[Federal Register Volume 67, Number 212 (Friday, November 1, 2002)]
[Notices]
[Pages 66689-66692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27805]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-46719; File No. SR-CBOE-2002-41]


Self-Regulatory Organizations; Notice of Filing and Order 
Granting Accelerated Approval of a Proposed Rule Change and Amendment 
No. 1 Thereto by the Chicago Board Options Exchange, Inc. Relating to 
an Interpretation of Paragraph (b) of Article Fifth of Its Certificate 
of Incorporation and an Amendment to Rule 3.16(b)

October 25, 2002.
    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 July 29, 2002, the Chicago Board Options Exchange, Inc. (``CBOE'') 
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 the CBOE. On September 20, 2002, the CBOE filed 
an amendment to the proposed rule change.\3\ The Commission is 
publishing this notice to solicit comments on the proposed rule change 
from interested persons, and to approve the proposed rule change, as 
amended, on an accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See letter from Arthur B. Reinstein, Deputy General Counsel, 
CBOE, to Elizabeth King, Associate Director, Division of Market 
Regulation, Commission, dated September 19, 2002 (``Amendment No. 
1''). Amendment No. 1 designates the proposed rule change as filed 
pursuant to Section 19(b)(2) of the Act. 15 U.S.C. 78s(b)(2). The 
CBOE also requests that the proposed rule change be given 
accelerated effectiveness, pursuant to 19(b)(2) of the Act. 15 
U.S.C. 78s(b)(2).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The proposed rule change consists of an interpretation of paragraph 
(b) of Article Fifth of the Certificate of Incorporation of the CBOE 
(``Article Fifth (b)'') pertaining to the right of 1,402 full members 
of the Board of Trade of the City of Chicago (``CBOT'') to become 
members of CBOE without having to purchase a CBOE membership (the 
``Exercise Right''). This provision has previously been interpreted by 
the CBOE, including an interpretation reflected in an agreement between 
the CBOE and CBOT dated September 1, 1992 (the ``1992 Agreement'').\4\ 
The interpretation provided, among other things, that in order to 
become a member of the CBOE pursuant to the Exercise Right, a full 
member of the CBOT must be in possession of all the trading rights and 
privileges appurtenant to a CBOT full membership.
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    \4\ The CBOE believes that the 1992 Agreement and an amendment 
to Rule 3.16 referring to the 1992 Agreement were approved by the 
Commission. See Securities Exchange Act Release No. 32430 (June 8, 
1993), 58 FR 32969 (June 14, 1993).
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    It has recently come to the attention of the CBOE that starting in 
1999, the CBOT implemented expedited membership approval procedures 
applicable only to those individuals who wished to become CBOE members 
pursuant to the Exercise Right, but did not wish to trade as members on 
the CBOT itself. Under the rules of the CBOT, individuals approved for 
CBOT membership pursuant to these expedited procedures do not have any 
rights to trade as members on the CBOT, and thus the CBOE believes that 
these individuals do not satisfy the interpretation reflected in the 
1992 Agreement as described above.
    On April 17, 2002, the CBOE informed the CBOT that individuals 
approved for CBOT membership pursuant to these expedited procedures are 
not entitled to become exerciser members of the CBOE. In response, on 
April 22, 2002, the CBOT began advising applicants for membership on 
the CBOT for the purpose of becoming exerciser members of the CBOE that 
such individuals must complete regular CBOT membership approval 
procedures. All individuals exercising since that date have complied 
with this requirement. The CBOE represents that during the several 
years that CBOT's

[[Page 66690]]

expedited membership approval procedures were in place, many 
individuals that were approved as CBOT members under expedited 
procedures did in fact exercise to become members of the CBOE. 
According to the CBOE, approximately 330 such individuals are currently 
engaged in activities as exerciser members of the CBOE. If the CBOE 
were now to revoke the good standing of these individuals, unless and 
until they are re-approved as CBOT members under regular procedures, 
this would be likely to impose significant hardships on these 
individuals and cause disruption to the CBOE's market.
    To avoid these results, the CBOE now proposes a further 
interpretation of its prior interpretation of the Exercise Right as 
reflected in the 1992 Agreement to provide that each individual who 
would have been a member in good standing of the CBOE on April 17, 
2002, pursuant to the Exercise Right, but for the fact that he or she 
was approved as a CBOT full member or full member delegate under 
expedited procedures and therefore does not possess the trading rights 
of a full member of CBOT, will nevertheless be recognized as a member 
of the CBOE in good standing, so long as that individual would possess 
all trading rights and privileges appurtenant to a CBOT full membership 
upon satisfaction of the CBOT's regular (not expedited) application 
process. Satisfaction of CBOT full membership would also include 
examination and approval requirements necessary for an individual to be 
in actual possession of all trading rights and privileges appurtenant 
to a CBOT full membership as defined in the 1992 Agreement.
    Any CBOE member in good standing who subsequently ceases to be a 
CBOE member in good standing for any reason and who thereafter 
reapplies to become a CBOE member pursuant to the Exercise Right, and 
any other individual who applies to become a member of CBOE pursuant to 
the Exercise Right after April 17, 2002, will be required to satisfy 
all applicable CBOT application, examination and approval requirements 
necessary for such individual to be in actual possession of all trading 
rights and privileges appurtenant to a CBOT full membership as defined 
in the 1992 Agreement. Notwithstanding the foregoing, if a CBOE 
exerciser member in good standing subsequently ceases to be a member of 
the CBOE in good standing, and he or she reapplies to become a member 
of the CBOE pursuant to the Exercise Right within six months of the 
date he or she ceased to a CBOE exerciser member, the individual may be 
reinstated as a member of the CBOE in good standing without having to 
satisfy the requirements of the CBOT necessary for such individual to 
be in actual possession of all trading rights and privileges 
appurtenant to a CBOT full membership as defined in the 1992 Agreement. 
The CBOE intends to provide a limited exception to the CBOE Rule 
3.16(b). The proposed interpretation, together with a proposed 
amendment to CBOE Rule 3.16 (b), constitutes the proposed rule change 
that is the subject of this filing. Below is the text of the proposed 
rule change. Additions are italicized.
* * * * *

Rule 3.16 Special Provisions Regarding Chicago Board of Trade Exerciser 
Memberships

    (a) Termination of Nontransferable Memberships. [No change]
    (a) Board of Trade Exercisers. For the purpose of entitlement to 
membership on the Exchange in accordance with Paragraph (a) of Article 
Fifth of the Certificate of Incorporation of the Exchange (``Article 
Fifth(b)'') the term ``member of the Board of Trade of the City of 
Chicago'' (the ``CBOT''), as used in Article Fifth(b), is interpreted 
to mean an individual who is either an ``Eligible CBOT Full Member'' or 
an ``Eligible CBOT Full Member Delegate,'' as those terms are defined 
in the Agreement entered into on September 1, 1992 (the ``1992 
Agreement'') between the CBOT and the Exchange, as further interpreted 
in accordance with that certain proposed rule change filed with the 
Securities and Exchange Commission as File No. SR-CBOE-2002-41, and 
shall not mean any other person. In order to permit Eligible CBOT Full 
Members and Eligible CBOT Full Member Delegates to participate in an 
offer, distribution or redemption of the kind referred to in the last 
two sentences of Paragraph 3(a) of the 1992 Agreement, and solely for 
such purpose, the Exchange agrees to waive all membership dues, fees 
and other charges and all qualification requirements, other than those 
that may be imposed by law, that may be applicable to the application 
for membership on the Exchange of each Eligible CBOT Full Member and 
Eligible CBOT Full Member Delegate who wishes to exercise the Exercise 
Right during the period commencing on the date the Exchange gives 
notice to the CBOT pursuant to Paragraph 3(b) of the 1992 Agreement and 
ending on the date such individual participates in such offer, 
distribution or redemption (as the case may be); provided, however, 
that (i) no Exerciser Member (as defined in the 1992 Agreement) for 
whom dues, fees and other charges and qualification requirements are 
waived in accordance with the foregoing shall have any rights as a 
member of the Exchange other than to participate in such offer, 
distribution or redemption, and (ii) the membership on the Exchange of 
each such Exerciser Member shall terminate immediately following the 
time such individual participates in such offer, distribution or 
redemption.
* * * * *

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 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 purpose of the proposed rule change is to provide a further 
interpretation of a prior interpretation of Article Fifth (b). Article 
Fifth (b) governs the right of all 1,402 full members of the CBOT to 
become members of the CBOE without having to purchase a separate CBOE 
membership. Article Fifth (b) has previously been interpreted on 
several occasions, including an interpretation made pursuant to an 
agreement between the CBOT and CBOE dated September 1, 1992. According 
to the CBOE, the 1992 Agreement states that only an individual who is 
an ``Eligible CBOT Full Member'' or an ``Eligible CBOT Full Member 
Delegate'' constitutes a CBOT member within the meaning of Article 
Fifth (b) and thus would be eligible to have an Exercise Right--that 
is, a right to be an exerciser member of the CBOE.
    The 1992 Agreement defines the terms ``Eligible CBOT Full Member'' 
and ``Eligible CBOT Full Member Delegate'' to require in each case that 
the individual must be in possession of ``all trading rights and 
privileges appurtenant to such CBOT Full Membership.''\5\ The 1992 
Agreement

[[Page 66691]]

defines the term ``all trading rights and privileges appurtenant to 
such CBOT Full Membership'' to mean ``(1) the rights and privileges of 
a CBOT Full Membership which entitle a holder or delegate to trade as 
principal and broker for others in all contracts traded on the CBOT, 
whether by open outcry, by electronic means, or otherwise, during any 
segment of a trading day when trading is authorized; and (2) every 
trading right or privilege granted, assigned or issued by CBOT after 
the effective date of this Agreement to holders of CBOT Full 
Memberships, as a class, but excluding any right or privilege which is 
the subject of an option granted, assigned or issued by CBOT to a CBOT 
Full Member and which is not exercised by such CBOT Full Member.''
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    \5\ According to the CBOE, the reference to ``such'' CBOT Full 
Membership describes the CBOT Full Membership owned or leased by the 
individual.
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    These provisions of the 1992 Agreement are reflected in the CBOT's 
rules and were adopted by the CBOT as required by the 1992 Agreement 
(referred to in that Agreement as the ``CBOT Rule Change''). The CBOT 
Rule Change may not be amended without the consent of CBOE. The CBOT 
Rule Change has not been amended, and is currently set forth in CBOT 
Rules 210.00 and 221.00(g).
    In 1999, without the knowledge or approval of the CBOE, the CBOT 
implemented certain expedited membership approval procedures applicable 
to those individuals who wished to become CBOT members for the sole 
purpose of exercising the right to become members of the CBOE pursuant 
to the Exercise Right, but who did not wish to be able to trade as 
members on the CBOT itself. Under these expedited procedures, the CBOT 
waived its normal application procedures and examination requirements 
for these individuals, and has relied on special delegated authority to 
approve their membership applications. Individuals approved for CBOT 
membership pursuant to these expedited procedures do not have any 
rights to trade as a member of the CBOT in any of the contracts traded 
on that exchange. Accordingly, such individuals cannot qualify as 
Eligible CBOT Full Members or Full Member Delegates for purposes of the 
interpretation of the Exercise Right reflected in the 1992 Agreement, 
and thus are not eligible to become exerciser members of the CBOE.
    The CBOE did not become aware of the expedited membership approval 
procedures until late 2001. On April 17, 2002, the CBOE informed the 
CBOT that individuals approved for CBOT membership pursuant to these 
expedited procedures would not be entitled to become exerciser members 
of the CBOE because they did not satisfy the requirements of Article 
Fifth(b) as it had previously been interpreted under the 1992 
Agreement. In response, on April 22, 2002, the CBOT began advising 
individuals who apply to become members of CBOT for the purpose of 
exercising to be members of the CBOE that such individuals must 
complete regular CBOT membership approval procedures in order to be 
able to exercise. The CBOE believes that all individuals exercising 
since that date have complied with this requirement.
    During the several years that the CBOT's expedited membership 
approval procedures were in place, many CBOT members, pursuant to the 
expedited procedures, exercised to become members of the CBOE. Without 
the CBOE having been aware of the adoption of these expedited 
membership procedures by the CBOT or having focused on the fact that 
these individuals did not meet the requirements of a valid exercise, 
these individuals were then approved by the CBOE as exerciser members. 
According to the CBOE, approximately 330 individuals who were approved 
as CBOT members under expedited procedures are currently engaged in 
conducting business as exerciser members of the CBOE. If the CBOE now 
refused to recognize these individuals as members of the CBOE in good 
standing, unless and until they are re-approved as CBOT members under 
procedures that give them full trading rights on the CBOT, the result 
would impose significant hardships on these individuals. Likewise, the 
CBOE believes that the removal of these individuals from the CBOE 
trading floor, even if only for a temporary period while they are re-
approved as members of the CBOT, would be disruptive to the CBOE 
itself.
    To avoid these harmful results, the CBOE has determined to 
interpret its prior interpretation of Article Fifth (b) of its 
Certificate of Incorporation so as to allow each individual who would 
have been an exerciser member in good standing of the CBOE on April 17, 
2002, but for the fact that he or she was approved as a CBOT member or 
delegate under expedited procedures, to be recognized as a member of 
CBOE in good standing so long as that individual would be able to have 
all trading rights and privileges appurtenant to a CBOT membership, 
including satisfying full CBOT membership or delegate application, 
examination and approval requirements. Any such individual who 
subsequently ceases to be an exerciser member in good standing for any 
reason and who thereafter reapplies to become an exerciser member, and 
any other individual who applies to become an exerciser member of the 
CBOE after April 17, 2002, as a condition of becoming an exerciser 
member of the CBOE, will be required to satisfy all applicable CBOT 
application, examination and approval requirements necessary for such 
individual to be in actual possession of ``all trading rights and 
privileges appurtenant to such CBOT Full Membership'' as defined in the 
1992 Agreement. Notwithstanding the foregoing, if an individual who was 
an exerciser member of the CBOE in good standing pursuant to the first 
sentence of this paragraph subsequently ceases to be an exerciser 
member in good standing, and if the same individual reapplies to become 
an exerciser member of the CBOE within six months of the date he or she 
ceased to be an exerciser member in good standing, the individual may 
be reinstated as an exerciser member in good standing without having to 
satisfy the requirements of the CBOT necessary for such individual to 
be in actual possession of all trading rights and privileges 
appurtenant to a CBOT full membership as defined in the 1992 Agreement.
    This interpretation will provide a limited exception to the 
requirement of the interpretation reflected in the 1992 Agreement that 
all exercisers must be in possession of ``all trading rights and 
privileges appurtenant to such CBOT Full Membership.'' It has the 
effect of ``grandfathering'' those individuals who were exerciser 
members of the CBOE in good standing on April 16, 2002, to the extent 
described above, notwithstanding that they were approved as members of 
the CBOT under expedited procedures and thus do not possess the right 
to trade as members on the CBOT. The CBOE represents that this 
interpretation will have no effect on the application of the 
requirements of the 1992 Agreement to individuals who were not 
exerciser members on April 17, 2002, and who seek to become exerciser 
members after that date.
2. Statutory Basis
    The CBOE believes that the proposed rule change is consistent with 
and furthers the objectives of section 6(b)(5) of the Act \6\ in 
particular, in that it constitutes an interpretation of and an 
amendment to the rules of the Exchange that are designed to promote 
just and equitable principles of trade, to perfect the mechanisms of a 
free and open

[[Page 66692]]

market, and to protect investors and the public interest.
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    \6\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The 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 Exchange 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. 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, is 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 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 at 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-2002-41 and should be 
submitted by November 22, 2002.

IV. Commission's Findings and Order Granting Accelerated Approval of 
Proposed Rule Change

    After careful review, the Commission finds that the proposed rule 
change is consistent with the requirements of section 6(b)(5) of the 
Act,\7\ and the rules and regulations thereunder applicable to a 
national securities exchange.\8\ Specifically, the Commission believes 
that this proposal, which provides a further interpretation of the 
Exercise Right, as provided in Article Fifth (b) and CBOE Rule 3.16(b), 
should clarify that the approximately 330 exerciser members of the 
CBOE, who became CBOT members pursuant to the CBOT's expedited 
membership approval procedures, will continue to be recognized by the 
CBOE as exerciser members in good standing of the CBOE, so long as 
these exerciser members would posses all trading rights and privileges 
appurtenant to a CBOT membership, including satisfying full CBOT 
membership or delegate application, examination, and approval 
requirements. Further, the Commission believes that the proposal also 
clarifies that the CBOE will reinstate as an exerciser member in good 
standing any CBOE exerciser member, who became a CBOT member by the 
CBOT's expedited membership approval procedures and who subsequently 
ceases to be an exerciser member in good standing for any reason but 
thereafter reapplies to become an exerciser member of the CBOE, 
pursuant to the Exercise Right within six months of the date he or she 
ceased to be a CBOE exerciser member.
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    \7\ 15 U.S.C. 78f(b)(5).
    \8\ In approving this rule, the Commission notes that it has 
also considered the proposed rule's impact on efficiency, 
competition, and capital formation. 15 U.S.C. 78c(f).
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    The Commission notes that this proposed interpretation as described 
above by the CBOE provides a limited exception to CBOE Rule 3.16(b), 
which interprets Article Fifth (b) to include ``Eligible CBOT Full 
Member[s]'' and ``Eligible CBOT Full Member Delegate[s],'' as defined 
in the 1992 Agreement between the CBOE and CBOT. The Commission 
believes that the proposed interpretation has no investor protection 
implications because all CBOE members, including exerciser members, 
must nevertheless comply with the requirements of the Act and CBOE 
rules in order to utilize their trading privileges on the CBOE floor. 
Also, although the CBOT granted expedited approval to these 330 
individuals, the CBOE conducted a full review of these 330 members 
before they were permitted to trade on the CBOE. In addition, the 
Commission believes that refusing to recognize these certain 
individuals as exerciser members of the CBOE in good standing unless 
and until they were re-approved as CBOT members under its regular 
membership procedures would impose significant hardship on these 
individuals and cause disruption to the CBOE itself. In order to avoid 
such harmful results, the Commission believes that the proposed 
interpretation described herein and the proposed rule change are 
appropriate, in that the CBOE is interpreting its requirements for 
certain CBOT members (exerciser members) to become and remain members 
of the CBOE. For these reasons, the Commission finds good cause for 
approving the proposed rule change, as amended, prior to the thirtieth 
day after the date of publication of notice in the Federal Register.
    It is Therefore Ordered, pursuant to section 19(b)(2) of the 
Act,\9\ that the proposed rule change (SR-CBOE-2002-41), as amended, is 
approved on an accelerated basis.
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    \9\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to the 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. 02-27805 Filed 10-31-02; 8:45 am]
BILLING CODE 8010-01-P