[Federal Register Volume 69, Number 138 (Tuesday, July 20, 2004)]
[Rules and Regulations]
[Pages 43295-43299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16441]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 230

[Release No. 33-8442; File No. S7-17-04]
RIN 3235-AJ03


Covered Securities Pursuant to Section 18 of the Securities Act 
of 1933

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: The Securities and Exchange Commission (``Commission'') is 
adopting an amendment to a rule under section 18 of the Securities Act 
of 1933 (``Securities Act''). The purpose of the amendment is to 
designate options listed on the International Securities Exchange, Inc. 
(``ISE'') as covered securities. Covered securities under section 18 of 
the Securities Act are exempt from State law registration requirements.

DATES: Effective Date: August 19, 2004.

FOR FURTHER INFORMATION CONTACT: Kelly Riley, Assistant Director, (202) 
942-0752, Gordon Fuller, Counsel to the Assistant Director, (202) 942-
0792 or Brian Trackman, Attorney, (202) 942-7951, Division of Market 
Regulation, Securities and Exchange Commission, 450 Fifth Street, NW., 
Washington, DC 20549-1001.

SUPPLEMENTARY INFORMATION:

I. Introduction

    In 1996, Congress amended section 18 of the Securities Act to 
exempt from State registration requirements securities listed, or 
authorized for listing, on the New York Stock Exchange (``NYSE''), the 
American Stock Exchange (``Amex''), or the National Market System of 
the Nasdaq Stock Market (``Nasdaq/NMS'') (collectively, the ``Named 
Markets''), or any national securities exchange determined by the 
Commission to have substantially similar listing standards to those 
markets.\1\ More specifically, section 18(a) of the Securities Act 
provides that ``no law, rule, regulation, or order, or other 
administrative action of any State * * * requiring, or with respect to, 
registration or qualification of securities * * * shall directly or 
indirectly apply to a security that--(A) is a covered security.''\2\ 
Covered securities are defined in section 18(b)(1) of the Securities 
Act to include those securities listed, or authorized for listing, on 
the Named Markets, or securities listed, or authorized for listing on a 
national securities exchange (or tier or segment thereof) that has 
listing standards that the Commission determines by rule are 
``substantially similar'' to the Named Markets.\3\
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    \1\ See National Securities Markets Improvement Act of 1996, 
Public Law No. 104-290, 110 Stat. 3416 (October 11, 1996).
    \2\ 15 U.S.C. 77r(a).
    \3\ 15 U.S.C. 77r(b)(1). In addition, securities of the same 
issuer that are equal in seniority or senior to a security listed on 
a Named Market or national securities exchange designated by the 
Commission as having substantially similar listing standards to a 
Named Market are covered securities for purposes of section 18 of 
the Securities Act. 15 U.S.C. 77r(b)(1)(C).
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    The Commission adopted Rule 146 pursuant to section 18(b)(1)(B) of 
the Securities Act.\4\ Rule 146(b) lists those national securities 
exchanges, or segments or tiers thereof that the Commission has 
determined to have listing standards substantially similar to those of 
the Named Markets, and thus securities listed on such exchanges are 
covered securities.\5\ The ISE has petitioned the Commission to amend 
Rule 146(b) to determine that its listing standards for securities 
listed on the ISE are substantially similar to those of the Named 
Markets and, accordingly, that securities listed pursuant to such 
listing

[[Page 43296]]

standards are covered securities for purposes of section 18(b) of the 
Securities Act.\6\
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    \4\ Securities Act Release No. 7494, Securities Exchange Act 
Release No. 39542 (January 13, 1998), 63 FR 3032 (January 21, 1998).
    \5\ 17 CFR 230.146(b).
    \6\ See letter from Michael Simon, Senior Vice President and 
General Counsel, ISE, to Jonathan G. Katz, Secretary, Commission, 
dated October 9, 2003.
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    On March 22, 2004, the Commission issued a release proposing to 
amend Rule 146(b) to designate options listed on the ISE as covered 
securities for purposes of section 18(a) of the Securities Act.\7\ The 
Commission solicited comment on the proposal, and received one comment 
letter in response to the proposal.\8\
    After careful comparison, the Commission concludes that the current 
listing standards of the ISE are substantially similar to the listing 
standards of the Amex. Accordingly, the Commission today is amending 
Rule 146(b) to designate options listed on the ISE as covered 
securities under section 18(b)(1) of the Securities Act. Amending Rule 
146(b) to include options listed on ISE as covered securities will 
exempt those securities from State registration requirements as set 
forth under section 18(a) of the Securities Act.
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    \7\ Securities Act Release No. 8404, 69 FR 16154 (March 26, 
2004) (``Proposing Release'').
    \8\ See letter from William H. Navin, Executive Vice President 
and General Counsel, Options Clearing Corporation, to Jonathan G. 
Katz, Secretary, Commission, dated April 23, 2004 (``OCC Letter'').
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II. Background

    In 1998, the Chicago Board Options Exchange, Inc. (``CBOE''), 
Pacific Exchange, Inc. (``PCX''), the Philadelphia Stock Exchange, Inc. 
(``Phlx''), and the Chicago Stock Exchange (``CHX'') petitioned the 
Commission to adopt a rule determining that specified portions of the 
exchanges' listing standards were substantially similar to the listing 
standards of the Named Markets.\9\ In response to the petitions, and 
after extensive review of the petitioners' listing standards, the 
Commission adopted Rule 146(b), determining that the listing standards 
of the CBOE, Tier 1 of the PCX, and Tier 1 of the Phlx were 
substantially similar to those of the Named Markets and that securities 
listed pursuant to those standards would be deemed covered securities 
for purposes of section 18 of the Securities Act.\10\
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    \9\ See letter from David P. Semak, Vice President, Regulation, 
PCX, to Arthur Levitt, Jr., Chairman, Commission, dated November 15, 
1996; letter from Alger B. Chapman, Chairman, CBOE, to Jonathan G. 
Katz, Secretary, Commission, dated November 18, 1996; letter from J. 
Craig Long, Esq., Foley & Lardner, Counsel to CHX, to Jonathan G. 
Katz, Secretary, Commission, dated February 4, 1997; and letter from 
Michele R. Weisbaum, Vice President and Associate General Counsel, 
Phlx, to Jonathan G. Katz, Secretary, Commission, dated March 31, 
1997.
    \10\ Securities Act Release No. 7494, Securities Exchange Act 
Release No. 39542 (January 13, 1998), 63 FR 3032 (January 21, 1998). 
Review of CHX's listing program, including its listing standards and 
operations, is ongoing. CHX has petitioned the Commission to amend 
Rule 146(b) to include Tier 1 of CHX's listing standards. See letter 
from Paul B. O'Kelly, Executive Vice President, Market Regulation 
and Legal, CHX, to Jonathan G. Katz, Secretary, Commission, dated 
May 17, 2000.
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    In its petition, ISE has asked the Commission to amend Rule 146(b) 
based on a determination that its listing standards are substantially 
similar to those of the Named Markets so that securities listed on ISE 
will be ``covered securities'' under section 18(b) of the Securities 
Act.\11\ The ISE currently lists only standardized options issued and 
guaranteed by the Options Clearing Corporation (``OCC'') that are 
already listed on at least one of the other options exchanges named in 
section 18(b)(1)(A) of the Securities Act or Rule 146--i.e., Amex, 
CBOE, PCX and Phlx. These options are by definition ``covered 
securities'' for purposes of section 18 of the Securities Act. ISE, 
however, stated that it may in the future list standardized options 
issued and guaranteed by OCC that are not listed on one of the other 
options exchanges specified in section 18(b)(1)(A) of the Securities 
Act or Rule 146. Accordingly, the ISE requested that the Commission 
amend Rule 146(b) to designate securities listed on ISE as covered 
securities for purposes of section 18 of the Securities Act.
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    \11\ The Commission notes that, currently, the ISE lists only 
standardized options and, accordingly, only has listing standards 
for equity and index options.
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III. Comment Letters

    As noted above, the Commission received one comment letter in 
response to the proposed rule amendment, which supported ISE's petition 
to amend Rule 146(b).\12\ The OCC Letter noted that designating options 
listed on the ISE as ``covered securities'' would place the ISE on an 
equal competitive footing with other options exchanges whose listed 
securities are presently exempt from State blue sky laws. The OCC 
agreed with the Commission's preliminary view that ISE's selection and 
maintenance requirements for underlying securities are substantially 
similar to those of Amex. Finally, in response to the Commission's 
request for comment on whether the absence of an express provision in 
ISE's rules that it will monitor news sources for information 
indicating that an underlying security no longer meets the requirements 
for continued approval should impact the Commission's determination of 
whether ISE's rules are ``substantially similar'' to Amex's rules, the 
OCC Letter explained that the absence of such a provision in the ISE 
maintenance requirements is a difference without substance. The OCC 
expressed its view that, because the ISE is obligated under sections 6 
and 19(g) of the Securities Exchange Act of 1934 (``Exchange Act'') to 
enforce its rules, including its maintenance requirements, the ISE is 
required to monitor for corporate events that render a security 
ineligible to underlie ISE listed options.
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    \12\ See supra note 8.
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IV. Discussion

    The Commission has reviewed the ISE listing standards for options 
traded on the ISE and determines that they are substantially similar to 
those of Amex. The Commission notes that, under section 18(b)(1)(A) of 
the Securities Act, the Commission has the authority to compare the 
listing standards of a petitioner with those of either the NYSE, Amex, 
or Nasdaq/NMS. Because Amex is the only Named Market that lists 
standardized options, the Commission compared ISE's listing standards 
to the listing standards applicable to options traded on the Amex.
    In addition, the Commission has interpreted the ``substantially 
similar'' standard to require listing standards at least as 
comprehensive as those of the Named Markets.\13\ To the extent that the 
ISE's listing standards are stricter than those of Amex, the Commission 
may determine that they meet the substantially similar standard. 
Finally, the Commission notes that differences in language or approach 
do not necessarily lead to a determination that the listing standards 
of the petitioner are not substantially similar to those of a Named 
Market.
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    \13\ Securities Act Release No. 7422, Securities Exchange Act 
Release No. 38728 (June 9, 1997), 62 FR 32705 (June 17, 1997).
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    The Commission reviewed ISE's listing standards for each class of 
security it trades, specifically equity options and index options. 
Using the approach outlined above, the Commission concludes that 
currently the listing standards of the ISE are substantially similar to 
the listing standards of the Amex.
    With respect to equity options, the ISE listing and maintenance 
requirements closely track the corresponding Amex provisions.\14\ 
Specifically, the ISE's original listing requirements pertaining to the 
public

[[Page 43297]]

float, distribution of shares and trading volume of the underlying 
security are identical to those of the Amex.\15\ The ISE and Amex also 
impose the same initial listing and maintenance requirements for 
options on American Depositary Receipts (``ADRs''), International 
Funds, Restructured Companies, Exchange-Traded Fund shares 
(``ETFs''),\16\ and Trust Issued Receipts.\17\ The only difference, 
identified in the Proposing Release, between the ISE and Amex original 
listing standards was a provision in the Amex rules that permits Amex 
members to propose the listing of an option that otherwise meets 
established listing requirements. ISE rules do not contain a similar 
provision. The Commission has determined that because this difference 
does not impact the quality of ISE's listing standards, it does not 
render ISE's listing standards less comprehensive than Amex's listing 
standards.\18\ Further, as noted above, differences in language or 
approach of listing standards are not dispositive.
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    \14\ Compare ISE Rules 502 and 503 with Amex Rules 915 and 916.
    \15\ See id. The Commission notes that no exchange has standards 
establishing qualifications for issuers of exchange-traded options 
because all options are issued by the OCC. All options issued by the 
OCC have the equal protection of OCC's backup system of clearing 
members' obligations, margin deposits and clearing funds.
    \16\ ETFs are defined under Amex Rule 915 to include ``shares or 
other securities that are principally traded on a national 
securities exchange or through the facilities of a national 
securities association and reported as a national market security, 
and that represent an interest in a registered investment company 
organized as an open-end management investment company, a unit 
investment trust or a similar entity which holds securities 
constituting or otherwise based on or representing an investment in 
an index or portfolio of securities. * * *'' See Amex Rule 915 
Commentary .06. These securities are referred to as ``Fund Shares'' 
in the ISE rules. See ISE Rule 502(h).
    \17\ Compare subsections (c), (f)-(h), and (j) of ISE Rule 502 
with Subsections .03-.07 of Amex Rule 915, and Subsections (g)-(j) 
of ISE Rule 503 with Subsections .06-.09 of Amex Rule 916.
    \18\ The Proposing Release contains a more detailed description 
of the Commission's analysis comparing ISE's listing and maintenance 
standards for equity options to those of Amex. See Securities Act 
Release No. 8404 (March 22, 2004), 69 FR 16154 (March 26, 2004).
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    With regard to the maintenance standards for equity options, the 
ISE's maintenance requirements for its equity options substantively 
track those of the Amex.\19\ With respect to the underlying security of 
an equity option, the ISE and Amex have identical maintenance 
requirements regarding the number of publicly traded shares, their 
distribution, trade volumes and market price. Failure to meet any one 
of these criteria may result in delisting the option.\20\
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    \19\ Compare ISE Rule 503 with Amex Rule 916.
    \20\ See ISE Rule 503.
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    Both Amex and ISE may withdraw approval for options trading if the 
issuer of an underlying security that is principally traded on a 
national securities exchange is delisted from trading on that exchange 
and neither meets National Market System (``NMS'') criteria nor is 
traded through the facilities of a national securities association. 
Amex and ISE may also withdraw approval for options trading on a 
security that is principally traded through facilities of a national 
securities association, if such security is no longer designated as an 
NMS security.\21\ Likewise, the ISE and Amex impose the same 
maintenance requirements for continued listing of options on ADRs, 
ETFs, Trust Issued Receipts, and Holding Company Depositary 
Receipts.\22\
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    \21\ See ISE Rule 503(b)(6); Amex Rule 916 Commentary .01(6).
    \22\ Compare subsections (g)-(j) of ISE Rule 503 with 
subsections .06-.09 of Amex Rule 916.
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    The Commission noted in the Proposing Release that ISE did not have 
an express provision requiring the ISE to monitor on a daily basis news 
sources for information of corporate actions, which may indicate that 
an underlying security no longer meets requirements for continued 
approval, while Amex rules did have this express provision. Because ISE 
is obligated under sections 6 and 19(g) of the Exchange Act to comply 
with its own rules, which necessitates ISE monitoring corporate events 
that have a bearing on whether an underlying security satisfies ISE's 
listing standards, the Commission finds that the absence of such 
express provision does not represent a significant enough difference 
between the ISE and the Amex to change our conclusion that their 
listing standards are substantially similar. The Commission notes that 
the OCC supported this conclusion by stating that ``[t]he fact that 
ISE's rules do not describe specifically how ISE will conduct such 
monitoring does not mean that ISE's maintenance standards are less 
comprehensive.'' \23\
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    \23\ See supra note 8.
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    With respect to index options, the Commission finds that the ISE 
and the Amex have substantially similar requirements for stock indices 
that may underlie index options. With regard to broad-based index 
options, both the ISE and the Amex require that the listing of a class 
of options on a new underlying index must be filed with the Commission 
as a proposed rule change under section 19(b) of the Exchange Act.\24\ 
Furthermore, the Commission finds that the exchanges have substantially 
similar provisions for the designation of narrow-based indices as 
eligible to underlie index options, including rules that allow certain 
options to be traded on certain narrow-based indices using an expedited 
procedure, which involves submitting to the Commission a Form 19b-4(e) 
under Rule 19b-4(e) of the Exchange Act.\25\ The listing and 
maintenance requirements for component securities comprising narrow-
based index options listed on the ISE appear in all material respects 
to be substantially similar to those of the Amex.\26\ Specifically, the 
ISE and the Amex appear to have substantially similar criteria for 
index components relating to market value, trading volume, calculation 
of the index, and inclusion of non-U.S. component securities or 
ADRs.\27\ In addition, the Commission believes that ISE and Amex 
requirements for the index regarding weighting, index components, 
rebalancing, information barriers maintained by broker-dealers, and the 
dissemination of index values are substantially similar.\28\ Likewise, 
the ISE rules setting forth position and exercise limits, margin 
requirements, and settlement terms applicable to index options are 
substantially similar to those of the Amex.\29\ Accordingly, the 
Commission has determined that the listing standards of the ISE and the 
Amex for index options are substantially similar.
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    \24\ See ISE Rule 2002(a), Amex Rule 901C.01.
    \25\ Compare ISE Rule 2002(b) with Amex Rule 901C.02.
    \26\ Compare ISE Rules 502, 2002(c) with Amex Rules 915, 
901C.02(d).
    \27\ Compare ISE Rule 2002(b) with Amex Rule 901C.02.
    \28\ Compare ISE Rules 2002 and 2003 with Amex Rule 901C.
    \29\ Compare ISE Rules 413, 417, 418, 709, 1102, 2004-2010, 2012 
with Amex Rules 462, 903C, 904C, 905C, 909C, 916C, 918C, 951C, and 
980C. The ISE and Amex's disclaimer provisions relating to index 
options are also substantially similar. Compare ISE Rule 2011 with 
Amex Rule 902C.
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    Therefore, the Commission has determined that the ISE's listing 
standards are substantially similar to a Named Market and is amending 
Rule 146(b) to reflect this determination, designating options listed 
on the ISE as ``covered securities'' for purposes of section 18 of the 
Securities Act.
    The Commission notes that designating ISE options as covered 
securities under Rule 146(b)(1) subjects ISE's listing standards to 
Rule 146(b)(2). Rule 146(b)(2) under the Securities Act conditions the 
designation of securities as ``covered securities'' under Rule 
146(b)(1) on the identified exchange's listing standards continuing to 
be substantially similar to those of the

[[Page 43298]]

Named Markets. In essence, Congress intended for the Commission to 
monitor the listing and maintenance requirements of the exchanges, 
consistent with our supervisory responsibility under the Exchange Act, 
to evaluate the continued integrity of these markets and the protection 
of investors. Thus, under Rule 146(b)(2), the designation of its 
securities as covered securities is conditioned on the ISE maintaining 
listing standards that are substantially similar to those of the Named 
Markets.

V. Consideration of Promotion of Efficiency, Competition and Capital 
Formation

    As required under the Securities Act,\30\ the Commission has 
considered the proposed rule's impact on efficiency, competition and 
capital formation. Options exchanges are prohibited by Commission rule 
from prohibiting, conditioning or limiting the listing of any stock 
options class first listed on another options exchange.\31\ 
Nevertheless, options exchanges do compete for listings of non-equity 
options such as index options. The Commission believes that designating 
ISE-listed options as ``covered securities'' by amending Rule 146(b) 
will permit ISE to better compete for new options and listings, which 
will increase competition and, potentially, the overall liquidity of 
the U.S. securities markets. The Commission does not, however, believe 
that the amendment to Rule 146(b) will have any impact--positive or 
negative--on capital formation because options are not used by issuers 
to raise money. The Commission solicited comment on the proposed 
amendment's effect on competition, efficiency and capital formation. No 
comments were received. Thus, the Commission concludes that the 
proposed amendment to Rule 146(b) would promote efficiency and 
competition.
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    \30\ 15 U.S.C. 77b(b).
    \31\ See 17 CFR 240.19c-5.
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VI. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 does not apply because the 
proposed amendment to Rule 146(b) does not impose recordkeeping or 
information collection requirements or other collection of information, 
which require the approval of the Office of Management and Budget under 
44 U.S.C. 3501 et seq.

VII. Cost and Benefits of Proposed Rulemaking

    Congress amended section 18 of the Securities Act to exempt covered 
securities from State registration requirements. Covered securities are 
those listed on the Named Markets or any other national securities 
exchange determined by the Commission to have substantially similar 
listing standards to the Named Markets.\32\ Consistent with statutory 
authority, the Commission has determined that the listing standards of 
the ISE are substantially similar to those of the Amex, the only Named 
Market that lists standardized options. Options listed on the ISE are 
therefore covered securities subject only to Federal regulation.
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    \32\ 15 U.S.C. 77r(b)(1)(B).
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    By exempting options listed on ISE from State law registration 
requirements, the Commission expects that the listing process will 
become easier by avoiding duplicative regulation. Moreover, we also 
expect adoption of the rule to minimize the administrative burden ISE 
and the OCC face inasmuch as compliance with State registration 
requirements is preempted.
    The Commission also believes that the amendment to Rule 146(b) will 
permit ISE to compete with other markets whose options are exempt from 
State registration requirements for new options products and listings. 
This result has the potential to enhance competition and liquidity, 
thus benefiting market participants and the public.
    The Commission does not believe that there are any significant 
costs to investors associated with the preemption of State registration 
requirements for options listed with the ISE. The Commission notes that 
there may be some cost to investors through the loss of the benefits of 
State registration and oversight, although the cost is difficult to 
quantify and, in any event, is unlikely to be significant. Furthermore, 
we believe that Congress contemplated this potential cost in relation 
to the economic benefits of exempting covered securities from State 
regulation. The Commission solicited comment as to the costs and 
benefits associated with the proposed amendment. No comments were 
received.

VIII. Regulatory Flexibility Act Certification

    In the Proposing Release,\33\ the Commission certified, pursuant to 
section 605(b) of the Regulatory Flexibility Act,\34\ that amending 
Rule 146(b) would not have a significant economic impact on a 
substantial number of small entities. The Commission solicited comment 
as to the nature of any impact on small entities, including empirical 
data to support the extent of such impact costs and benefits associated 
with the proposed amendment. No comments were received.
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    \33\ See supra note 7.
    \34\ 5 U.S.C. 605(b).
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IX. Statutory Authority

    The Commission is amending Rule 146(b) pursuant to the Securities 
Act of 1933 (15 U.S.C. 77a et seq.), particularly sections 18(b)(1)(B) 
and 19(a) (15 U.S.C. 77r(b)(1)(B) and 77s(a)).

List of Subjects in 17 CFR Part 230

    Securities.

Text of the Rule

0
For the reasons set forth in the preamble, title 17, chapter II of the 
Code of Federal Regulations is amended as follows:

PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933

0
1. The authority citation for part 230 continues to read, in part, as 
follows:

    Authority: 15 U.S.C. 77b, 77c, 77d, 77f, 77g, 77h, 77j, 77r, 
77s, 77z-3, 77sss, 78c, 78d, 78j, 78l, 78m, 78n, 78o, 78t, 78w, 
78ll(d), 78mm, 79t, 80a-8, 80a-24, 80a-28, 80a-29, 80a-30, and 80a-
37, unless otherwise noted.
* * * * *

0
2. Section 230.146 is amended by revising paragraphs (b)(1)(ii), 
(b)(1)(iii), and (b)(2) and by adding paragraph (b)(1)(iv) as follows:


Sec.  230.146  Rules under section 18 of the Act.

* * * * *
    (b) * * *
    (1) * * *
    (i) * * *
    (ii) Tier I of the Philadelphia Stock Exchange, Incorporated;
    (iii) The Chicago Board Options Exchange, Incorporated; and
    (iv) Options listed on the International Securities Exchange, 
Incorporated.
    (2) The designation of securities in paragraphs (b)(1)(i) through 
(iv) of this section as covered securities is conditioned on such 
exchanges' listing standards (or segments or tiers thereof) continuing 
to be substantially similar to those of the NYSE, Amex, or Nasdaq/NMS.

    Dated: July 14, 2004.


[[Page 43299]]


    By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 04-16441 Filed 7-19-04; 8:45 am]
BILLING CODE 8010-01-P