[Federal Register Volume 75, Number 223 (Friday, November 19, 2010)]
[Notices]
[Pages 70957-70961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29160]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-63314; File No. SR-CBOE-2010-084]


Self-Regulatory Organizations; Chicago Board Options Exchange, 
Incorporated; Order Approving Proposed Rule Change Regarding 
Registration and Qualification Requirements for Associated Persons

November 12, 2010.

I. Introduction

    On September 10, 2010, the Chicago Board Options Exchange, 
Incorporated (``Exchange'' or ``CBOE'') filed with the Securities and 
Exchange Commission (``Commission''), pursuant to Section 19(b)(1) of 
the Securities Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 
thereunder,\2\ a proposed rule change to apply its registration and 
qualification requirements to all of its members. The proposed rule 
change was published for comment in the Federal Register on September 
28, 2010.\3\ The Commission received two comment letters on the 
proposal.\4\ This order approves the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 62977 (September 22, 
2010), 75 FR 59773 (``Notice'').
    \4\ See letter from Frank Vivirito, Chief Compliance Officer, XR 
Securities LLC, to Elizabeth M. Murphy, Secretary, Commission, dated 
October 14, 2010 (``XR Securities Letter'') and letter from J. Micah 
Glick, Chief Compliance Officer, Cutler Group LP, to Elizabeth M. 
Murphy, Secretary, Commission, dated October 22, 2010 (``Cutler 
Letter'').
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II. Background

    Currently, registration, examination, and continuing education 
requirements for associated persons of trading permit holder \5\ 
organizations (``TPH organizations'') that conduct a public customer 
business are in Chapter IX, Doing Business with the Public, of CBOE's 
rules.\6\ The associated persons of TPH organizations register with the 
Exchange via the Uniform Application for Securities Industry 
Registration or Transfer (``Form U4'') through the Financial Industry 
Regulatory Authority's (``FINRA'') Central Registration Depository 
System (``WebCRD''), and must pass the General Securities 
Representative examination (``Series 7'') to function as 
representatives; if acting as options principals engaged in the 
supervision of options sales practices, they must also pass the 
Registered Options Principal

[[Page 70958]]

examination (``Series 4'') or the General Securities Sales Supervisor 
examination (``Series 9/10'').
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    \5\ Section 1.1 of CBOE's By-Laws provides: ``The term `Trading 
Permit Holder' means any individual, corporation, partnership, 
limited liability company or other entity authorized by the rules 
that holds a Trading Permit. If a Trading Permit Holder is an 
individual, the Trading Permit Holder may also be referred to as an 
`individual Trading Permit Holder.' If a Trading Permit Holder is 
not an individual, the Trading Permit Holder may also be referred to 
as a `TPH organization.' A Trading Permit Holder is a `member' 
solely for purposes of the Act; however, one's status as a Trading 
Permit Holder does not confer on that Person any ownership interest 
in the Exchange.'' See Section 3(a)(3)(A) of the Act which defines 
member of an exchange.
    \6\ Before CBOE demutualized, Rule 3.1(a) required every 
individual member or member organization to have as the principal 
purpose of its membership the conduct of a public securities 
business.
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    Rule 3.6A, Qualification and Registration of Certain Associated 
Persons, sets forth the requirement for each individual TPH or TPH 
organization subject to Rule 15c3-1 under the Act to have a FINOP 
(Limited Principal--Financial and Operations).\7\ Rule 3.6A also 
references the registration requirements set forth in Chapter IX of 
CBOE's Rulebook for associated persons of TPH organizations that 
conduct a public customer business.\8\
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    \7\ The Exchange is proposing to apply the existing FINOP 
requirement in Rule 3.6A to all TPH organizations.
    \8\ CBOE has represented that CBOE Stock Exchange (``CBSX'') 
firms solely engage in proprietary trading. Chapter IX of CBOE's 
Rulebook pertains toTPHs that conduct a public customer business and 
is not included in Appendix A, Applicability of Rules of the 
Exchange, to the CBSX rules, which lists the CBOE rules that apply 
to CBSX TPHs. However, it is the Commission's understanding that it 
is CBOE's intent to apply the rules of Chapter IX that are 
referenced in Rule 3.6A to CBSX TPHs.
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    Rule 9.3A, Continuing Education for Registered Persons, applies to 
registered persons of TPHs and TPH organizations that conduct business 
with the public and sets out CBOE's continuing education requirements.

III. Description of the Proposal

    CBOE proposes to amend its rules and the rules of the CBSX 
regarding registration, qualification, and continuing education 
requirements for individual TPHs and associated persons \9\ of TPHs. 
CBOE is amending its rules to make them substantially similar to the 
registration, examination and continuing education requirements of 
FINRA. Specifically, CBOE proposes to require all individual TPHs and 
TPH associated persons, regardless of whether they conduct a public 
customer or proprietary securities business, to register, qualify and 
comply with continuing education requirements.\10\
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    \9\ Section 3(a)(18) of the Act defines an associated person of 
a broker or dealer as ``any partner, officer, director, or branch 
manager of such broker or dealer (or any person occupying a similar 
status or performing similar functions), any person directly or 
indirectly controlling, controlled by, or under common control with 
such broker or dealer, or any employee of such broker or dealer, 
except that any person associated with a broker or dealer whose 
functions are solely clerical or ministerial shall not be included 
in the meaning of such term for purposes of section 15(b).'' 15 
U.S.C. 78c(a)(18).
    \10\ It is the Commission's understanding that, with these 
changes to CBOE's rules, all associated persons involved in the 
securities business of a firm that does business on the CBOE will 
have to register, pass a qualification examination and comply with 
continuing education requirements.
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    CBOE and CBSX will require all individual TPHs and individual 
associated persons \11\ not already registered in WebCRD to register 
under Rule 3.6A within 60 days of the date of this Order (January 11, 
2011) and to pass a qualification examination. CBOE is developing an 
alternative to the Series 7 examination that is specifically tailored 
toward individual TPHs and associated persons of TPHs that are engaged 
in proprietary trading. CBOE has represented that within six months of 
the date of this Order it will have completed the development of this 
qualification examination \12\ and will file the examination with the 
Commission. All individual TPHs and individual associated persons must 
take and pass the new examination, as applicable, no later than August 
12, 2011.
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    \11\ Associated persons of CBOE TPHs include both individuals 
and non-natural persons.
    \12\ CBOE has represented that it is developing a principal 
examination tailored to sole proprietors, officers, partners, and 
directors, individual TPHs or individual associated persons who are 
engaged in the supervision or monitoring of proprietary trading, 
market-making, or brokerage activities, and/or anyone who is engaged 
in the supervision or training of those engaged in proprietary 
trading, market-making or brokerage activities. Until this 
examination is complete and filed with the Commission, these 
associated persons must pass the General Securities Principal 
examination (``Series 24'').
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    Rule 3.6A(c) will require that each TPH and TPH organization 
designate on Schedule A of Form BD a Chief Compliance Officer (``CCO'') 
\13\ who must register with CBOE using Form U4 and pass the Compliance 
Official examination (``Series 14'').\14\ CBOE has represented to the 
Commission that it has asked FINRA to enable this category of 
registration for CBOE and to make the Series 14 examination available 
to CCOs of CBOE and CBSX TPHs. CBOE is also proposing to allow a 
limited exemption from the requirement to pass the Series 14.\15\
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    \13\ CBOE indicated that it did not want to use the term 
``principal'' in Rule 3.6A to denote associated persons of a member 
who are actively engaged in the management of the member's 
investment banking or securities business, including supervision, 
solicitation, conduct of business or the training of persons 
associated with a member for any of these functions.
    Under CBOE's proposed rules anyone functioning as a principal 
must register as such with the Exchange via a Form U4 through 
FINRA's WebCRD. CBOE did not want to use the term principal in Rule 
3.6A to refer to these associated persons because it wanted to avoid 
creating confusion for its TPHs that have Registered Options 
Principals. Through this filing, CBOE is essentially extending the 
Registered Options Principal category and requirements (though not 
the same examinations) to those associated persons in a supervisory 
function whose firms do not conduct business with the public. 
Ultimately, the Commission expects CBOE to eliminate the distinction 
in its rules relating to doing business with the public. 
Hereinafter, the Commission will refer to such persons as 
principals.
    \14\ See NASD Rule 1022(a)(1)(c).
    \15\ See proposed Rule 3.6A(c).
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    Furthermore, the Exchange is proposing to add Interpretations and 
Policies .07 to Rule 3.6A requiring the registration and the successful 
completion of a heightened qualification examination by every 
individual acting in any of the following capacities: (i) Officer; (ii) 
partner; (iii) director; (iv) supervisor of proprietary trading, 
market-making or brokerage activities; and/or (v) supervisor of those 
engaged in proprietary trading, market-making or brokerage activities 
with respect to those activities. Thus, all individuals who engage in 
supervisory functions at the TPH organization's securities business, or 
who oversee associated persons of TPHs, must register and pass the 
relevant principal examination.\16\ The rule also requires each TPH 
organization to have at least two of the above listed individuals 
registered as principals and subject to the relevant principal 
examination requirement. The Exchange may waive the requirement to have 
two principals registered if a TPH organization conclusively 
demonstrates that only one principal should be required to register 
(such as a single member liability company).\17\
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    \16\ The Commission understands that this will be either an 
appropriate examination developed by CBOE and filed with the 
Commission or the Series 24.
    \17\ The Commission expects this waiver to be used in very 
limited circumstances.
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    A TPH organization that is involved solely in proprietary trading 
\18\ and has 25 or fewer associated persons would only be required to 
have one principal registered and subject to a heightened qualification 
examination under this section.\19\
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    \18\ Interpretations and Policies .07 to Rule 3.6A defines 
proprietary trading.
    \19\ See proposed Interpretations and Policies .07 to Rule 3.6A. 
The Commission understands that this examination will be the Series 
24 until CBOE has completed and filed with the Commission its own 
examination for principals of proprietary trading firms. This 
requirement is substantially similar to NASDAQ Rule 1021(e)(1).
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    Rule 3.6A(a)(1) provides that a TPH or TPH organization shall not 
maintain a registration with the Exchange for any person: (1) Who is no 
longer active in the TPH or TPH organization's securities business; (2) 
who is no longer functioning in the registered capacity; or (3) where 
the sole purpose is to avoid an examination requirement. A TPH or TPH 
organization cannot register any person where there is no intent to 
employ that person in the TPH or TPH organization's securities 
business. However, a TPH or TPH organization may maintain or make 
application for

[[Page 70959]]

the registration of an individual who performs legal, compliance, 
internal audit, back-office-operations, or similar responsibilities for 
the TPH or TPH organization, or a person who performs administrative 
support functions for registered personnel, or a person engaged in the 
securities business of a foreign securities affiliate or subsidiary of 
the TPH or TPH organization.\20\
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    \20\ This rule is substantially similar to NASD Rule 1021(a).
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    The Exchange is also proposing to add Rule 3.6A(a)(2) to identify 
several categories of individual TPHs and individual associated persons 
who are exempt from the new registration requirements. The categories 
are: (i) Individual associated persons functioning solely and 
exclusively in a clerical or ministerial capacity; (ii) individual TPHs 
and individual associated persons who are not actively engaged in the 
securities business, (iii) individual TPHs and individual associated 
persons functioning solely and exclusively to meet a TPH or TPH 
organization's need for nominal corporate officers or for capital 
participation; and (iv) individual associated persons whose functions 
are solely and exclusively related to transactions in commodities, 
transactions in security futures and/or effecting transactions on the 
floor of another national securities exchange and who are registered as 
floor members with such exchange. \21\
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    \21\ This rule is substantially similar to NASD Rule 1060.
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    Rule 3.6A(e) addresses lapses in registration \22\ and 
Interpretation and Policies .05 thereto would permit CBOE to waive the 
examination requirement in limited circumstances.\23\ In addition, the 
Exchange is making certain technical and non-substantive changes to its 
rules.\24\
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    \22\ This rule is substantially similar to NASD rules 1021(c) 
and 1031(c) regarding lapses.
    \23\ This rule is substantially similar to NASD Rule 1070 
regarding waivers.
    \24\ See Notice at pp. 8-9.
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    The Exchange states that individual associated persons, including 
Registered Options Principals and Registered Representatives, continue 
to be subject to the registration, examination and continuing education 
requirements of Chapter IX of CBOE's rules, which apply to firms 
conducting a public customer business.\25\ Additionally, any TPH or TPH 
organization that ends the employment of an individual required to 
register under Rule 3.6A must comply with the requirements in Chapter 
IX of CBOE's rules.
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    \25\ See supra note 8.
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    The Exchange proposes to require individual TPHs and individual 
associated persons whose activities are limited solely to the 
transaction of business on the floor with TPHs or registered broker-
dealers to fulfill continuing education requirements.\26\
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    \26\ Interpretations and Policies .01 to Rule 9.3A currently 
excludes these persons from the continuing education requirements 
set forth in Rule 9.3A. Proposed Interpretations and Policies .04 to 
Rule 3.6A states that all persons required to register are subject 
to CBOE's continuing education requirements.
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IV. Comment Letters

    The Commission received two comment letters on the proposed rule 
change.\27\ One commenter, XR Securities, stated that the examination 
proposed to be developed by CBOE for associated persons was redundant 
for associated persons currently registered with another exchange who 
have passed the Series 7. The commenter stated that the new examination 
would impose an unfair burden on firms registered at CBOE and 
elsewhere, and argued that it would be better to allow associated 
persons registered at more than one exchange to take the Series 7 
instead of the proposed CBOE examination. The commenter also stated 
that the Series 24 is generally accepted by all exchanges as the CCO 
examination, whereas the Series 14 is available for FINRA/NYSE members 
to elect to take instead of the Series 24. The commenter believes that 
requiring a CCO who currently is Series 24 registered to pass the 
Series 14 would be unreasonable.
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    \27\ See supra note 4.
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    The second commenter, Cutler, is supportive of the proposed rule 
change requiring all traders to register with CBOE and pass a relevant 
trading examination; however, it also expressed concern over the 
proposed examination requirements and timeframe for completing a 
required examination. In short, Cutler believes no new examination 
requirement should be imposed on traders currently properly registered 
with CBOE. It suggested creating a new continuing education module for 
CBOE traders, to the extent the existing examinations do not cover 
relevant material that would be included in the new examination. For 
persons to be qualified on CBOE in the near future, Cutler supports 
CBOE's plan to create an examination specific and relevant to 
professional traders in lieu of the Series 7, which it considers too 
broad. Cutler echoed XR Securities' concerns regarding the Series 14 
examination for CCOs, stating that the Series 24 is the accepted 
examination for CCOs and should be adopted by CBOE instead, and, 
similarly, encouraged CBOE to create an exam to succeed the Series 24 
for supervisors whose functions are limited to the supervision of 
traders.

V. Discussion

    The Commission is sympathetic to the concerns raised by the two 
commenters regarding associated persons who are currently Series 7 
qualified who do not want to have to take the proposed CBOE proprietary 
trading exam, as well as associated persons who have already qualified 
as CCOs. The Commission expects that such persons may be eligible for a 
waiver of the exam requirement if they are able to demonstrate to the 
CBOE's satisfaction that they are appropriately qualified to do 
business on the CBOE. However, the Commission believes that this 
proposed rule change is an important step towards harmonizing the 
registration, qualification and continuing education requirements 
across the SROs. In order to meet its obligations under Section 6(b)(1) 
of the Act to enforce compliance by member firms \28\ and their 
associated persons with the Act, the rules thereunder, and the 
exchange's own rules,\29\ an exchange must have baseline registration 
and qualification requirements for all persons conducting business on 
an exchange, as well as for those supervising such activity. Further to 
those provisions, the Commission believes an exchange should require 
continuing education for registered persons to help ensure that members 
and persons associated with members are up to date on changes to 
exchange rules and the securities laws, rules, and regulations that 
govern their activities. In addition, an exchange must know if an 
associated person of a member firm is subject to a statutory 
disqualification. This information is elicited by the Form U4, which is 
used by most exchanges and FINRA to register associated persons. The 
Commission believes that it is important to ensure that information, 
such as whether an associated person is subject to a statutory 
disqualification, is available to exchanges and other regulators, 
including the Commission and the state securities regulators, through 
WebCRD, as well as members of the public

[[Page 70960]]

through BrokerCheck, which derives its information from WebCRD.\30\
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    \28\ Brokers and dealers are required to supervise the 
activities of their associated persons. See 15 U.S.C. 78o(b)(4)(E).
    \29\ Section 6(b)(1) requires exchanges to have the ability to 
enforce compliance by their members and associated persons with the 
federal securities laws and with their own rules. 15 U.S.C. 
78f(b)(1).
    \30\ See Section 6(c)(2) of the Act, 15 U.S.C. 78f(c)(2); and 
Rule 19h-1 under the Act, 17 CFR 240.19h-1.
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    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 exchange,\31\ and, in 
particular with Section 6(b)(5) of the Act,\32\ which requires, among 
other things, that the rules of a national securities exchange be 
designed to prevent fraudulent and manipulative acts and practices, to 
promote just and equitable principles of trade, to remove impediments 
to, and perfect the mechanism of, a free and open market and a national 
market system and, in general, to protect investors and the public 
interest. The Commission believes that the proposed rule change is also 
consistent with Section 6(c)(3)(B) of the Act,\33\ which authorizes 
exchanges to prescribe standards of training, experience and competence 
for persons associated with exchange members, and gives exchanges the 
authority to bar a natural person from becoming a member or a person 
associated with a member, if the person does not meet the standards of 
training, experience and competence prescribed in the rules of the 
exchange.
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    \31\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. See 15 U.S.C. 78c(f).
    \32\ 15 U.S.C. 78f(b)(5).
    \33\ 15 U.S.C. 78f(c)(3)(B).
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    CBOE's proposed rule change requires all associated persons of TPHs 
engaged in a securities business on CBOE or on CBSX, as well as those 
who supervise, train or otherwise oversee those who do, to register 
with the Exchange via the Form U4, qualify by passing an appropriate 
examination, and be subject to continuing education requirements.\34\ 
The Commission believes the restrictions on registration that bar a TPH 
from maintaining a registration with CBOE for (1) persons no longer 
active in the TPH's securities business, (2) persons no longer 
functioning in the registered capacity, or (3) for avoidance of an 
examination requirement, are appropriate. These limitations should help 
ensure that only persons qualified for their category of registration 
who are engaged in a securities business are able to transact business 
on CBOE and CBSX.
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    \34\ CBOE's proposed rule change expands its continuing 
education requirements to associated persons whose activities are 
limited to the transaction of business on CBOE's floor.
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    The Commission notes that CBOE has exempted several categories of 
associated persons from the new registration requirements. These 
persons fall outside of CBOE's proposed definition of ``engaged in a 
securities business.'' CBOE explained that the people excluded would 
not be considered to be actively engaged in a securities business 
unless they are registered on the floor of another exchange, in which 
case they would not have to register with CBOE.\35\ The Commission 
understands that CBOE's proposed rule change applies to all associated 
persons conducting a securities business, on a proprietary or agency 
basis, on CBOE and CBSX.
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    \35\ See Notice, p. 6; 75 FR 59775. Such persons must comply 
with Section 15(b)(8) of the Act.
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    The Commission expects that CBOE, consistent with its 
representation, will have developed and filed with the Commission the 
appropriate examination for its representatives engaged in a 
proprietary securities business no later than May 12, 2011. If CBOE 
fails to do so, the Commission expects CBOE to require all associated 
persons engaged in the securities business of a TPH to promptly take 
and pass an appropriate existing examination.
    The Commission believes that the requirement that all persons 
functioning in certain supervisory capacities be registered through 
WebCRD and be subject to higher qualification standards appropriately 
reflects the enhanced responsibility of their roles and is consistent 
with the Act. The general requirement that TPHs must have a minimum of 
two principals responsible for oversight of member organization 
activity on CBOE, who must be registered as such and pass a principal 
exam, should help CBOE strengthen the regulation of its member firms, 
and prepare those individuals for their responsibilities. The nature of 
the firm, however, may dictate that more than two principals are needed 
to provide appropriate supervision.
    The requirement for each TPH organization to have a CCO who must 
register and pass the Series 14 and a FINOP who must register and pass 
the Series 27 is appropriate based on the heightened level of 
accountability inherent in the duty of overseeing compliance by an 
Exchange member, and in the oversight and preparation of financial 
reports, and the oversight of those employed in financial and 
operational capacities at each firm.
    The Commission believes CBOE's proposed provision requiring any 
person whose registration has been revoked by the Exchange as a 
disciplinary sanction, or whose most recent registration as a principal 
or representative has been terminated for a period of two or more years 
immediately preceding the date of receipt by the Exchange of a new 
application, to pass the qualification examination appropriate to such 
person's category of registration is appropriate. This requirement 
should help to ensure that an associated person's qualifications are 
current.
    The Commission also believes CBOE's proposed exceptions from the 
above-discussed general requirements are appropriate. Any TPH seeking 
an exception from the two principal minimum must provide evidence that 
conclusively indicates to the Exchange that only one principal is 
necessary. The Commission expects this authority to be used sparingly, 
because such persons oversee the operations of member firms and provide 
the first line of defense in ensuring that member firms are complying 
with the rules of an exchange as well as the federal securities laws. 
In addition, CBOE may waive the qualification examination requirement 
in exceptional cases where the applicant has demonstrated that good 
cause exists. The Commission expects this authority to be used 
sparingly. Finally, the Commission notes that these exceptions are 
substantively the same as exceptions provided in similar rules at other 
SROs.\36\
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    \36\ See, e.g., FINRA Rule 1070(d) and NASDAQ Rule 1070(d) 
regarding the examination waiver.
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    The Commission believes that the proposal will enhance CBOE's 
ability to ensure an effective supervisory structure for those 
conducting business on CBOE. The requirements apply broadly and are 
intended to help close a regulatory gap which has resulted in varying 
registration, qualification, and supervision requirements across 
markets. The Commission believes that the changes proposed by CBOE to 
its rules will strengthen the regulatory structure of the Exchange and 
should enhance the ability of its individual TPHs and TPH organizations 
to comply with the Exchange's rules as well as with the federal 
securities laws.
    Additionally, the Commission believes that the proposed rule change 
is consistent with the principles of Section 11A(a)(1)(22) of the Act 
in that it seeks to assure fair competition among brokers and dealers 
and among exchange markets. The Commission believes that the proposed 
rule will promote uniformity of regulation across markets, thus 
reducing opportunities for regulatory arbitrage. CBOE's proposed rule 
change helps ensure that all persons conducting a securities business 
through CBOE are appropriately

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supervised, as the Commission expects of all SROs.

VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\37\ that the proposed rule change (SR-CBOE-2010-084), be, and 
hereby is, approved.
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    \37\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\38\
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    \38\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-29160 Filed 11-18-10; 8:45 am]
BILLING CODE 8011-01-P