Designation of Number of Arbitrators] Appointment of Arbitrators

(1)In all arbitration matters involving customers and non-members where the matter in controversy exceeds $25,000, or where the matter in controversy does not involve or disclose a money claim, the Director of Arbitration shall appoint an arbitration panel which shall consist of no less than three

(3)arbitrators, at least a majority of whom shall not be from the securities industry, unless the customer or non-member requests a panel consisting of at least a majority from the securities industry.

(2)An arbitrator will be deemed as being from the securities industry if he or she:

(i)Is a person associated with a member, broker/dealer, government securities broker, government securities dealer, municipal securities dealer or registered investment adviser, or

(ii)Has been associated with any of the above within the past five

(5)years, or

(iii)Is retired from or spent a substantial part of his or her business career in any of the above, or

(iv)Is an attorney, accountant or other professional who devoted twenty

(20)percent or more of his or her professional work effort to securities industry clients within the last two

(2)years [.] *, or*

(v)Is an individual who is registered under the Commodity Exchange Act or is a member of a registered futures association or any commodity exchange or is associated with any such person(s).

(3)An arbitrator who is not from the securities industry shall be deemed a public arbitrator. A person will not be classified as a public arbitrator if he or she has a spouse or other member of the household who is a person associated with a registered broker, dealer, municipal securities dealer, government securities broker, government securities dealer or investment adviser.

(b)Composition of Panels The individuals who shall serve on a particular arbitration panel shall be determined by the Director of Arbitration. The Director of Arbitration may name the chairman of each panel. [Voluntary Supplemental Procedures for Selecting Arbitrators] [(a)] *(c)* Party Agreement on Arbitrator Selection [Under Exchange Rules, the Director of Arbitration appoints the arbitrators, subject to the parties' peremptory challenges. The parties may agree on an alternative way to select arbitrators.] If all parties agree, they may select the arbitrators [themselves or decide how they will be selected. The Exchange will accommodate any reasonable alternative way to select arbitrators, provided the parties agree. The Exchange also offers two alternative ways to appoint arbitrators. The following is a brief description of each method] *according to Random List Selection, as described below.* [(b) Random List Selection] [1.] *(1) Random List Selection—* The Number and Type of Arbitrators

(i)Claims up to $25,000. One public arbitrator *, unless the customer or non-member requests a securities industry arbitrator,* will decide claims up to $25,000 (not including costs and interest).

(ii)Claims above $25,000 or where no dollar amount is claimed or disclosed. Three arbitrators will decide claims above $25,000 (not including costs and interest) or where no dollar amount is claimed or disclosed. The arbitration panel shall consist of a majority of public arbitrators, unless the customer or non-member requests a majority from the securities industry.

(iii)How we classify arbitrators. A securities industry arbitrator is defined in NYSE Rule 607(a)(2). A public arbitrator is defined in NYSE Rule 607(a)(3). See also NYSE Guidelines for Classification of Arbitrators. [2.] *(2)* Selecting Arbitrators [(in place of NYSE Rule 608 Notice of Selection of Arbitrators)]

(i)Lists of Arbitrators [(1)] *(a)* If one arbitrator hears [a] *the* case, the Director of Arbitration will send each party a randomly-generated list *containing the names* of *three* public arbitrators, unless the customer or non-member requests *securities* industry arbitrators. *Each party may use one strike against this list.* [(2)] *(b)* If three arbitrators [will] hear the case, the Director *of Arbitration* will send each party two randomly-generated lists[, one of public arbitrators and one of securities industry arbitrators]. * One list will contain the names of ten public arbitrators and the other list will contain the names of five securities industry arbitrators. If the customer or non-member requests a majority of securities industry arbitrators, one list will contain the names of ten securities industry arbitrators and the other list will contain the names of five public arbitrators. Each party may use four strikes against the list of ten arbitrators and two strikes against the list of five arbitrators. * *(c) The strikes referred to in

(a)and

(b)above are in lieu of the peremptory challenges referenced in Rule 609.* [(3)] *(d)* With the lists, [you] *the parties* will also receive the arbitrators' biographical profile. [and his or her] *Upon request, the Exchange will send a party an* [arbitrators'] *arbitrator's* last three NYSE arbitration decisions, if any.

(ii)Any party may ask the Director *of Arbitration* for more information about a potential arbitrator. The request for additional information must be made within the ten business days the party has to return the lists as provided in [Section (b)(2)(iii)(1)] *(iii) below. This time period of ten business days is applicable to all requests for additional information in this Rule and Rule 608.* The NYSE shall send the arbitrator's response to all parties at the same time. The Director *of Arbitration* has discretion to limit the additional information requested from the arbitrator. The request for more information will toll the time for returning the lists to the Director *of Arbitration.*

(iii)[You] *Parties* must return [your] lists within ten business days. [(1)] *(a)* [You] *Parties* must return [your] lists to the Director *of Arbitration* within ten business days of the date [you] received [them], unless extended by the tolling period. The Director *of Arbitration* may extend the deadline for returning the lists if [the Director] *he/she* finds a reasonable basis for the extension. *The parties may also agree to extend the deadline.* [You] *Parties* must: • Strike through the names of any unacceptable arbitrators, *as limited by the number of strikes as set forth above,* and • Rank the remaining names in order of [your] preference, with “1” being the arbitrator [that you] most strongly [prefer] *preferred.* [(2)] *(b)* If [you do] *a party does* not return [your] lists on time, the Director *of Arbitration* will proceed as if all arbitrators on the lists are acceptable to [you] *that party.* The NYSE will invite arbitrators to serve in the order of the parties' mutual preferences. [We determine mutual] *Mutual* preferences *are* determined by adding together the numbers assigned to each arbitrator and selecting arbitrators with the lowest numbers first. In the event of a tie, arbitrators will be selected in alphabetical order. [(iv) Second List, if necessary

(1)If the Exchange cannot select arbitrators from the remaining names, a second list will be sent to the parties. The second list will contain three names for each vacancy on the panel. On the second list, each party has one non-renewable peremptory challenge for each vacancy on the panel. Each party is to number the remaining names in order of its preference. You must return the list to the Director within ten business days of the date you received it. The NYSE will invite arbitrators to serve in the order of the parties' mutual preferences.] [(2)] *(c)* If no acceptable arbitrators are left on the [second list] *lists,* the Director *of Arbitration* will randomly appoint arbitrators. The Director *of Arbitration* will also randomly appoint one or more arbitrators if:

(i)Acceptable arbitrators are unable to serve; or

(ii)arbitrators cannot be found on the lists for any other reason. [3.] *(3)* Objecting to Potential Arbitrators ([a] *i* ) Multiple Parties. In cases where there are two or more people designated as claimants, respondents and/or third party respondents, each group so designated will share one set of strikes. The Director of Arbitration may allow additional strikes if [the Director] *he/she* determines that justice would be served by doing so. ([b] *ii* ) Challenges for Cause. [You] *Parties* have an unlimited number of challenges for cause. The Director *of Arbitration* will determine *in accordance with Rule 609(b)* whether to grant a challenge for cause. If any arbitrator is removed from the list “for cause” before the expiration of the time to return the lists, a replacement name will be provided. [4.] *(4)* Filling Vacancies of Arbitrators ([a] *i* ) Vacancies before the first hearing. If an arbitrator must withdraw before the first hearing, the Director *of Arbitration* will invite the next arbitrator on the parties' lists to fill the vacancy. If there are no remaining names, or if the vacancy cannot be filled from the names on the lists, the Director *of Arbitration* will randomly appoint an arbitrator. [You] *A party* will receive the arbitrator's biographical profile *, and upon request,* [and] his or her last three NYSE arbitration decisions, if any, for the last 10 years *(see 2.(i)(d)).* [You] *A party* may ask the Director *of Arbitration* for additional information on the proposed arbitrator's background *, and* [You] may challenge the arbitrator for cause. ([b] *ii* ) Vacancies after the hearing starts. This circumstance is governed by NYSE Rule 611. [5.] *(5)* Disclosures After the Exchange assembles a complete panel of arbitrators, the Exchange will notify the arbitrators of their appointment. The Exchange will advise the parties of any information disclosed by the arbitrators under Rule 610 (Disclosures Required by Arbitrators). [(c) Enhanced List Selection I. The Number and Type of Arbitrators The Exchange will provide the parties with the names and profiles of six “Public” and three “Securities” arbitrators, unless the customer or non-member requests a majority of industry arbitrators. The Exchange will screen potential arbitrators for conflicts and availability and, if applicable, employment law experience or training, or other applicable expertise. The Director of Arbitration will advise the parties of any information disclosed by the arbitrators under Rule 610 (Disclosures Required by Arbitrators). II. Selecting Arbitrators

(a)You Must Return Your Lists Within Ten Business Days You must return your lists within ten business days. You will have ten business days from receipt of the lists to strike up to three names and number the remaining names, in order of their preference. The number “1” signifies the arbitrator that you most strongly prefer. The Exchange will appoint three arbitrators (two public and one securities) using the combined preference rankings of the parties. If a party does not return the lists within ten business days, the Exchange will consider all arbitrators on the lists as acceptable. If there is a tie in the rankings, the Exchange will invite arbitrators to serve in alphabetical order.

(b)Administrative Appointment If an arbitrator is unable to serve, the Exchange will contact the next arbitrator from the remaining names on the lists. If the lists have been exhausted, the Exchange will appoint an arbitrator from outside the list. When the Exchange appoints an arbitrator, each party has one peremptory challenge for each arbitrator the Exchange appoints. A party must use a peremptory challenge within ten business days of receiving notice of the appointment of the arbitrator. III. Multiple Parties In cases where there are two or more people designated as claimants, respondents or third party respondents, each group so designated will share one set of strikes and/or one peremptory challenge. The Director of Arbitration may allow additional peremptory challenges if he determines that justice would be served by doing so. IV. Challenges for Cause The parties have unlimited challenges for cause. The Director of Arbitration will decide whether to grant a challenge for cause. If any arbitrator is removed from the list “for cause” before the end of the time to return the lists, the Director of Arbitration will provide the parties with a replacement name.] 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 self-regulatory organization included statements concerning the purpose of and basis for the proposed rule changes. The text of these statements may be examined at the places specified in Item IV below and is set forth in Sections A, B and C below. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose NYSE currently has several methods by which arbitrators are assigned to cases, including the traditional method pursuant to NYSE Rule 607, by which NYSE staff appoints arbitrators to cases. On August 1, 2000, NYSE implemented a pilot program to allow parties, on a voluntary basis, to select arbitrators under other alternative methods (in addition to the traditional method). The first alternative under the pilot is the Random List Selection method, by which the parties are provided randomly generated lists of public and securities industry arbitrators. The parties have ten days to strike and rank the names on the lists. Based on mutual ranking of the lists, the highest-ranking arbitrators are invited to serve on the case. If a panel cannot be generated from the first list, a second list is generated and sent to the parties, which provides three potential arbitrators for each vacancy and allows each party to use one peremptory challenge for each vacancy. If vacancies remain after the second list has been processed, arbitrators are randomly assigned by NYSE staff to serve, subject only to challenges for cause. The second alternative method under the pilot is Enhanced List Selection, in which six public and three securities classified arbitrators are selected for lists by NYSE staff, based on the arbitrators' qualifications and expertise. The lists are sent to the parties. The parties are permitted to use a limited number of strikes and are required to rank the arbitrators not stricken. Based on mutual ranking of the lists, the highest-ranking arbitrators are invited to serve on the case. Under the pilot program, the Exchange also will accommodate the use of any reasonable alternative method of selecting arbitrators that the parties decide upon, provided that the parties agree. Absent agreement to the use of Random List Selection, Enhanced List Selection, or any other reasonable alternative method, the traditional method is used. The proposed rule change retains the traditional method of staff appointment of arbitrators and makes permanent a modified form of the Random List Selection currently in use. One of the modifications specifies that, for arbitrations involving a three-member panel, parties will be provided with randomly generated lists containing the names of 10 public and 5 securities industry arbitrators from which the parties may choose. The customer or non-member may request, however, that the panel consist of a majority of securities industry arbitrators. In that case, the parties will be provided with lists containing the names of 10 securities industry and 5 public arbitrators. In contrast, the pilot did not specify the numbers or types of arbitrators to be included on the lists. The proposed rule change also limits the number of strikes the parties may use: 4 against the public arbitrators and 2 against the securities industry arbitrators. Further, in order to simplify and shorten the appointment process, the proposed rule change eliminates the process of providing a second list of arbitrators to the parties in the event they cannot agree to a panel from the first list. For simplified arbitrations ( *i.e.,* those involving a one-member panel), the proposed rule change clarifies that the randomly generated selection list will contain the names of 3 arbitrators. These arbitrators will be public arbitrators, unless the customer or non-member requests otherwise. Each party may use 1 strike. For simplified as well as non-simplified arbitrations, the proposed rule change gives the parties greater flexibility by permitting them to agree to extend the deadline in which to return their lists ( *i.e.,* beyond the prescribed 10 business days). As under the pilot program, the parties must all agree to use Random List Selection, or the traditional method will be used. Finally, the proposed rule change provides that descriptions of an arbitrator's last 3 awards will be sent to a party only upon the party's request, thus eliminating unnecessary paperwork generated by the current rule. Parties now may view all awards on the NYSE Web site, which in effect provides greater access to information than before. In that parties have rarely requested Enhanced List Selection or other alternative methods offered under the pilot program, NYSE is not proposing to make them permanent parts of NYSE's arbitrator selection program. 2. Statutory Basis NYSE believes the proposed changes are consistent with Section 6(b)(5) of the Act, 6 in that they promote just and equitable principles of trade by ensuring that members and member organizations and the public have a fair and impartial forum for the resolution of their disputes. 6 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition NYSE 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. III. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others NYSE has neither solicited nor received written comments on the proposed rule change. The Commission has received, however, one comment letter from PIABA prior to the publication of the proposed rule filing. 7 The comment letter states that PIABA will have several comments on the substance of the proposed rule when it is published for comment and generally objects to the NYSE's failure to involve any participants in the arbitration process in the formulation of the proposed rule change prior to its filing with the Commission. At the Commission staff's request, NYSE has agreed to extend the comment period for the proposed rule change from 21 days to 45 days from its publication in the **Federal Register** . 7 *See* letter from Charles Austin, Jr., President, Public Investors Arbitration Bar Association, to Catherine McGuire, Chief Counsel, Division of Market Regulation, Commission, dated June 23, 2004. IV. 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 the proposed rule change, or

(B)Institute proceedings to determine whether the proposed rule change should be disapproved. V. 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-NYSE-2004-29 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-NYSE-2004-29. 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 NYSE. 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-NYSE-2004-29 and should be submitted on or before December 2, 2004. For the Commission, by the Division of Market Regulation, pursuant to delegated Authority. 8 8 17 CFR 200.30-3(a)(12). Margaret H. McFarland, Deputy Secretary. [FR Doc. E4-2708 Filed 10-18-04; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50527; File No. SR-PCX-2004-92] Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of Proposed Rule Change by the Pacific Exchange, Inc. Relating to the Options Floor Access Fee and the Remote Market Maker Access Fee October 13, 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 October 1, 2004, 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 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 PCX proposes to make a clarifying change to the PCX Schedule of Fees and Charges (“Schedule”) with respect to the Options Floor Access Fee and the Remote Market Maker Access Fee. The text of the proposed rule change is available at the Office of the Secretary, 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 self-regulatory organization 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 self-regulatory organization 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 proposes to make a clarifying change to the Schedule with respect to its Options Floor Access Fee and its Remote Market Maker Access Fee. Currently, all registered floor personnel (including Lead Market Makers, Floor Market Makers, etc.) are assessed a monthly fee of $130 for access to the Exchange with a cap of $5,000 per month per Firm. Remote Market Makers are also assessed an identical fee for their access to the Exchange. Hence, whether a Remote Market Maker accesses the Exchange from the trading floor or from off the trading floor, such Remote Market Maker is accessed one access fee of $130 per month. Since the fees are identical, the Exchange proposes to combine the two fees into one and name it “Options Access Fee.” The Exchange believes that combining the two access fees will provide greater clarity and simplify the rate schedule. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act 3 in general, and furthers the objectives of Section 6(b)(4) 4 in particular, because it is designed to provide for the equitable allocation of reasonable dues, fees, and other charges among the Exchange's members, issuers and other persons using its facilities. 3 15 U.S.C. 78f(b). 4 15 U.S.C. 78f(b)(4). At the request of the PCX, the Commission staff corrected the statutory basis provided in the original filing from Section 6(b)(5) to Section 6(b)(4) of the Act. Telephone conversation between Tania J.C. Blanford, Staff Attorney, PCX and Jennifer C. Dodd, Attorney, Division of Market Regulation, Commission on October 12, 2004. 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 5 and subparagraph (f)(2) of Rule 19b-4 thereunder 6 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. 5 15 U.S.C. 78s(b)(3)(A)(ii). 6 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 *rules-comments@sec.gov* . Please include File Number SR-PCX-2004-92 on the subject line. Paper Comments • Send paper comments in triplicate to Jonathon G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. All submissions should refer to File Number SR-PCX-2004-92. 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, 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 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 No. SR-PCX-2004-92 and should be submitted on or before November 9, 2004. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 7 7 17 CFR 200.30-3(a)(12). Margaret H. McFarland, Deputy Secretary. [FR Doc. E4-2711 Filed 10-18-04; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50523; File No. SR-PCX-2004-94] Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of Proposed Rule Change by the Pacific Exchange, Inc. Relating to a Delay of the Operative Period for Priority and Order Allocation Procedures for PCX Plus October 13, 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 October 1, 2004, 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 III below, which Items have been prepared by the Exchange. The PCX has designated this proposal as one concerned solely with the administration of the Exchange under Section 19(b)(3)(A)(iii) 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. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 15 U.S.C. 78s(b)(3)(A)(iii). 4 17 CFR 240.19b-4(f)(3). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The PCX proposes to delay the operative date of recent amendments to PCX Rule 6.76 (Priority and Allocation Procedures of PCX Plus) 5 until on or before November 10, 2004. 5 *See* Securities Exchange Act Release No. 50430 (September 23, 2004), 69 FR 58210 (September 29, 2004). 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 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 such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The Commission recently approved a rule proposal by the Exchange to amend PCX Rule 6.76(b). 6 The PCX states that the amended rules give PCX Market Makers the same access to the Consolidated Book that a Firm or Non-OTP Holder Market Maker 7 has. The Exchange believes that this rule amendment eliminates any potential biases that a PCX Market Maker may encounter when using PCX Plus. The approved rule also eliminates the Electronic Book Execution rules set forth in PCX Rule 6.76(b)(4) that prevents PCX Market Makers from immediately executing orders against the Consolidated Book. 6 *See* Securities Exchange Act Release No. 50430 (September 23, 2004), 69 FR 58210 (September 29, 2004). 7 The term “Non-OTP Holder Market Maker” includes, but is not limited to, specialists, designated primary market makers, lead market makers, market makers, registered options traders, primary market makers and competitive market makers registered on an exchange other than the PCX. *See* PCX Rule 6.1(b)(35). The Exchange now seeks to delay the operative period of that rule until on or before November 10, 2004 so that the Exchange may give notice to its OTP Holders and OTP Firms of the approval and set up the appropriate technology. The Exchange omitted this request for a brief operative delay in its original proposal. 2. Basis The Exchange believes that its proposal is consistent with Section 6(b) of the Act 8 in general, and furthers the objectives of Sections 6(b)(5) of the Act 9 in particular, because it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanism of a free and open market and a national market system. 8 15 U.S.C. 78f(b). 9 15 U.S.C. 78f(b)(5). 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 proposed rule change will take effect upon filing with the Commission pursuant to Section 19(b)(3)(A)(iii) of the Act 10 and Rule 19b-4(f)(3) thereunder, 11 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. 10 15 U.S.C. 78s(b)(3)(A)(iii). 11 17 CFR 240.19b-4(f)(3). 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-PCX-2004-94 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-2004-94. 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 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-2004-94 and should be submitted on or before November 9, 2004. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 12 12 17 CFR 200.30-3(a)(12). Margaret H. McFarland, Deputy Secretary. [FR Doc. E4-2712 Filed 10-18-04; 8:45 am] BILLING CODE 8010-01-P SMALL BUSINESS ADMINISTRATION [Declaration of Disaster #3632] Commonwealth of Pennsylvania; Amendment #3 In accordance with notices received from the Department of Homeland Security—Federal Emergency Management Agency—effective October 1 and October 8, 2004, the above numbered declaration is hereby amended to establish the incident period for this disaster as beginning September 17, 2004 and continuing through October 1, 2004. This declaration is also amended to include Chester, Crawford, Delaware, Lawrence, Montgomery, Philadelphia, Somerset, and Sullivan counties as disaster areas due to damages caused by Tropical Depression Ivan. In addition, applications for economic injury loans from small businesses located in the contiguous counties of Erie and Warren in the Commonwealth of Pennsylvania; New Castle County in the State of Delaware; Cecil and Garrett Counties in the State of Maryland; Camden and Gloucester Counties in the State of New Jersey; and Ashtabula, Mahoning, and Trumbull Counties in the State of Ohio may be filed until the specified date at the previously designated location. All other counties contiguous to the above named primary counties have previously been declared. The economic injury number assigned to Delaware is 9AF100. All other information remains the same, i.e., the deadline for filing applications for physical damage is November 18, 2004 and for economic injury the deadline is June 20, 2005. (Catalog of Federal Domestic Assistance Program Nos. 59002 and 59008) Dated: October 13, 2004. Cheri L. Cannon, Acting Associate Administrator for Disaster Assistance. [FR Doc. 04-23401 Filed 10-18-04; 8:45 am]

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