518 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3See CBSX Fees Schedule, Section 1. 

4See SR–CBOE–2011–121. 

proposed consent decree may also be 

obtained by mail from the Consent 

Decree Library, P.O. Box 7611, U.S. 

Department of Justice, Washington, DC 

20044–7611, or by faxing or emailing a 

request to ‘‘Consent Decree Copy’’ 

(EESCDCopy.ENRD@usdoj.gov), fax no. 

(202) 514–0097, phone confirmation 

number (202) 514–5271. If requesting a 

copy from the Consent Decree Library 

by mail, please enclose a check in the 

amount of $21.50 (25 cents per page 

reproduction cost) payable to the U.S. 

Treasury or, if requesting by email or 

fax, please forward a check in that 

amount to the Consent Decree Library at 

the address given above. 

Robert Brook, 

Assistant Chief, Environmental Enforcement 

Section, Environment and Natural Resources 

Division. 

[FR Doc. 2011–33821 Filed 1–4–12; 8:45 am] 

BILLING CODE 4410–15–P 

DEPARTMENT OF JUSTICE 

Notice of Lodging of the Consent 

Decree Under the Resource 

Conservation and Recovery Act and 

the Clean Water Act 

Notice is hereby given that on 

December 22, 2011, a proposed Consent 

Decree in United States v. County of 

Erie (‘‘Erie’’), Civil Action No. 1:11–cv– 

01083 (WMS), was lodged with the 

United States Court for the Western 

District of New York. 

The proposed Consent Decree 

resolves Erie’s Resource Conservation 

and Recovery Act (‘‘RCRA’’) violations 

stemming from its failure to meet 

cathodic protection requirements, 

release detection requirements, and 

other record-keeping requirements in to 

relation to its Underground Storage 

Tanks (‘‘USTs’’) at sixteen facilities 

throughout the county. The Consent 

Decree also resolves Erie’s Clean Water 

Act (‘‘CWA’’) violations stemming from 

its failure to prepare and implement 

Spill Prevention Control and 

Countermeasure plans (‘‘SPCC plans’’) 

at eleven facilities throughout the 

county that utilize applicable above 

ground storage tanks. Under the terms of 

the Consent Decree, Erie will pay a 

$275,000 penalty, prepare and 

implement eleven SPCC plans, and 

undertake a full RCRA audit to certify 

to the United States that it is in 

complete compliance with all RCRA 

requirements at the thirty-six facilities it 

owns or operates that utilize USTs. 

The Department of Justice will receive 

for a period of thirty (30) days from the 

date of this publication comments 

relating to the Consent Decree. 

Comments should be addressed to the 

Assistant Attorney General, 

Environment and Natural Resources 

Division, and either emailed to 

pubcomment-ees.enrd@usdoj.gov or 

mailed to P.O. Box 7611, U.S. 

Department of Justice, Washington, DC 

20044–7611, and should refer to the 

matter as United States v. County of 

Erie, D.J. Ref. 90–7–1–09728. 

During the public comment period, 

the Consent Decree may also be 

examined on the following Department 

of Justice Web site, http://www.usdoj.

gov/enrd/Consent_Decrees.html. A copy 

of the Consent Decree may also be 

obtained by mail from the Consent 

Decree Library, P.O. Box 7611, U.S. 

Department of Justice, Washington, DC 

20044–7611 or by faxing or emailing a 

request to ‘‘Consent Decree Copy’’ 

(EESCDCopy.ENRD@usdoj.gov), fax no. 

(202) 514–0097, phone confirmation 

number (202) 514–5271. If requesting a 

copy from the Consent Decree Library 

by mail, please enclose a check in the 

amount of $8.75 (25 cents per page 

reproduction cost) payable to the U.S. 

Treasury or, if requesting by email or 

fax, forward a check in that amount to 

the Consent Decree Library at the 

address given above. 

Ronald G. Gluck, 

Assistant Section Chief, Environmental 

Enforcement Section, Environment and 

Natural Resource Division. 

[FR Doc. 2011–33805 Filed 1–4–12; 8:45 am] 

BILLING CODE 4410–15–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–66067; File No. SR–CBOE– 

2011–127] 

Self-Regulatory Organizations; 

Chicago Board Options Exchange, 

Incorporated; Notice of Filing and 

Immediate Effectiveness of a Proposed 

Rule Change To Amend the CBOE 

Stock Exchange Fees Schedule 

December 29, 2011. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’),1 and Rule 19b–4 thereunder,2

notice is hereby given that on December 

20, 2011, Chicago Board Options 

Exchange, Incorporated (the ‘‘Exchange’’ 

or ‘‘CBOE’’) 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 self-regulatory 

organization. The Commission is 

publishing this notice to solicit 

comments on the proposed rule change 

from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to amend the 

CBOE Stock Exchange (‘‘CBSX’’) Fees 

Schedule. The text of the proposed rule 

change is available on the Exchange’s 

Web site (http://www.cboe.org/legal), at 

the Exchange’s Office of the Secretary, 

and at the Commission’s Public 

Reference Room. 

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 those 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 parts of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

CBSX proposes to amend its 

CBOEdirect Connectivity Charges. 

Currently, the CBSX Fees Schedule 

applies CBOE’s CBOEdirect 

Connectivity Charges to CBSX users.3

However, CBOE recently filed a 

proposed rule change to increase its 

CBOEdirect Connectivity Charges.4

Because CBSX does not desire to adopt 

all of the proposed changes to CBOE’s 

CBOEdirect Connectivity Charges, CBSX 

hereby proposes to amend its Fees 

Schedule to adopt its own CBOEdirect 

Connectivity Charges. 

Currently, CBSX assesses a monthly 

Network Access Port fee of $250 for 

regular access and $500 for Sponsored 

User access, as those are the amounts of 

the Network Access Port fees on CBOE. 

In SR–CBOE–2011–121, CBOE proposes 

to increase the fees charged for access to 

a Network Access Port to $500 per 

month for regular access and $1000 per 

month for Sponsored User access. CBSX 

desires to keep the Network Access Port 

fee rates at their current levels and not 


emcdonald on DSK5VPTVN1PROD with NOTICES
Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices 519 

5See SR–CBOE–2011–121. 

6See ISE Schedule of Fees, page 8. The 

Commission notes that the ISE fees cited by the 

Exchange were modified as of December 1, 2011. As 

of December 23, 2011, ISE assesses a FIX fee of 

$1000 for a minimum of two monthly login IDs and 

does not have a separate fee for a higher-volume 

user. See Securities Exchange Act Release No. 

65916 (December 8, 2011), 76 FR 77881 (December 

14, 2011) (SR–ISE–2011–80). 

7See NOM Rule 7053. 

8 15 U.S.C. 78f(b). 

9 15 U.S.C. 78f(b)(4). 

10See ISE Schedule of Fees, page 8 and NOM 

Rule 7053 and also SR–CBOE–2011–121. 

11 15 U.S.C. 78s(b)(3)(A). 

12 17 CFR 240.19b–4(f)(2). 13 17 CFR 200.30–3(a)(12). 

increase them to the levels proposed by 

CBOE. 

CBOE also proposes to increase their 

monthly CMI and FIX charges from $80 

to $500 per month for regular access and 

$160 to $1000 per month for Sponsored 

User access.5 CBSX does not desire to 

adopt these increases. Instead, CBSX 

proposes to adopt more moderate 

increases, from $80 to $100 for regular 

access and $160 to $200 for Sponsored 

User access. Sizable investment [sic] 

were recently made to upgrade the 

equipment involved in the CMI Client 

Application Servers and FIX Ports, and 

thereby increasing these fees will help 

recoup such costs and maintain such 

equipment in the future. Moreover, 

following these changes, CBSX 

connectivity costs will still be lower 

than those assessed for connectivity at 

other exchanges. Along with the 

proposed CBOE changes, ISE assesses a 

FIX fee of $1200 for a minimum of two 

monthly login IDs (so, $600 for one), or 

a fee of $2,400 for a higher-volume 

user.6 The NASDAQ Stock Market LLC’s 

Options Market (‘‘NOM’’) assesses a fee 

of $500 per FIX port per month, as 

well.7 Regarding the Sponsored User 

fees, the Exchange currently charges a 

different rate for regular access and 

Sponsored User access, and merely 

proposes to increase the rates in equal 

proportion. 

The proposed changes are to take 

effect January 1, 2012. 

2. Basis 

The proposed rule change is 

consistent with Section 6(b) of the Act,8

in general, and furthers the objectives of 

Section 6(b)(4) 9 of the Act in particular, 

in that it is designed to provide for the 

equitable allocation of reasonable dues, 

fees, and other charges among CBOE 

Trading Permit Holders and other 

persons using Exchange facilities. The 

proposed ‘‘change’’ to add the Network 

Access Port fees into the CBSX Fees 

Schedule is reasonable because the 

amounts of the fees are not changing. 

This proposed ‘‘change’’ is equitable 

and not unfairly discriminatory because 

the fees, as before, will be assessed to all 

market participants, and in the same 

amounts as previously assessed. 

The proposed changes to increase the 

fees assessed for CMI Login IDs and FIX 

Login IDs are also reasonable because 

the amounts of such fees are 

significantly lower than those assessed 

on other exchanges,10 and because such 

increases will assist in recouping 

expenditures recently made to upgrade 

the CBOEdirect connectivity equipment. 

This proposed change is equitable and 

not unfairly discriminatory because the 

fees, as before, will be assessed to all 

market participants. Assessing higher 

fees for Sponsored Users is equitable 

and not unfairly discriminatory because 

Sponsored Users are able to access the 

Exchange and use the equipment 

provided without purchasing a trading 

permit. As such, Trading Permit Holders 

who have purchased a trading permit 

will have a higher level of commitment 

to transacting business on the Exchange 

and using Exchange facilities than 

Sponsored Users. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

CBOE does not believe that the 

proposed rule change will impose any 

burden on competition not necessary or 

appropriate in furtherance of the 

purposes of the Act. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

No written comments were solicited 

or received with respect to the proposed 

rule change. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

The proposed rule change is 

designated by the Exchange as 

establishing or changing a due, fee, or 

other charge, thereby qualifying for 

effectiveness on filing pursuant to 

Section 19(b)(3)(A) of the Act 11 and 

subparagraph (f)(2) of Rule 19b–4 12

thereunder. At any time within 60 days 

of the filing of the proposed rule change, 

the Commission summarily may 

temporarily suspend 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. 

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 email to rulecomments@sec.gov. Please include File 

Number SR–CBOE–2011–127 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

100 F Street NE., Washington, DC 

20549–1090. 

All submissions should refer to File 

Number SR–CBOE–2011–127. This file 

number should be included on the 

subject line if email 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 Web site viewing and 

printing in the Commission’s Public 

Reference Room, 100 F Street NE., 

Washington, DC 20549, on official 

business days between the hours of 

10 a.m. and 3 p.m. Copies of the filing 

also will be available for inspection and 

copying at the principal office of the 

Exchange. All comments received will 

be posted without change; the 

Commission does not edit personal 

identifying information from 

submissions. You should submit only 

information that you wish to make 

available publicly. All submissions 

should refer to File Number SR–CBOE– 

2011–127 and should be submitted on 

or before January 26, 2012. 


emcdonald on DSK5VPTVN1PROD with NOTICES
520 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3Securities Exchange Act Release No. 65483 

(October 4, 2011), 76 FR 62981 (October 11, 2011). 

4Securities Exchange Act Release No. 65807 

(September 21, 2011), 76 FR 73752 (November 29, 

2011). 

5The staff notes that on August 17, 2011, the 

Commission issued an Order granting approval to 

this proposed rule change. See Securities Exchange 

Act Release No. 34–65149, 76 FR 52729 (August 23, 

2011). 

6The staff notes that OCC is also adding a 

definition of ‘‘relative performance index’’ to 

Section 1, which will be defined as an index 

designed to measure the relative performance of a 

reference security or reference index in relation to 

another reference security or reference index. 

7See Securities Exchange Act Release No. 34– 

62290, 75 FR 35861 (June 23, 2010); CFTC Order 

Exempting the Trading and Clearing of Certain 

Products Related to the CBOE Gold ETF Volatility 

Index and Similar Products, 75 FR 81977 

(December 29, 2010). 

8The staff notes that Amendment Nos. 2 and 3 

provide that the interpretation will not include 

options on relative performance indexes for which 

a reference security is an exchange-traded fund 

designed to measure the return of a commodity 

other than gold or silver. 

9 15 U.S.C. 78q–1(b)(3)(F). 

10 15 U.S.C. 78q–1. 

11 15 U.S.C. 78s(b)(2). 

12 In approving this proposed rule change the 

Commission has considered the proposed rule’s 

impact of efficiency, competition, and capital 

formation. See 15 U.S.C. 78c(f). 

13 17 CFR 200.30–3(a)(12). 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.13

Kevin M. O’Neill, 

Deputy Secretary. 

[FR Doc. 2011–33789 Filed 1–4–12; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–66070; File No. SR–OCC– 

2011–13] 

Self-Regulatory Organizations; 

Options Clearing Corporation; Order 

Approving Proposed Rule Change, as 

Modified by Amendments No. 1, No. 2, 

and No. 3, Relating to Relative 

Performance Indexes 

December 29, 2011. 

I. Introduction 

On September 21, 2011, the Options 

Clearing Corporation (‘‘OCC’’) filed with 

the Securities and Exchange 

Commission (‘‘Commission’’) the 

proposed rule change SR–OCC–2011–13 

pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Act’’) 1 and Rule 19b–4 thereunder.2

On October 4, 2011, OCC filed 

Amendment No. 1 to the proposed rule 

change. The proposed rule change, as 

modified by Amendment No. 1, was 

published for comment in the Federal 

Register on October 11, 2011.3 On 

November 17, 2011, OCC filed 

Amendment No. 2 and Amendment No. 

3 to the proposed rule change. The 

proposed rule change, as modified by 

Amendments No. 1, No. 2 and No. 3 was 

published in the Federal Register on 

November 29, 2011.4 The Commission 

received no comment letters on the 

proposed rule change, as modified by 

Amendments No. 1, No. 2, and No. 3. 

This order approves the proposed rule 

change as modified by Amendments No. 

1, No. 2, and No. 3. 

II. Description 

The purpose of the proposed rule 

change is to remove any potential cloud 

on the jurisdictional status of relative 

performance indexes. NASDAQ OMX 

PHLX has proposed to trade options on 

indexes (‘‘Alpha Index Options’’) that 

measure the relative total returns of a 

stock or exchange-traded fund (‘‘ETF’’) 

against another stock or ETF, including 

where one of the reference ETFs 

measured by the index is a gold- or 

silver-based ETF.5 Generally, OCC 

believes that a relative performance 

index should be considered to be an 

index of securities since the 

components of a relative performance 

index are ETFs or other securities. 

However, OCC would like to confirm 

the jurisdictional treatment of relative 

performance indexes in situations in 

which a reference security of an 

underlying relative performance index 

is an ETF designed to measure the 

return of gold or silver. To accomplish 

this purpose, OCC is adding an 

interpretation following Section 2 in 

Article XVII of its By-Laws,6 clarifying 

that OCC will clear and treat as 

securities any relative performance 

index. The Commission and Commodity 

Futures Trading Commission (‘‘CFTC’’) 

have previously approved changes to 

OCC’s By-Laws clarifying that options 

on the CBOE Gold ETF Volatility Index 

will be cleared and treated as 

securities.7

In its capacity as a ‘‘derivatives 

clearing organization’’ registered as such 

with the CFTC, OCC filed the proposed 

rule change for prior approval by the 

CFTC pursuant to provisions of the 

Commodity Exchange Act (the ‘‘CEA’’) 

in order to foreclose any potential 

liability under the CEA based on an 

argument that the clearing by OCC of 

such options as securities options 

constitutes a violation of the CEA. OCC 

amended the rule filing at the request of 

the CFTC to clarify that OCC will clear 

and treat as options on securities any 

options on relative performance indexes 

for which a reference security is an 

exchange-traded fund designed to 

measure the return of gold or silver.8

III. Discussion 

Section 17A(b)(3)(F) of the Act 

requires, among other things, that the 

rules of a clearing agency be designed to 

promote the prompt and accurate 

clearance and settlement of securities 

transactions and derivative 

transactions.9 The proposed rule change 

is similar to a proposed rule change the 

Commission approved previously with 

respect to the jurisdictional status CBOE 

Gold ETF Volatility Index and clarifies 

that OCC will clear and treat as 

securities any relative performance 

index, including in situations in which 

one of the reference securities of a 

relative performance index is an ETF 

designed to measure the return of gold 

or silver. Any uncertainty regarding the 

jurisdictional status of a product could 

presumably interfere with OCC’s ability 

to provide clearance and settlement 

services with respect to the product. 

The proposed rule change, by allowing 

OCC to clarify in its rules the treatment 

of a relative performance index, should 

facilitate the clearance and settlement of 

such products and, thus, should help 

promote the prompt and accurate 

clearance and settlement of securities 

transactions and of derivative 

transactions. 

IV. Conclusion 

On the basis of the foregoing, the 

Commission finds that the proposal is 

consistent with the requirements of the 

Act and in particular with the 

requirements of Section 17A of the 

Act 10 and the rules and regulations 

thereunder. 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,11 that the 

proposed rule change, as modified by 

Amendments No. 1, No. 2, and No. 3, 

(File No. SR–OCC–2011–13) be, and 

hereby is, approved.12

For the Commission by the Division of 

Trading and Markets, pursuant to delegated 

authority.13

Kevin M. O’Neill, 

Deputy Secretary. 

[FR Doc. 2011–33795 Filed 1–4–12; 8:45 am] 

BILLING CODE 8011–01–P 


emcdonald on DSK5VPTVN1PROD with NOTICES