[Federal Register Volume 76, Number 12 (Wednesday, January 19, 2011)]
[Notices]
[Pages 3184-3188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-955]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-63706; File No. SR-CBOE-2011-004]


Self-Regulatory Organizations; Chicago Board Options Exchange, 
Incorporated; Notice of Filing and Immediate Effectiveness of Proposed 
Rule Change To Amend Its Fees Schedule and Circular Regarding Trading 
Permit Holder Application and Other Related Fees

January 12, 2011.
    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 January 3, 2011, the Chicago Board Options Exchange, Incorporated 
(``CBOE'' or the ``Exchange'') filed with the Securities and Exchange 
Commission (``Commission'') the proposed rule change as described in 
Items I and II below, which Items have been prepared by CBOE. The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    Chicago Board Options Exchange, Incorporated (``CBOE'' or 
``Exchange'') proposes to amend its Fees Schedule and circular 
regarding Trading Permit Holder application and other related fees 
(``Trading Permit Fee Circular'').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, CBOE 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. CBOE 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
    CBOE Rule 2.20 grants the Exchange the authority to, from time to 
time, fix the fees and charges payable by Trading Permit Holders. CBOE 
is proposing to amend its Fees Schedule and Trading Permit Fee Circular 
to (i) Amend the monthly fee for Market-Maker Trading Permits and 
establish a sliding scale for discounted Market-Maker Trading Permit 
Fees (subject to certain conditions); (ii) establish a VIX Tier 
Appointment; (iii) amend the monthly fee for Floor Broker Trading 
Permits and add an additional fee for Floor Brokers that conduct a 
certain level of activity in VIX; (iv) amend the monthly fee for 
Electronic Access Permits; (v) amend the monthly fees for bandwidth 
packets; (vi) increase the Inactive Nominee Status fee; (vii) increase 
the Fingerprint Processing Fee; and (viii) update the Fees Schedule to 
remove outdated language.
    CBOE Rule 3.1 provides, among other things, that the Exchange may 
issue different types of Trading Permits and determine the fees for 
those Trading Permits. Specifically, under Rule 3.1(a)(iv), the 
Exchange may issue different types of Trading Permits that allow 
holders to trade one or more products authorized for trading on the 
Exchange and to act in one or more trading functions authorized by CBOE 
Rules. The Exchange currently has four types of Trading Permits: (i) 
Market-Maker Trading Permit; (ii) Floor Broker Trading Permit; (iii) 
Electronic Access Permit; and (iv) CBSX Trading Permit. Rule 3.1(a)(v) 
provides, in relevant part, that Trading Permits will be subject to 
such fees and charges as are established by the Exchange from time to 
time pursuant to CBOE Rule 2.20 and the Exchange Fees Schedule.
    In June 2010, and immediately following demutualization, CBOE 
amended its Fees Schedule to establish Trading Permit, tier appointment 
and bandwidth packet fees.\3\ The Fees Schedule established a monthly 
fee of $7,500 for a Market-Maker Trading Permit. At the time the 
Market-Maker Trading Permits were established, CBOE determined to 
discount the fees by 20% for the remainder of 2010. Thus, between July 
2010 and December 2010, CBOE assessed a fee of $6,000 per month for a 
Market-Maker Trading

[[Page 3185]]

Permit. CBOE is proposing to decrease the standard $7,500 monthly fee 
for a Market-Maker Trading Permit to $6,000, which is the same as the 
current level of this fee.
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    \3\ See Securities Exchange Act Release No. 62386 (June 25, 
2010), 75 FR 38566 (July 2, 2010) (SR-CBOE-2010-073) [sic].
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    CBOE is also proposing to establish the following sliding scale for 
Market-Maker Trading Permits subject to the certain conditions:

----------------------------------------------------------------------------------------------------------------
                                                                                                      Amount per
                                                       From                          To               month per
                                                                                                      permit ($)
----------------------------------------------------------------------------------------------------------------
                                           1 permit...................  10 permits.................        6,000
Tier 1...................................  11 permits.................  20 permits.................        4,800
Tier 2...................................  21 or more permits.........  ...........................        3,000
----------------------------------------------------------------------------------------------------------------

    The sliding scale will be available for all Market-Maker Trading 
Permits, held by affiliated Trading Permit Holders and TPH 
organizations, that are used for appointments in any options classes 
other than SPX, VIX, OEX and XEO. Any Market-Maker Trading Permits used 
for these four classes, whether in whole or in part, are excluded from 
this sliding scale and will be priced at $6,000 per month. To qualify 
for the rates set forth in Tiers 1 and 2 in the sliding scale, the 
applicable Trading Permit Holder(s) and/or TPH organization(s) must 
commit to a specific tier that includes a minimum number of eligible 
Market-Maker Trading Permits for each calendar year. To participate in 
the program, a Market-Maker Trading Permit Holder must notify the 
Registration Services Department by January 25th of each year (or the 
preceding business day if the 25th is not a business day) of the tier 
of eligible Market-Maker Trading Permits committed to by the Market-
Maker Trading Permit Holder for that calendar year. Market-Makers are 
not obligated to commit to either tier. However, the discounts will 
apply only to those that do commit to Tier 1 or Tier 2 for the calendar 
year (or remainder of the calendar year as described below). Trading 
Permit Holders that are not eligible for and/or that do not commit to 
Tier 1 or Tier 2 will continue to pay the standard rate for each 
Market-Maker Trading Permit, regardless of the total number of Market-
Maker Trading Permits used.
    If a Trading Permit Holder chooses to commit to either Tier 1 or 
Tier 2, that Trading Permit Holder will be assessed fees for at least 
the minimum number of permits in the commitment tier for the remainder 
of the calendar year.\4\ Even if a Trading Permit Holder no longer 
maintains the minimum number of eligible Trading Permits in the 
committed tier, that Trading Permit Holder is still responsible for the 
minimum payment for that commitment tier for the remainder of the 
calendar year. For example, a Trading Permit Holder that commits to 
eleven eligible permits per month will be subject to a minimum monthly 
access fee of $64,800 (10 x $6,000 plus $4,800 = $64,800) for that 
calendar year. Any additional permits will increase the fee by the 
applicable amount (i.e., if the subject Trading Permit Holder also 
maintains an additional Trading Permit that is associated with an 
appointment in OEX, the monthly access fee will be $70,800).
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    \4\ A Trading Permit Holder may pay more than the tier minimum 
for monthly access fees if the Trading Permit Holder has additional 
Trading Permits that are not eligible for the sliding scale.
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    Trading Permit Holders may also choose to commit to a higher tier 
of the sliding scale for the remainder of a calendar year, during a 
commitment year, if the Trading Permit Holder obtains enough eligible 
Market-Maker Trading Permits and provides written notification to the 
Registration Services Department by the 25th day of the month preceding 
the month in which the higher tier will be effective (or the preceding 
business day if the 25th is not a business day). For example, a Trading 
Permit Holder may provide written notice to commit to Tier 1 effective 
July 1 for the remainder of the calendar year as long as the Trading 
Permit Holder obtains enough eligible Trading Permits and provides 
written notice by June 25th that the Trading Permit Holder would like 
to participate in the sliding scale starting in July for the remainder 
of the calendar year. Even if that Trading Permit Holder subsequently 
falls below the minimum number of eligible Market-Maker Trading Permits 
(in the committed calendar year), for the committed tier, the Trading 
Permit Holder will remain responsible for paying at least the tier 
minimum for the remainder of the calendar year.
    Trading Permit Holders will be responsible to pay for the minimum 
amount of eligible Market-Maker Trading Permits (based on the 
commitment tier) for the calendar year on a monthly basis unless the 
Trading Permit Holder entirely terminates as a Trading Permit Holder 
during the year. If a Trading Permit Holder combines, merges, or is 
acquired during the course of the calendar year, the surviving Trading 
Permit Holder will maintain responsibility for the committed number of 
eligible Market-Maker Trading Permits.
    Section 6(b)(4) of the Securities Exchange Act of 1934 \5\ (the 
``Act'') requires that: ``the rules of the exchange provide for the 
equitable allocation of reasonable dues, fees, and other charges among 
its members and issuers and other persons using its facilities.'' The 
proposed sliding scale is available to all Trading Permit Holders that 
maintain eligible Market-Maker Trading Permits. In essence, CBOE is 
offering a discounted fee in return for a commitment for a designated 
period of time. Trading Permit Holders are not precluded from providing 
notice that they wish to participate in the sliding scale program 
throughout a calendar year as long as such notice is provided by the 
25th day of the preceding month of effectiveness. CBOE is proposing to 
offer this sliding scale as a benefit to those Trading Permit Holders 
that commit in advance. There is no obligation to commit to either Tier 
1 or Tier 2 of the sliding scale. Since Tier 2 requires a commitment of 
twenty-one or greater permits, CBOE believes that Market-Makers quoting 
all multiply listed classes may consider committing in advance to Tier 
2. It requires approximately thirty Trading Permits for a Trading 
Permit Holder to obtain Market-Maker appointments in all multiply-
listed classes at the Exchange.
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    \5\ 15 U.S.C. 78f(b)(4).
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    CBOE Rule 8.3(e) provides that the Exchange may establish one or 
more types of tier appointments. In accordance with CBOE Rule 8.3(e), a 
tier appointment is an appointment to trade one or more options classes 
that must be held by a Market-Maker to be eligible to act as a Market-
Maker in the options class or options classes subject to that 
appointment. CBOE currently maintains a tier appointment for Market-
Maker

[[Page 3186]]

Trading Permit Holders trading in SPX. The current Fees Schedule 
provides that the SPX Tier Appointment fee will be assessed to any 
Market-Maker Trading Permit Holder that either (a) has an SPX Tier 
Appointment at any time during a calendar month; or (b) conducts any 
open outcry transactions in SPX at any time during a calendar month. 
CBOE is proposing to delete this language from the section entitled 
Assessment of Trading Permit and Bandwidth Packet Fees and move this 
language to Section 10(A)(ii) that describes the SPX Tier Appointment. 
In addition, in conjunction with a recent rule filing enabling the 
trading of certain series of options on the Hybrid trading platform 
even though that class generally trades on Hybrid 3.0,\6\ CBOE is 
proposing to clarify the description of the SPX Tier Appointment in 
Section 10(A)(2) [sic] to clarify that the SPX Tier Appointment fee 
will also be assessed to a Market-Maker Trading Permit Holder that 
submits open outcry transactions in SPX or electronic or open outcry 
transactions in SPX Weeklys. SPX options trade on Hybrid 3.0 but CBOE 
has recently listed series of SPX Weeklys that are currently trading on 
Hybrid.
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    \6\ See Securities Exchange Act Release No. 63186 (October 27, 
2010), 75 FR 67417 (November 2, 2010) (SR-CBOE-2010-095).
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    CBOE is now proposing to also establish a VIX Tier Appointment. 
Effective January 3, 2010, a Market-Maker Trading Permit Holder must 
obtain a VIX Tier Appointment to act as a Market-Maker in VIX. Further, 
consistent with the provisions of Rule 8.3(e), each VIX Tier 
Appointment may only be used with one designated Market-Maker Trading 
Permit. The Exchange is proposing that the initial fee for a VIX Tier 
Appointment be set at $1,000 per month.
    VIX Tier Appointment fees are non-refundable and will be assessed 
through the integrated billing system during the first week of the 
following month. The VIX Tier Appointment fee will be assessed to any 
Market-Maker Trading Permit Holder, registered with the Exchange to 
conduct business on the Exchange as a Market-Maker, that either (a) has 
a VIX Tier Appointment at any time during a calendar month; or (b) 
conducts any transactions in VIX at any time during a calendar month. 
VIX Tier Appointments will be renewed automatically for the next month 
unless the Trading Permit Holder submits by the 25th day of the prior 
month (or the preceding business day if the 25th is not a business day) 
a written notification to cancel the VIX Tier Appointment effective at 
or prior to the end of the applicable month.
    The Fees Schedule previously established a monthly fee of $2,000 
for an Electronic Access Permit. At the time the Electronic Access 
Permits were implemented, CBOE determined to discount the fees by 20% 
for the remainder of 2010. Thus, between July 2010 and December 2010, 
CBOE assessed a fee of $1,600 per month for an Electronic Access 
Permit. CBOE is proposing to decrease the $2,000 monthly fee for an 
Electronic Access Permit to $1,600, which is the same as the current 
level of this fee.
    In August 2010, CBOE amended its Fees Schedule and Trading Permit 
Fee Circular to establish a fee scale for the purchase of Order Entry 
Bandwidth Packets under which the cost of an Order Entry Bandwidth 
Packet would decline at certain break points as additional Order Entry 
Bandwidth Packets are purchased.\7\ Specifically, the first through 
fifth Order Entry Bandwidth Packets obtained by a Trading Permit Holder 
cost $2,000 per packet per month, the sixth through eighth Order Entry 
Bandwidth Packets obtained by that Trading Permit Holder would cost 
$1,000 per packet per month, the ninth through thirteenth Order Entry 
Bandwidth Packets obtained by that Trading Permit Holder would cost 
$500 per packet per month, and the fourteenth and each additional Order 
Entry Bandwidth Packet obtained by that Trading Permit Holder would 
cost $250 per packet per month. CBOE also discounted these fees by 20% 
for the remainder of 2010. CBOE is now proposing to decrease the 
monthly fee scale for Order Entry Bandwidth Packets such that the first 
through fifth Order Entry Bandwidth Packets obtained by a Trading 
Permit Holder would cost $1,600 per packet per month, the sixth through 
eighth Order Entry Bandwidth Packets obtained by that Trading Permit 
Holder would cost $800 per packet per month, the ninth through 
thirteenth Order Entry Bandwidth Packets obtained by that Trading 
Permit Holder would cost $400 per packet per month, and the fourteenth 
and each additional Order Entry Bandwidth Packet obtained by that 
Trading Permit Holder would cost $200 per packet per month (which is 
the same as the current level of these fees).
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    \7\ See Securities Exchange Act Release No. 62704 (August 12, 
2010), 75 FR 51132 (August 18, 2010) (SR-CBOE-2010-073).
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    CBOE also amended its Fees Schedule in August 2010 to allow Trading 
Permit Holders to obtain and assign to a particular Sponsored User of 
the Trading Permit Holder one or more Order Entry Bandwidth Packets.\8\ 
In that event, the fees for the assigned bandwidth packet(s) would be 
assessed to the Trading Permit Holder and the bandwidth packet(s) could 
be utilized solely by the Sponsored User (and not by the Trading Permit 
Holder or any other Sponsored User).
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    \8\ Id.
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    Fees for Order Entry Bandwidth Packets assigned to a particular 
Sponsored User are also subject to a fee scale, similar to the fee 
scale in place for the Order Entry Bandwidth Packet assigned to a 
particular Trading Permit Holder. Specifically, the full fee scale for 
Order Entry Bandwidth Packets assigned by a Trading Permit Holder to a 
Sponsored User provides that the first through sixth Order Entry 
Bandwidth Packets assigned to the Sponsored User would cost $2,000 per 
packet per month, the seventh through ninth Order Entry Bandwidth 
Packets assigned to that Sponsored User would cost $1,000 per packet 
per month, the tenth through fourteenth Order Entry Bandwidth Packets 
assigned to that Sponsored User would cost $500 per packet per month, 
and the fifteenth and each additional Order Entry Bandwidth Packet 
assigned to that Sponsored User would cost $250 per packet per month. 
CBOE also discounted these fees by 20% for the remainder of 2010. CBOE 
is now proposing to decrease the monthly fee scale for Order Entry 
Bandwidth Packets assigned by a Trading Permit Holder to a particular 
Sponsored User such that the first through sixth Order Entry Bandwidth 
Packets assigned to the Sponsored User would cost $1,600 per packet per 
month, the seventh through ninth Order Entry Bandwidth Packets assigned 
to that Sponsored User would cost $800 per packet per month, the tenth 
through fourteenth Order Entry Bandwidth Packets assigned to that 
Sponsored User would cost $400 per packet per month, and the fifteenth 
and each additional Order Entry Bandwidth Packet assigned to that 
Sponsored User would cost $200 per packet per month (which is the same 
as the current level of these fees).
    CBOE is also proposing to make two technical changes to Section 10 
of the CBOE Fees Schedule. First, CBOE is proposing to modify the 
numbering of the section setting forth the Trading Permit and tier 
appointment fees and the accompanying descriptions to reflect the 
addition of the VIX Tier Appointment. In addition, CBOE is proposing to 
remove references throughout Section 10 of the Fees Schedule to Trading 
Permit, tier

[[Page 3187]]

appointment and bandwidth packet fees regarding the assessment of these 
fees in 2010 as this language is outdated and no longer necessary.
    CBOE is also proposing to make two changes to Section 11 of the 
CBOE Fees Schedule. First, CBOE is proposing to increase the Inactive 
Nominee Status fee from $750 to $900. This fee is payable quarterly by 
a TPH organization for each inactive nominee status that the TPH 
organization wishes to maintain. (e.g., a TPH organization firm 
desiring the ability to have three parking spaces within which to 
designate inactive nominees would pay this fee at the beginning of each 
quarter for each of the three parking spaces). In addition, CBOE is 
proposing to increase the Fingerprint Processing Fee from $50 to $60. 
This fee is assessed for employees of Trading Permit Holders and any 
other individual requesting the Exchange to process a fingerprint, 
electronically or otherwise, excluding fingerprint requirements for 
Individual Applicants, individuals applying for Renewal/Change of 
Status, and Associated Persons. CBOE is proposing to increase these 
fees to account for an increase in resources required to process 
inactive nominee information, fingerprints, and related requests. The 
Inactive Nominee Status Fee and the Fingerprint Processing Fee have not 
been increased in three years.\9\
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    \9\ See Securities Exchange Act Release No. 57191 (January 24, 
2008), 73 FR 5611 (January 30, 2008) (SR-CBOE-2007-150).
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    In addition to the proposed changes to the Fees Schedule described 
above, CBOE is proposing to revise its regulatory circular that sets 
forth the existing Trading Permit Holder application and other related 
fees. The Exchange proposes to revise this circular to incorporate the 
changes to Sections 10 and 11 of the CBOE Fees Schedule that are 
described above, as well as to clarify the description of the 
Fingerprint Processing Fee to provide that only those associated 
persons that are subject to the Associated Person Application [sic] Fee 
are not subject to the Fingerprint Processing Fee. The proposed changes 
to the circular are included as Exhibit 2 to the Form 19b-4.
    2. Statutory Basis
    The proposed rule change will treat similarly situated Trading 
Permit Holders in the same manner. Specifically, CBOE shall assess the 
same base Trading Permit, tier appointment and bandwidth packet fees to 
all Trading Permit Holders based on the type of tier appointment 
requested and type and number of Trading Permit(s) and bandwidth 
packet(s) requested. All Trading Permit Holders may elect to receive a 
discounted price if the Trading Permit Holder commits in advance to a 
minimum number of eligible Market-Maker Trading Permits for a calendar 
year. Trading Permit Holders that do not wish to commit in advance to a 
minimum number of eligible Trading Permits for a calendar year will be 
subject to the standard rate for each Market-Maker Trading Permit. 
Further, CBOE shall assess the Fingerprint Processing Fee and Inactive 
Nominee Status Fee in the same manner to all Trading Permit Holders. 
For the reasons stated in the purpose section, CBOE is also proposing 
to add a VIX Tier Appointment and assess a $1,000 monthly fee to any 
Floor Broker Trading Permit Holder (a) that executes more than 20,000 
VIX contracts during the month and (b) whose aggregate VIX executed 
contracts during the month comprise more than 30% of the Floor Broker 
Trading Permit Holder's exchange-wide total executed contracts. 
Accordingly, the Exchange believes that the proposed rule change is 
consistent with Section 6(b) of the Act,\10\ in general, and furthers 
the objectives of Section 6(b)(4) of the Act \11\ in particular, in 
that it is designed to provide for the equitable allocation of 
reasonable dues, fees, and other charges among persons using its 
facilities for the reasons described above.
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    \10\ 15 U.S.C. 78f(b).
    \11\ 15 U.S.C. 78f(b)(4).
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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 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

    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 foregoing rule change has become effective pursuant to Section 
19(b)(3)(A) of the Act \12\ and subparagraph (f)(2) of Rule 19b-4 \13\ 
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.
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    \12\ 15 U.S.C. 78s(b)(3)(A).
    \13\ 17 CFR 240.19b-4(f)(2).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

    <bullet> Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
    <bullet> Send an e-mail to <a href="/cdn-cgi/l/email-protection#8cfef9e0e9a1efe3e1e1e9e2f8ffccffe9efa2ebe3fa"><span class="__cf_email__" data-cfemail="1b696e777e36787476767e756f685b687e78357c746d">[email protected]</span></a>. Please include 
File Number SR-CBOE-2011-004 on the subject line.

Paper Comments

    <bullet> 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-2011-004. 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 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 such filing also will be available for 
inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File No. SR-CBOE-2011-004 and should be 
submitted on or before February 9, 2011.


[[Page 3188]]


    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-955 Filed 1-18-11; 8:45 am]
BILLING CODE 8011-01-P


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