[Federal Register Volume 67, Number 2 (Thursday, January 3, 2002)]
[Notices]
[Pages 378-380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-76]


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SECURITIES AND EXCHANGE COMMISSION

[Release No 34-45191; File No. SR-CBOE-2001-59]


Self-Regulatory Organizations; Notice of Filing of Proposed Rule 
Change and Amendment No. 1 Thereto by the Chicago Board Options 
Exchange, Incorporated Relating to the Amendment of CBOE Disciplinary 
Rules 17.9 and 17.10 and the Addition of CBOE Disciplinary Rule 17.15

December 26, 2001.
    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 December 6, 2001, the Chicago Board Options Exchange, Inc. (``CBOE'' 
or ``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items, I, II, and III below, which Items have been prepared by the 
CBOE. The CBOE filed Amendment No. 1 on December 17, 2001.\3\ The 
Commission is publishing this notice to solicit comments on the 
proposed rule change, as amended, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See letter from Christopher R. Hill, Attorney II, Office of 
Enforcement, Legal Division, CBOE, to Sapna Patel, Attorney, 
Division of Market Regulation, Commission, dated December 13, 2001 
(``Amendment No. 1''). In Amendment No. 1, the CBOE made some 
technical corrections to the proposed rule text.
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I. Self-Regulatory Organization's Statement of the Terms of 
Substance of the Proposed Rule Change

    The CBOE proposes to amend several provisions of its disciplinary 
rules and add a new disciplinary rule.
    Below is the text of the proposed rule change, as amended. Proposed 
new language is italicized and proposed deletions are in brackets.
* * * * *

Chicago Board Options Exchange, Incorporated Rules

Chapter XVII--Discipline

Rule 17.9. Decision
    Following a hearing conducted pursuant to Rule 17.6 of this 
Chapter, the Panel shall issue a decision in writing, based solely on 
the record, determining whether the Respondent has committed a 
violation and imposing the sanction, if any, therefor. Where the Panel 
is not composed of at least a majority of the members of the Business 
Conduct Committee, its determination shall be automatically reviewed by 
a majority of the Committee, which may affirm, reverse or modify in 
whole or in part or may remand the matter for additional findings or 
supplemental proceedings. Such modification may include an increase or 
decrease of the sanction. The decision shall include a statement of 
findings and conclusions, with the reasons therefor, upon all material 
issues presented on the record. Where a sanction is imposed, the 
decision shall include a statement specifying the acts or practices in 
which the Respondent has been found to have engaged and setting forth 
the specific provision of the Securities Exchange Act of 1934, as 
amended, rules and regulations promulgated thereunder, constitutional 
provisions, by-laws, rules, interpretations or resolutions of the 
Exchange of which the acts are deemed to be in violation. The 
Respondents and the Office of Enforcement shall be promptly sent a copy 
of the decision. After Board review pursuant to Rule 17.10, or the time 
for such review has expired, the decision will be considered final, and 
the Exchange shall publish a summary of the decision in the Exchange 
Bulletin.
Rule 17.10. Review
    (a)(1) Petition. Both t[T]he Respondent and the Office of 
Enforcement shall have 15 days after service of notice of any[a] 
decision made pursant to Rule 17.9 of this Chapter to petition for 
review of the decision by filing a copy of the petition with the 
Secretary of the Exchange (``Secretary'') and with all other parties to 
the hearing [the Exchange's Office of Enforcement]. Such petition shall 
be in writing and shall specify the findings and conclusions to which 
exceptions are taken together with reasons for such exceptions. Any 
objections to a decision not specified by written exception shall be 
considered to have been abandoned.
    (2) Written Submissions. Within 15 days after a 
[Respondent's]petition for review has been filed with the Secretary of 
the Exchange pursuant to paragraph (a)(1) of this Rule, the other 
parties to the hearing[Exchange staff] may each submit to the Secretary 
a written response to the petition. A copy of the response must be 
served upon the petitioner[Respondent]. The petitioner[A Respondent] 
has 15 days from the service of the response to file a reply with the 
Secretary and the other parties [Office of Enforcement].
    (b) Conduct of Review. The review shall be conducted by the Board 
or a committee of the Board composed of at least three Directors whose 
decision must be ratified by the Board. Any Director who participated 
in a matter before the Business Conduct or other Committee may not 
participate in any review of that matter by the Board. Unless the Board 
shall decide to open the record for the introduction of evidence or to 
hear argument, such review shall be based solely upon the record and 
the written exceptions filed by the parties. New issues may be raised 
by the Board; the parties to the hearing[Respondents] shall be given 
notice of and any opportunity to address any such new issues. The Board 
may affirm, reverse or modify, in whole or in part, the decision of the 
Business Conduct Committee. Such modification may include an increase 
or decrease of the sanction. The decision of the Board shall be in 
writing, shall be promptly served on the Respondent and the Office of 
Enforcement, and shall be final.
    (c) Review on Motion of Board. The Board may on its own initiative 
order review of a decision made pursuant to Rule 17.7 or 17.9 of this 
Chapter within 30 days after notice of the decision has

[[Page 379]]

been served on the Respondent and the Office of Enforcement. Such 
review shall be conducted in accordance with the procedure set forth in 
paragraph (b) of this Rule.
    (d) No change.

Rule 17.15. Ex Parte Communications

    Members and persons associated with members shall not make or 
knowingly cause to be made an ex parte communications with any member 
of the Board with the intent to influence the outcome of any pending 
investigation or disciplinary proceeding. Members of the Board shall 
not make a knowingly cause to be made an ex parte communication with 
any members or persons associated with members with the intent to 
influence the outcome of any pending investigation or disciplinary 
proceeding. No violation of this Rule shall be deemed to occur if the 
ex parte communication deals solely with procedural matters rather than 
the merits of the investigation or proceeding.

Interpretations and Policies:

    .01 ``Ex parte communication'' means an oral or written 
communication made without notice to all parties, that is, regulatory 
staff and Subjects of investigations or Respondents in proceedings. A 
written communication is ex parte unless a copy has been previously or 
simultaneously delivered to all interested parties. An oral 
communication is ex parte unless it is made in the presence of all 
interested parties except those who, on adequate prior notice, declined 
to be present.
* * * * *

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 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. 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
    a. Ex Parte Communications With Board of Director (``Board'') 
Members Prohibited
    Currently, Exchange Rule 17.4(d) prohibits members or persons 
associated with members from making or causing ex parte communications 
with any member of the Business Conduct Committee (``BBC'') concerning 
the merits of any matter pending under the disciplinary rules of the 
Exchange. This prohibition is to eliminate the potential that such 
communications might somehow influence the outcome of an investigation 
or enforcement matter. The Exchange believes that Exchange disciplinary 
rules should also forbid ex parte communications with members of the 
Exchange Board. Such communications are already prohibited by other 
self-regulatory organizations.\4\ Therefore, the exchange proposes to 
add a new Exchange Rule 17.15, ``Ex Parte Communications,'' which would 
prohibit ex parte communications with members of the Board that are 
made with the intent to influence the outcome of any pending 
investigation or disciplinary proceeding. The Exchange represents that 
proposed Exchange Rule 17.15 would expressly create a safe harbor for 
communication dealing solely with procedural matters rather than the 
merits of the investigation or proceeding. The text of the current 
Interpretation and Policy .01 to Exchange Rule 17.4(d) defining ``Ex 
Parte Communications'' will be duplicated as Interpretation and Policy 
.01 of proposed Exchange Rule 17.15.
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    \4\ See American Stock Exchange LLC Exchange Disciplinary 
Proceedings Rule 11(a); National Association of Securities Dealers, 
Inc. (``NASD'') Rule 9143(a); and Pacific Exchange, Inc. Rule 
10.3(a).
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    b. Exchange Right to Appeal
    Exchange Rule 17.10(a) permits a Respondent in a disciplinary 
matter to appeal a decision of the BCC to the Board, but does not grant 
the Exchange's Office of Enforcement (``OOE'') a similar right of 
appeal. Again, the Exchange believes that its OOE should have such a 
right, both to appeal factual findings that the OOE thinks may have 
been in error, as well as to appeal disciplinary sanctions that the OOE 
deems insufficient. Such appeals are already authorized at other 
exchanges.\5\ Therefore, the Exchange proposes to amend Exchange Rules 
17.9 and 17.10 to give the OOE and the Respondent equivalent rights in 
the appellate process.
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    \5\ See New York Stock Exchange, Inc. Rule 476(f); NASD Rule 
9311; and Securities Exchange Act Release No. 43554 (November 14, 
2001), 65 FR 69975 (November 21, 2001) (File No. SR-Amex-00-22).
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2. Statutory Basis
    The Exchange believes that the proposed rule change described above 
is consistent with the provisions of section 6(b) \6\ of the Act, in 
general, and specifically furthers the objectives of sections 
6(b)(1),\7\ 6(b)(6),\8\ and 6(b)(7) \9\ of the Act, in particular, in 
that it will enhance the ability of the Exchange to enforce compliance 
by its members and persons associated with its members with provisions 
of the Act, the rules and regulations thereunder, and the rules of the 
Exchange. It will help ensure that members and persons associated with 
members are appropriately disciplined when they violate those 
provisions.
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    \6\ 15 U.S.C. 78f(b).
    \7\ 15 U.S.C. 78f(b)(1).
    \8\ 15 U.S.C. 78f(b)(6).
    \9\ 15 U.S.C. 78f(b)(7).
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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 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

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the Exchange consents, the Commission will:
    (A) By order approve such proposed rule change, or
    (B) Institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change, as amended, in consistent with the Act. Persons making written 
submissions should file six copies thereof with the Secretary, 
Securities and Exchange Commission, 450 Fifth Street, NW., Washington, 
DC 20549-0609. Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the

[[Page 380]]

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 such filing will also be 
available for inspection and copying at the principal office of the 
CBOE. All submissions should refer to File No. SR-CBOE-2001-59 and 
should be submitted by January 24, 2002.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\10\
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    \10\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 02-76 Filed 1-2-02; 8:45 am]
BILLING CODE 8010-01-M