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 Securities and Exchange Commission [Release No. 34-62040; File No. SR-CBOE-2010-040]
 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 April 29, 2010, the Chicago Board Options Exchange, Incorporated (“Exchange” or “CBOE”) filed with the Securities and Exchange Commission (the “Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change CBOE proposes to amend proposes to amend [sic] its rules relating to the Penny Pilot Program. The text of the rule proposal is available on the Exchange's Web site (
                    *http://www.cboe.org/​legal*), at the Exchange's Office of the Secretary, at the Commission's Public Reference Room and on the Commission's Web site at 
                    *http://www.sec.gov.* 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, 
                    ( print page 26829)
                    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 CBOE proposes to identify the 75 option classes that will be added to the Penny Pilot Program on May 3, 2010, consistent with CBOE's rule filing to extend and expand the Program that was approved on October 22, 2010.[3]
                    
                     As described in SR-CBOE-2009-76, the Pilot Program will be expanded by adding 300 option classes, in groups of 75 classes each quarter on the following dates: November 2, 2009, February 1, 2010, May 3, 2010, and August 2, 2010.[4]
                    
                     The option classes will be identified based on national average daily volume in the six calendar months preceding their addition to the Pilot Program using data compiled by The Options Clearing Corporation, except that the month immediately preceding their addition to the Pilot Program will not be utilized for purposes of the six month analysis. The following 75 option classes will be added to the Pilot Program beginning on May 3, 2010: Symbol
Security name
Symbol
Security nameGFI
Gold Fields Ltd
JCP
JC Penney Co Inc.XLV
Health Care Select Sector SPDR Fund
ACL
Alcon IncCo Inc.CIEN
Ciena Corp
STP
Suntech Power Holdings Co Ltd.AMLN
Amylin Pharmaceuticals Inc
TLB
Talbots Inc.CTIC
Cell Therapeutics Inc
SYMC
Symantec Corp.MDT
Medtronic Inc
AMED
Amedisys Inc.TIVO
TiVo Inc
TM
Toyota Motor Corp.MNKD
MannKind Corp
HK
Petrohawk Energy Corp.MDVN
Medivation Inc
ENER
Energy Conversion Devices Inc.BRKB
Berkshire Hathaway Inc
STT
State Street Corp.APOL
Apollo Group Inc
BHP
BHP Billiton Ltd.BSX
Boston Scientific Corp
NFLX
NetFlix Inc.XLY
Consumer Discretionary Sel. Sec. SPDR Fund
LDK
LDK Solar Co Ltd.CLF
Cliffs Natural Resources Inc
SPG
Simon Property Group Inc.ZION
Zions Bancorporation
TIF
Tiffany & Co.IOC
InterOil Corp
BUCY
Bucyrus International Inc.ITMN
InterMune Inc
WAG
Walgreen Co.GME
GameStop Corp
IP
International Paper Co.XLK
Technology Select Sector SPDR Fund
XME
SPDR S&P Metals & Mining ETF.AKS
AK Steel Holding Corp
KGC
Kinross Gold Corp.GRMN
Garmin Ltd
EP
El Paso Corp.MRVL
Marvell Technology Group Ltd
SEED
Origin Agritech Ltd.XLP
Consumer Staples Select Sector SPDR Fund
WIN
Windstream Corp.UNP
Union Pacific Corp
DHI
DR Horton Inc.DTV
DIRECTV
ADBE
Adobe Systems Inc.WMB
Williams Cos Inc/The
PCX
Patriot Coal Corp.MEE
Massey Energy Co
SPWRA
SunPower Corp.CELG
Celgene Corp
LCC
US Airways Group Inc.GMCR
Green Mountain Coffee Roasters Inc
PRU
Prudential Financial Inc.WDC
Western Digital Corp
LEN
Lennar Corp.DAL
Delta Air Lines Inc
EWT
iShares MSCI Taiwan Index Fund.FXE
CurrencyShares Euro Trust
KBH
KB Home.COST
Costco Wholesale Corp
CREE
Cree Inc.MJN
Mead Johnson Nutrition Co
SIRI
Sirius XM Radio Inc.ALL
Allstate Corp/The
MMR
McMoRan Exploration Co.SII
Smith International Inc
CENX
Century Aluminum Co.RTN
Raytheon Co
MT
ArcelorMittal.DVN
Devon Energy Corp
 The minimum increments for all classes in the Penny Pilot (except for the QQQQs, IWM and SPY) are: $0.01 for all option series below $3 (including LEAPS), and $0.05 for all option series $3 and above (including LEAPS). The minimum increment for all option series in QQQQ, IWM and SPY is $.01. 2. Statutory Basis The Exchange believes the rule proposal is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations under the Act applicable to a national securities exchange and, in particular, the requirements of Section 6(b) of the Act.[5]
                    
                     Specifically, the Exchange believes that the proposed rule change is consistent with the Section 6(b)(5) Act [6]
                    
                     requirements that the rules of an exchange be designed to promote just and equitable principles of trade, to prevent fraudulent and manipulative acts and, in general, to protect investors and the public interest. In particular, the proposed rule change allows for an expansion of the Penny Pilot Program for the benefit of market participants and identifies the option classes to be 
                    ( print page 26830)
                    added to the Pilot Program in a manner consistent with CBOE's rule filing SR-CBOE-2009-76 to extend and expand the Pilot Program. 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 proposed rule change is filed for immediate effectiveness pursuant to Section 19(b)(3)(A) [7]
                    
                     of the Securities Exchange Act of 1934 and Rule 19b-4(f)(1) [8]
                    
                     thereunder as it constitutes a stated policy, practice, or interpretation with respect to the meaning, administration, or enforcement of an existing rule. At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments Use the Commission's Internet comment form (*http://www.sec.gov/​rules/​sro.shtml*); or
Send an e-mail to*rule-comments@sec.gov.*
                     Please include File Number SR-CBOE-2010-040 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-2010-040. 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 CBOE's principal office and on its Web site at 
                    *http://www.cboe.com.*
                     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-2010-040 and should be submitted on or before June 2, 2010. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.[9] Florence E. Harmon, Deputy Secretary.


# Footnotes

1.
    
                         15 U.S.C. 78s(b)(1). Back to Citation
 2.
    
                         17 CFR 240.19b-4. Back to Citation
 3.
    
                         
                        *See*
                         Securities Exchange Act Release No. 60864 (October 22, 2009), granting immediate effectiveness to SR-CBOE-2009-76. The Commission notes that this proposed rule change was submitted pursuant to Section 19(b)(3)(A)(iii) of the Act and was, therefore, effective upon filing. The Commission does not approve proposed rule changes submitted pursuant to this section of the Act. Back to Citation
 4.
    
                         The classes to be added are among the most actively-traded, multiply-listed option classes that are not currently in the Pilot Program, excluding option classes with high premiums. An option class would be designated as “high premium” if, at the time of selection, the underlying security was priced at $200 per share or above, or the underlying index level was at 200 or above. Back to Citation
 5.
    
                         15 U.S.C. 78f(b). Back to Citation
 6.
    
                         15 U.S.C. 78f(b)(5). Back to Citation
 7.
    
                         15 U.S.C. 78s(b)(3)(A). Back to Citation
 8.
    
                         17 CFR 240.19b-4(f)(1). Back to Citation
 9.
    
                             17 CFR 200.30-3(a)(12). Back to Citation


[FR Doc. 2010-11257 Filed 5-11-10; 8:45 am] BILLING CODE 8010-01-P