[Federal Register Volume 72, Number 76 (Friday, April 20, 2007)]
[Notices]
[Pages 19993-19997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7494]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55630; File No. SR-CBOE-2007-21]


Self-Regulatory Organizations; Chicago Board Options Exchange, 
Incorporated; Notice of Filing and Order Granting Accelerated Approval 
of a Proposed Rule Change, as Modified by Amendment No. 1, To List for 
Trading Options on Commodity Pool Units

April 13, 2007.
    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 February 22, 2007, the Chicago Board Options Exchange, 
Incorporated (``CBOE'' or ``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 substantially 
prepared by the Exchange. On March 26, 2007, CBOE filed Amendment No. 1 
to the proposed rule change.\3\ This order provides notice of the 
proposed rule change as modified by Amendment No. 1 and approves the 
proposed rule change on an accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 1 replaces and supersedes the original filing 
in its entirety.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend CBOE Rules 4.18 Interpretation and 
Policy .01, 5.3 Interpretation and Policy .06, 5.4 Interpretation and 
Policy .08, 8.9, and 15.1 Interpretation and Policy .04 to permit the 
listing and trading of options on securities issued by Trust Issued 
Receipts (``TIRs''), partnership units (``Partnership Units''), and 
other entities whose value is based on underlying commodity interests 
(referred to collectively herein as ``Commodity Pool Units'').
    The text of the proposed rule change is available at the CBOE, the 
Commission's Public Reference Room, and http://www.cboe.com.

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 CBOE included statements 
concerning the purpose of and basis for the proposed rule change. The 
text of these

[[Page 19994]]

statements may be examined at the places specified in Item III below. 
The 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
    The CBOE states that the proposed rule change is based on a 
proposal by the American Stock Exchange LLC (``Amex'').\4\
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    \4\ See Securities Exchange Act Release No. 55547 (March 28, 
2007), 72 FR 16388 (April 4, 2007) (SR-Amex-2006-110) (approving 
listing criteria covering options on securities issued by entities 
holding commodity derivatives). CBOE's proposed rule text includes a 
definition of ``Partnership Units'' that parallels the definition in 
Amex's rules. See Interpretation and Policy .10 to CBOE Rule 5.4. 
CBOE notes that, although the proposed definition of ``Partnership 
Units'' includes a broad universe of securities, including those of 
entities that invest in physical commodities. The current filing, 
like the Amex proposal, proposes to list and trade options only on 
Commodity Pool Units that invest in a combination of commodity 
derivative products, and not in physical commodities.
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    The purpose of this proposed rule change is to enable the listing 
and trading on the Exchange of options on Commodity Pool Units that 
trade, directly or indirectly, in commodity futures products. Commodity 
Pool Units may hold or trade in one or more types of investments that 
may include any combination of securities, commodity futures contracts, 
options on commodity futures contracts, swaps and forward contracts. 
The shares of the Commodity Pool Units are securities registered with 
the Commission and the offer and sale of those shares are subject to 
the Commission's regulatory oversight. The investments held, directly 
or indirectly, within the Commodity Pool Units are subject to the 
Commodity Exchange Act (``CEA'') due to their status as a ``commodity 
pool.'' \5\ Therefore, the trading of the assets and/or investment 
(e.g., futures and options on futures) held within the Commodity Pool 
Units is regulated by the Commodity Futures Trading Commission 
(``CFTC'').\6\
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    \5\ The term ``[commodity] pool means any investment trust, 
syndicate or similar form of enterprise operated for the purpose of 
trading commodity interests.'' 17 CFR 4.10(d)(1). A commodity 
interest is ``(1) Any contract for the purchase or sale of a 
commodity for future delivery; and (2) Any contract, agreement or 
transaction subject to Commission regulation under Section 4c or 19 
of the [Commodity Exchange] Act.'' 17 CFR 4.10(a).
    \6\ The manager or operator of a ``commodity pool'' is required 
to register, unless applicable exclusions apply, as a commodity pool 
operator (``CPO'') and as a commodity trading advisor (``CTA'') with 
the CFTC and become a member of the National Futures Association 
(``NFA'').
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    Currently, CBOE Rule 5.3 Interpretation and Policy .06 provides 
that securities deemed appropriate for options trading shall include 
shares or other securities (``Units'') that are principally traded on a 
national securities exchange or through the facilities of a national 
securities association and reported as a NMS security, and that (i) 
Represent interests in registered investment companies (or series 
thereof) organized as open-end management investment companies, unit 
investment trusts or similar entities that hold portfolios of 
securities comprising or otherwise based on or representing investments 
in indexes or portfolios of securities (or that hold securities in one 
or more other registered investment companies that themselves hold such 
portfolios of securities); or (ii) represent interests in a trust that 
holds a specified non-U.S. currency deposited with the trust when 
aggregated in some specified minimum number may be surrendered to the 
trust by the beneficial owner to receive the specified non-U.S. 
currency and pays the beneficial owner to receive the specified non-
U.S. currency and pays the beneficial owner interest and other 
distributions on deposited non-U.S. currency, if any, declared and paid 
by the trust.
    The Exchange proposes to amend Interpretation and Policy .06 to its 
Rule 5.3 to expand the type of options to include the listing and 
trading of options based on Commodity Pool Units that may hold or 
invest, directly or indirectly, in commodity futures products, 
including, but not limited to, commodity futures contracts, options on 
commodity futures contracts, swaps and forward contracts. As part of 
this revision to Rule 5.3 Interpretation and Policy .06, the Exchange 
proposes to add paragraph (ii)(F) requiring for Commodity Pool Units 
that a comprehensive surveillance sharing agreement be in place with 
the marketplace or marketplaces with last sale reporting that 
represent(s) the highest volume in such commodity futures contracts 
and/or options on commodity futures contracts on the specified 
commodities or non-U.S. currency, which are utilized by the national 
securities exchange where the underlying Commodity Pool Units are 
listed and traded.
    As set forth in the proposed amendment to Interpretation and Policy 
.06 to CBOE Rule 5.3, Commodity Pool Units must be traded on a national 
securities exchange or through the facilities of a national securities 
association and must be an ``NMS stock'' as defined under Rule 600 of 
Regulation NMS. In addition, Commodity Pool Units must meet either (i) 
the criteria and guidelines under CBOE Rule 5.3 and Interpretation and 
Policy .01; or (ii) be available for creation or redemption each 
business day from or through the issuing trust, investment company, 
commodity pool or other issuer in cash or in kind at a price related to 
net asset value. In addition, the issuing trust, investment company, 
commodity pools or other issuer is obligated to issue Units in a 
specified aggregate number even if some or all of the investment assets 
required to be deposited have not been received by the issuing trust, 
investment company, commodity pool or other issuer, subject to the 
condition that the person obligated to deposit the investment assets 
has undertaken to deliver the investment assets as soon as possible and 
such undertaking is secured by the delivery and maintenance of 
collateral consisting of cash or cash equivalents satisfactory to the 
issuer of Units which underlie the option as described in the Units' 
prospectus.
    Under the applicable continued listing criteria in Interpretation 
and Policy .08 to CBOE Rule 5.4, the Exchange shall not open for 
trading any additional series of option contracts on Units that were 
initially approved for options trading pursuant to Interpretation and 
Policy .06 to Rule 5.3 if such Units either (i) Cease to be an ``NMS 
stock'' as provided in paragraph (f) of Interpretation and Policy .01 
of Rule 5.4 (an ``NMS stock'' is defined in Rule 600 of Regulation NMS 
of the Act); or (ii) are halted from trading in their primary market.
    In addition, the Exchange shall consider the suspension of opening 
transactions in any series of options of the class covering Units in 
the following circumstances: (1) Following the initial twelve-month 
period beginning upon the commencement of trading in the Units on a 
national securities exchange or through the facilities of a national 
securities association and are defined as an ``NMS stock'' under Rule 
600 of Regulation NMS, there are fewer than 50 record and/or beneficial 
holders of such Units for 30 or more consecutive trading days; or (2) 
the value of the index or portfolio of securities, non-U.S. currency, 
or portfolio of commodities including commodity futures contracts, 
options on commodity futures contracts, swaps, forward contracts and/or 
options on physical commodities on which the Units are based is no 
longer calculated or available. In addition, the Exchange is proposing 
to amend Rule 5.4 Interpretation and Policy .08, by adding

[[Page 19995]]

new paragraph (d), which provides the Exchange with the ability to 
determine that it will not open additional series of options on Units 
if such events occur or conditions exist that in the opinion of the 
Exchange make further dealing in such options on the Exchange 
inadvisable. The Exchange notes that this proposed paragraph is based 
on a parallel provision in Commentary .07(4) to Amex Rule 916.
    The Exchange is also proposing to amend Interpretation and Policy 
.01 to its Rule 4.18 to require members to establish, maintain and 
enforce written policies and procedures to prevent the misuse of 
material, nonpublic information it might have or receive in a related 
security, option or derivative or in the applicable related commodity, 
commodity futures or options on commodity futures or any other related 
commodity derivatives.
    The Exchange is further proposing to amend CBOE Rule 8.9 to require 
that Market-Makers for options in Commodity Pool Units file with the 
Exchange upon request a list identifying all accounts for, among other 
things, physical commodities, physical commodity options, commodity 
futures contracts, options on commodity futures contracts, any other 
derivatives based on such commodity in which the Market-Maker may have 
directly or indirectly engaged in trading activities or over which he 
exercises investment discretion.\7\ In addition, the proposed revision 
to Rule 8.9 further requires that no Market-Maker shall engage in 
trading in, among other things, physical commodities, physical 
commodity options, commodity futures contracts, options on commodity 
futures contracts, any other derivatives based on such commodity in an 
account which has not been reported in a manner prescribed by the 
Exchange.\8\
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    \7\ The Exchange is proposing to add the phrase ``for options 
on'' in two places in the first sentence of CBOE Rule 8.9(a) to 
clarify that Rule 8.9(a) governs Market-Makers in options on Units 
(versus Market-Markets in the Unit underlying the option).
    \8\ The Exchange is proposing to add the phrase ``trading in'' 
to the last sentence of CBOE Rule 8.9(a) to clarify the conduct 
governed by the rule.
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    In addition, the Exchange proposes to amend Interpretation and 
Policy .04 to CBOE Rule 15.1 to require Market-Makers to make available 
to the Exchange such books and records or other information pertaining 
to transactions in the applicable physical commodity, physical 
commodity options, commodity futures contracts, options on commodity 
futures contracts, or any other derivatives on such commodity, as may 
be requested by the Exchange.
    The Exchange represents that it has an adequate surveillance 
program in place for options based on Commodity Pool Units. The 
Exchange may obtain trading information via the Intermarket 
Surveillance Group (``ISG'') from other exchanges who are members or 
affiliates of the ISG and has entered into numerous comprehensive 
surveillance-sharing agreements with various commodity futures 
exchanges worldwide. Prior to listing and trading options on Commodity 
Pool Units, the Exchange represents that it would either have the 
ability to obtain specific trading information via ISG or through a 
comprehensive surveillance sharing agreement with the primary exchange 
or exchanges where the particular commodity futures and/or options on 
commodity futures are traded.
    The addition of Commodity Pool Units would not have any effect on 
the rules pertaining to position and exercise limits.\9\ The Exchange 
also represents that the margin requirements for options on Commodity 
Pools Units would be evaluated for each product the Exchange 
anticipates listing. Any new margin rules deemed necessary will be 
filed separately with the Commission.
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    \9\ See CBOE Rules 4.11 and 4.12.
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    This proposal is necessary to enable the Exchange to list and trade 
options on an expanding range of Commodity Pool Units that the 
Commission has approved for trading, including the DB Commodity Index 
Tracking Fund (the ``DBC Fund''), the United States Oil Fund, L.P. (the 
``Oil Fund'') and the PowerCommodity Pool ETFs DB G10 Currency Harvest 
Fund (the ``DBV Fund'').\10\
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    \10\ See Securities Exchange Act Release Nos. 53105 (January 11, 
2006), 71 FR 3129 (January 19, 2006) (approving the listing and 
trading of the DB Commodity Index Tracking Fund); 53582 (March 31, 
2006), 71 FR 17510 (April 6, 2006) (approving the listing and 
trading of Units of the United States Oil Fund, L.P.); and 54450 
(September 14, 2006), 71 FR 51245 (September 21, 2006) (approving 
the listing and trading of the PowerShares DB G10 Currency Harvest 
Fund).
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    The DBC Fund is a Commodity TIR \11\ and tracks the performance of 
the Deutsche Bank Liquid Commodity Index<SUP>TM</SUP>--Excess Return 
while the Oil Fund is a Partnership Unit and tracks the spot price of 
West Texas Intermediate light, sweet crude oil delivered to Cushing, 
Oklahoma.
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    \11\ The offering of DBC Fund shares is registered with the 
Commission under the Securities Act of 1933 and its most recent Form 
10-Q was filed with the Commission on November 14, 2006.
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    The DBC Fund is a ``feeder fund'' that invests substantially all of 
its assets in the DB Commodity Index Tracking Master Fund, and the 
Master Fund in turn maintains a portfolio of exchange-traded futures on 
aluminum, gold, corn, wheat, heating oil and light, sweet crude oil. 
The Index is derived from the prices of those futures contracts. The 
Master Fund's portfolio is managed on an ongoing basis by DB Commodity 
Services LLC, a registered CPO and CTA, so that the value of the 
portfolio closely tracks the value of the Index over time.
    The DBV Fund is also a Commodity TIR \12\ and a ``feeder fund'' 
that invests substantially all of its assets in the PowerCommodity Pool 
ETFs DB G10 Currency Harvest Master Fund, and the Master Fund in turn 
maintains a portfolio of exchange-traded futures on foreign currencies 
that comprise the G-10 countries. The Index is derived from the prices 
of those futures contracts. The Master Fund's portfolio is managed on 
an ongoing basis by DB Commodity Services LLC, a registered CPO and 
CTA, so that the value of the portfolio closely tracks the value of the 
Index over time.
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    \12\ The offering of DBV Fund shares is registered with the 
Commission under the Securities Act of 1933 and its most recent Form 
10-Q was filed with the Commission on November 14, 2006.
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    Unlike the DBC and DBV Funds, the Oil Fund \13\ does not invest 
through a master-feeder structure but rather trades directly in futures 
on crude and heating oil, natural gas, gasoline and other petroleum-
based fuels, options on such futures contracts, forward contracts on 
oil and other over-the-counter derivatives based on the price of oil, 
other petroleum-based fuels, the futures contracts described above, and 
the indexes based on any of the foregoing. The Oil Fund's portfolio is 
managed by Victoria Bay Asset Management LLC with the aim of tracking 
the West Texas Intermediate light, sweet crude oil futures contract 
listed and traded on the New York Mercantile Exchange (``NYMEX'').
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    \13\ The offering of Oil Fund shares is registered with the 
Commission under the Securities Act of 1933 and its most recent Form 
S-1 was filed with the Commission on January 19, 2007.
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    The Exchange believes that it is reasonable to expect that other 
types of Commodity Pool Units will be introduced for trading in the 
near future. The proposed amendment to the Exchange's listing criteria 
for options on Commodity TIRs and Partnership Units is necessary to 
ensure that the Exchange will be able to list options on Commodity Pool 
Units that have been recently launched as well as any other similar 
Commodity Pool Units that may be listed and traded in the future.

[[Page 19996]]

2. Statutory Basis
    The Exchange believes that, with the commencement of trading of 
Commodity Pool Units on the Exchange, amending its rules to accommodate 
the listing and trading of options on publicly traded shares of other 
securities that hold and/or manage portfolios or baskets of commodity 
futures contracts, options on commodity futures contracts, swaps, 
forward contracts, options on physical commodities, options on non-U.S. 
currency, and/or securities will benefit investors by providing them 
with the same valuable risk management tool that is currently available 
with respect to other publicly traded Units (or Exchange Traded Funds) 
whose investment assets consist of securities. Accordingly, the 
Exchange believes that the proposed rule change is consistent with the 
requirements of Section 6(b) of the Act \14\ in general, and furthers 
the objectives of Section 6(b)(5),\15\ of the Act in particular, in 
that it would remove impediments to and perfect the mechanism of a free 
and open market in a manner consistent with the protection of investors 
and the public interest.
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    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(5).
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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

    The Exchange states that no written comments were solicited or 
received with respect to the proposed rule change.

III. 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#4c3e392029612f2321212922383f0c3f292f622b233a"><span class="__cf_email__" data-cfemail="057770696028666a6868606b7176457660662b626a73">[email protected]</span></a>. Please include 
File Number SR-CBOE-2007-21 on the subject line.

Paper Comments

    <bullet> Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-CBOE-2007-21. This file 
number should be included on the subject line if e-mail is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for inspection and 
copying in the Commission's Public Reference Room. Copies of the filing 
also will be available for inspection and copying at the principal 
office of the CBOE. 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-2007-21 and should be submitted on or before May 11, 2007.

IV. Commission Findings and Accelerated Approval

    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 
exchange \16\ and, in particular, the requirements of Section 6 of the 
Act.\17\ Specifically, the Commission finds that the proposed rule 
change is consistent with Section 6(b)(5) of the Act,\18\ which 
requires, among other things, that the rules of a national securities 
exchange be designed 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.
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    \16\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. 15 U.S.C. 78c(f).
    \17\ 15 U.S.C. 78f.
    \18\ 15 U.S.C. 78f(b)(5).
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Surveillance

    The Commission notes that Exchange has represented that it has an 
adequate surveillance program in place for options based on Commodity 
Pool Units. The Exchange may obtain trading information via the ISG 
from other exchanges who are members or affiliates of the ISG and has 
entered into numerous comprehensive surveillance sharing agreements 
with various commodity futures exchanges worldwide. Prior to listing 
and trading options on Commodity Pool Units, the Exchange represented 
that it will either have the ability to obtain specific trading 
information via ISG or through a comprehensive surveillance sharing 
agreement with the exchange or exchanges where the particular commodity 
futures and/or options on commodity futures are traded. In addition, 
the Exchange represented that the addition of Commodity Pool Unit 
options will not have any effect on the rules pertaining to position 
and exercise limits \19\ or margin.
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    \19\ See CBOE Rules 4.11 and 4.12.
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Listing and Trading of Options on Commodity Pool Units

    The Commission notes that, pursuant to the proposed rule change, a 
Commodity Pool Unit will be subject to the provisions of CBOE Rules 5.3 
and 5.4, and the Interpretation and Policy thereto, as applicable. 
These provisions include requirements regarding initial and continued 
listing standards, the creation/redemption process for Commodity Pool 
Units, and trading halts. All Commodity Pool Units must be traded 
through a national securities exchange or through the facilities of a 
national securities association, and must be ``NMS stock'' as defined 
under Rule 600 of Regulation NMS.\20\
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    \20\ 17 CFR 242.600(b)(47).
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    The Commission believes that this proposal is necessary to enable 
the Exchange to list and trade options on an expanding range of 
Commodity Pool Units currently approved for trading and that it is 
reasonable to expect other types of Commodity Pool Units to be 
introduced for trading in the future. This proposal would help ensure 
that the Exchange will be able to list options on Commodity Pool Units 
that have been recently launched as well as any other similar Commodity 
Pool Units that may be listed and traded in the future \21\ thereby 
offering investors greater option choices.
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    \21\ 17 CFR 240.19b-4(e).

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[[Page 19997]]

    The Commission finds good cause, pursuant to Section 19(b)(2) of 
the Act,\22\ for approving the proposed rule change, as modified by 
Amendment No. 1, prior to the thirtieth day after the date of 
publication of notice in the Federal Register. The Commission notes 
that the proposal is consistent with the Exchange's listing and trading 
standards in CBOE Rules 5.3 and 5.4, and the Commission has recently 
approved a similar proposal, after publishing it for a full comment 
period and receiving no comments.\23\ Therefore, the Commission does 
not believe that the proposed rule change, as amended, raises novel 
regulatory issues. Consequently, the Commission believes that it is 
appropriate to permit investors to benefit from the flexibility 
afforded by trading these products without delay.
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    \22\ 15 U.S.C. 78s(b)(2).
    \23\ See Securities Exchange Act Release No. 55547 (March 28, 
2007), 72 FR 16388 (April 4, 2007) (SR-Amex-2006-110).
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    Accordingly, the Commission finds that there is good cause, 
consistent with Section 6(b)(5) of the Act,\24\ to approve the 
proposal, as amended, on an accelerated basis.
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    \24\ 15 U.S.C. 78s(b)(5).
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V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\25\ that the proposed rule change (SR-CBOE-2007-21), as modified 
by Amendment No. 1, be, and is hereby approved on an accelerated basis.
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    \25\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\26\
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    \26\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-7494 Filed 4-19-07; 8:45 am]
BILLING CODE 8010-01-P


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