[Federal Register Volume 72, Number 168 (Thursday, August 30, 2007)]
[Notices]
[Pages 50133-50148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-17165]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-56311; File No. SR-CBOE-2006-99]


Self-Regulatory Organizations; Chicago Board Options Exchange, 
Incorporated; Notice of Filing of a Proposed Rule Change and Amendment 
No. 1 Thereto Related to FLEX Options Trading

August 23, 2007.
    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 November 27, 2006, the Chicago Board Options Exchange, 
Incorporated (``Exchange'' or ``CBOE'') filed with the Securities and 
Exchange Commission (``Commission'') the proposed rule change as 
described in Items I, II, and III below, which Items have been 
substantially prepared by the Exchange. On August 17, 2007, CBOE filed 
Amendment No. 1 to the proposed rule change.\3\ The Commission is 
publishing this notice to solicit comments on the proposed rule change, 
as amended, from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ In Amendment No. 1, the Exchange replaced the proposed rule 
change in its entirety.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to adopt rules to provide for the trading of 
Flexible Exchange Options (``FLEX Options'') \4\ on the Exchange's new 
FLEX Hybrid Trading System platform and to make certain corresponding 
revisions to its existing open-outcry based FLEX RFQ System platform. 
The text of the proposed rule change is available on the Exchange's Web 
site (http://www.cboe.org/legal), at CBOE, and at the Commission's 
Public Reference Room.\5\
---------------------------------------------------------------------------

    \4\ FLEX Options provide investors with the ability to customize 
basic option features including size, expiration date, exercise 
style, and certain exercise prices.
    \5\ The Exchange notes that unrelated changes are being proposed 
to the text of Rule 24A.7 in a separate rule filing. See Securities 
Exchange Act Release No. 56191 (August 2, 2007), 72 FR 44894 (August 
9, 2007) (SR-CBOE-2007-79). If that rule filing becomes effective 
before this instant rule filing, the Exchange intends to submit an 
amendment to reflect conforming changes to the text to Rules 24A.7 
and 24A.8, as well as proposed Rules 24B.7 and 24B.8. Telephone 
conversation between Jennifer Lamie, Assistant General Counsel, 
CBOE, and Terri Evans, Special Counsel, Division of Market 
Regulation (``Division''), Commission on August 20, 2007.
---------------------------------------------------------------------------

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, 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 those statements may be examined at the places specified in 
Item IV below. The Exchange has prepared summaries, 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
i. Description of the FLEX Hybrid Trading System
    Currently, FLEX Options are traded on the Exchange through an open-
outcry-based, Request for Quotes (``RFQ'') process (referred to herein 
as the ``FLEX RFQ System'' platform). The purpose of the proposed rule 
change is to amend Exchange rules to provide for an alternate framework 
to trade FLEX

[[Page 50134]]

Options on the CBOE using a ``hybrid'' platform (referred to herein as 
the ``FLEX Hybrid Trading System'' platform or the ``System''), which 
incorporates both open outcry and electronic trading functionality. 
Some key features of the new FLEX Hybrid Trading System platform are 
the following:
     Method of Operation: On the new hybrid platform, FLEX 
Option transactions could take place either through use of an open 
outcry RFQ process similar to the existing FLEX RFQ System process or 
through use of a new, Internet- and API-based, electronic RFQ platform. 
In addition, a new feature of the FLEX Hybrid Trading System will allow 
FLEX Orders to be entered and traded via an electronic book (the 
``Book'').
     Access: The new FLEX Hybrid Trading System platform will 
be available for the entry of RFQs, FLEX Quotes, and FLEX Orders, and 
the execution of trades resulting therefrom, of approved members. An 
approved member is any Exchange member that has been approved by the 
Exchange to use the FLEX Hybrid Trading System. This group of FLEX-
eligible members are collectively referred to as ``FLEX Traders.'' \6\
---------------------------------------------------------------------------

    \6\ In addition, as discussed further below, the Exchange will 
permit non-member users to be provided electronic access, through 
sponsoring members, to enter and execute orders on the FLEX Hybrid 
Trading System platform.
---------------------------------------------------------------------------

     Market-Maker Participation: One category of FLEX Traders 
are FLEX Market-Makers, who will be appointed to one or more classes 
pursuant to proposed Rule 24B.9. As with the existing FLEX rules, there 
are two types of FLEX Market-Makers: A FLEX Appointed Market-Maker and 
a FLEX Qualified Market-Maker (unless specified, or unless the context 
requires otherwise, the term ``FLEX Market-Maker'' refers to both FLEX 
Appointed Market-Makers and FLEX Qualified Market-Makers). FLEX Market-
Maker appointments and related market-making obligations, and changes 
proposed to the existing rule requirements, are discussed further 
below.
    CBOE believes that enhancing its FLEX trading facilities to allow 
for a hybrid trading platform alternative is important to the 
Exchange's efforts to create a market that provides members and 
investors interested in FLEX-type options with an improved but 
comparable alternative to the over-the-counter (``OTC'') market in 
customized options. By enhancing CBOE systems to allow for a FLEX 
Hybrid Trading System platform, market participants will have greater 
flexibility in determining the means with which to execute their 
customized options in an exchange environment, thus making it a more 
attractive alternative to the OTC market. CBOE believes market 
participants benefit from being able to trade customized options in an 
exchange environment in several ways, including, but not limited to the 
following: (1) Enhanced efficiency in initiating and closing out 
positions; (2) increased market transparency; and (3) heightened 
contra-party creditworthiness due to the role of The Options Clearing 
Corporation (``OCC'') as issuer and guarantor of FLEX Options.
    Given the design of FLEX Options to compete with the OTC market, 
the Exchange notes that the existing user base for trading FLEX Options 
includes both institutional investors and high net worth individuals. 
The Exchange also notes that, when the existing FLEX Rules were 
originally adopted in 1993, the Exchange put in place certain FLEX 
contract specification requirements that were designed to limit 
participation in FLEX Options to these types of sophisticated 
investors, rather than retail investors. These safeguards, which relate 
to minimum value size requirements, have been revised over time and 
will exist for FLEX Options traded on the proposed FLEX Hybrid Trading 
System. Thus, whether executed through the new electronic RFQ process 
or open outcry RFQ process (or through entering a FLEX Order to hit the 
new FLEX Book), the minimum value size requirements for a resulting 
FLEX transaction will be the same as currently exists today for trading 
on the existing FLEX RFQ System platform. Additionally, the minimum 
value size of FLEX Quotes that are entered by FLEX Traders in response 
to an underlying RFQ (and, correspondingly, the minimum value size of 
resting FLEX Orders (undecremented size) that are entered by FLEX 
Traders to provide liquidity for incoming FLEX Orders that hit the 
Book) will be the same as currently exists today for trading on the 
existing FLEX RFQ System platform. In maintaining these safeguards for 
trading on the proposed FLEX Hybrid Trading System, the Exchange is 
cognizant of the desire to continue to provide the requisite amount of 
investor protection that the safeguards were originally designed to 
achieve.
    In addition, given the customized nature of FLEX Options, the 
sophistication of the target FLEX trading community, and the desire to 
effectively compete with the OTC market (which is not subject to the 
same restrictions and requirements of exchange-based trading), CBOE has 
also designed its FLEX trading rules in a manner that is distinct from 
its trading rules for traditional options in order to create incentives 
for members and sophisticated investors to bring larger-sized orders to 
the Exchange, rather than the OTC market, and to provide deep liquid 
markets for investors in these customized products. As described below, 
these distinctions include: (i) Allowing for certain crossing 
participation entitlements and FLEX Appointed Market-Maker 
participation entitlements to be applied without yielding to other 
trading interest (including that of public customers, broker-dealers 
and FLEX Market-Makers) provided certain conditions are satisfied 
(including the requirements of Section 11(a)(1) of the Act \7\ and the 
rules promulgated thereunder); (ii) allowing for certain modified 
market making obligations; and (iii) applying separate position limit 
and exercise limit requirements to FLEX Options. These principles will 
be maintained in the proposed FLEX Hybrid Trading System, though 
certain modifications are being proposed.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78k(a).
---------------------------------------------------------------------------

    For the reasons noted herein, CBOE believes that the proposed 
structure of its FLEX Hybrid Trading System platform is appropriate and 
reasonable and that it will provide market participants with additional 
flexibility to determine choice of venue that best comport with 
investors' particular needs.
ii. Detailed Summary of Proposed Rule Change
    As indicated above, under the proposed rules structure, the 
Exchange will have the choice to allow trading to occur in a FLEX 
Option class on the existing FLEX RFQ System platform or the proposed 
FLEX Hybrid Trading System platform. The rules governing the trading of 
FLEX Options on the existing FLEX RFQ System platform are contained, 
and will continue to be maintained, in Chapter XXIVA of the Exchange 
Rules. The proposed rules governing the trading of FLEX Options on the 
FLEX Hybrid Trading System platform will be reflected in new Chapter 
XXIVB. The Exchange currently intends to maintain and operate both the 
existing FLEX RFQ System platform and the new FLEX Hybrid Trading 
System platform and will determine which trading platform will be 
utilized on a class-by-class basis. These

[[Page 50135]]

determinations will be announced to the membership via Regulatory 
Circular.
    The new platform rules are generally modeled after and correspond 
with the existing FLEX RFQ System rules contained in Chapter XXIVA. 
Discussion of each of the proposed new rules, as well as various 
corresponding changes to the existing FLEX rules, follows.
(1). Proposed FLEX Hybrid Trading System Rules (Chapter XXIVB)
    An introductory section to proposed Chapter XXIVB provides that 
transactions in FLEX Options may be effected on the FLEX Hybrid Trading 
System in accordance with the procedures in Chapter XXIVB, or via the 
existing FLEX trading platform in accordance with the procedures in 
Chapter XXIVA. As described above, determinations as to which trading 
platform and rules set will be applicable will by made by the Exchange 
on a class-by-class basis and will be announced to the membership via 
Regulatory Circular. The introductory language further explains that 
the rules in Chapters I through XIX and XXIV are also applicable to the 
trading of FLEX Options on the System, except as indicated at the end 
of each rule. To the extent the rules in Chapter XXIVB are inconsistent 
with other Exchange rules, the rules in Chapter XXIVB take precedence 
in relation to the trading of FLEX Options on the System.
(A). FLEX Hybrid Trading System Definitions (Proposed Rule 24B.1)
    Proposed Rule 24B.1, Definitions, corresponds with existing Rule 
24A.1. It also contains several new definitions necessary to 
accommodate the introduction of the FLEX Hybrid Trading System. For 
example, the term ``FLEX Hybrid Trading System'' shall mean the 
Exchange's trading platform that allows FLEX Traders to submit both 
electronic and open outcry RFQs, FLEX Quotes in response to such RFQs, 
and FLEX Orders into an electronic FLEX Book. The term ``FLEX Trader'' 
shall mean a FLEX-participating Exchange member who has been approved 
by the Exchange to trade on the FLEX Hybrid Trading System. The term 
``FLEX Order'' shall mean a FLEX bid or offer entered by a FLEX Market-
Maker or an order to purchase or order to sell a FLEX Option entered by 
a FLEX Trader, in each case into the Book. With respect to the 
electronic RFQ process, various terms defining the ``RFQ Market,'' the 
``RFQ Response Period,'' the ``RFQ Reaction Period,'' and ``RFQ Order'' 
are defined.\8\ In addition, certain Trade Conditions that can be 
placed on an RFQ, an RFQ Order, or FLEX Order are identified.\9\
---------------------------------------------------------------------------

    \8\ The term ``RFQ Market'' shall mean the FLEX Quote bids or 
offers, or both, as applicable, entered in response to an electronic 
Request for Quotes and FLEX Orders resting in the electronic book, 
if any. The term ``RFQ Response Period'' shall mean the period of 
time during which FLEX Traders may provide FLEX Quotes in response 
to a Request for Quotes. The term ``RFQ Reaction Period'' shall mean 
the period of time during which a Submitting Member determines 
whether to accept or reject FLEX Quotes submitted in response to an 
electronic Request for Quotes. The term ``RFQ Order'' shall mean an 
order to purchase or order to sell FLEX Options entered by the 
Submitting Member during the RFQ Reaction Period. See proposed Rule 
24B.1(r)-(u).
    \9\ The following Trade Conditions will be available in the FLEX 
Hybrid Trading System for a FLEX Trader to choose from for RFQs, RFQ 
Orders, or FLEX Orders: (a) Fill-or-Kill, which is a condition to 
execute an RFQ Order or FLEX Order in its entirety as soon as it is 
represented or cancel it; (b) All-or-None, which is a condition to 
execute an RFQ Order or FLEX Order in its entirety or not at all; 
(c) Minimum Fill, which is a condition to execute an RFQ Order or 
FLEX Order in a minimum quantity or not at all; (d) Lots Of, which 
is a condition to execute an RFQ Order or FLEX Order in minimum lot 
sizes or not at all; (e) Intent to Cross, which is an RFQ condition 
indicating that a Submitting Member intends to cross or act as 
principal and receive a crossing participation entitlement; and (f) 
Hedge, which is an RFQ or FLEX Order condition contingent on trade 
execution in Non-FLEX Options or other Non-FLEX components (e.g., 
stock, futures, or other related instruments or interests). Trade 
Conditions, other than Intent to Cross or Hedge, will be inputted 
but not disclosed on the System. In addition, other than Fill-or-
Kill orders, FLEX Orders will be designated by the System as ``day 
orders'' and, if unexecuted, will be cancelled at the close of each 
trade day. See proposed Rule 24B.1(x). In the future, the Exchange 
may determine to enable ``good-'til-cancelled'' functionality. The 
introduction of such functionality would be the subject of a 
separate rule filing.
---------------------------------------------------------------------------

(B). Terms of FLEX Options (Proposed Rule 24B.4)
    Proposed Rule 24B.4, Terms of FLEX Options, is similar to existing 
Rule 24A.4. Subparagraphs (a)(1) through (2) of Rule 24B.4, like sub-
paragraphs (a)(1) through (2) of Rule 24A.4, provide that the variable 
terms of FLEX Options (such as the underlying security or index, put or 
call type, exercise-style, expiration date, and exercise price) will be 
established through the bidding and offering mechanics applicable to 
RFQs or the bidding and offer mechanics applicable to the Book. Other 
terms shall be the same as those that apply to Non-FLEX Options.
    Subparagraph (a)(3) of Rule 24B.4, like subparagraph (a)(3) of Rule 
24A.4, lists the additional categories of information that must be 
addressed by a member that initiates an RFQ (the ``Submitting 
Member''), such as the type and form of quote sought and the length of 
the RFQ Response Period.\10\ Additionally, the Submitting Member must 
indicate any Trade Condition placed on the RFQ (i.e., an Intent to 
Cross or Hedge condition).\11\ Given the proposed introduction of the 
new concept of the FLEX Book and the new concept of a FLEX Order that 
can be entered into the Book, proposed subparagraph (a)(4) lists the 
additional categories of information that must be included in a FLEX 
Order, such as the order type and form, and any Trade Condition, as 
applicable.
---------------------------------------------------------------------------

    \10\ The length of the RFQ Response Period interval is defined 
by the Submitting Member, provided that the length of the interval 
must fall within the time ranges established by the appropriate 
Procedure Committee on a class-by-class basis for electronic RFQs or 
open outcry RFQs. Such time cannot be less than three seconds. See 
proposed Rule 24B.4(a)(3)(iii).
    \11\ At the conclusion of an RFQ, the Submitting Member may 
enter an RFQ Order to buy or sell a specified size. An RFQ Order 
shall contain the same transaction specifications as the related RFQ 
plus any additional Trade Condition(s), if applicable, that relate 
to the particular order and its size. See proposed Rule 
24B.4(a)(3)(iv) and note 9, supra.
---------------------------------------------------------------------------

    Subparagraph (a)(5) of Rule 24B.4 lists additional contract and 
transaction specifications that RFQs, FLEX Quotes responsive to RFQs, 
RFQ Orders, and FLEX Orders must satisfy. These additional 
specifications pertain first to maximum expiration terms and second to 
minimum value size requirements. The maximum expiration terms are the 
same as in the existing FLEX rules.\12\ The minimum value size 
specifications are substantially similar to subparagraph (a)(4) of Rule 
24A.4, though additional language has been added to clarify the 
applicability of the minimum value size requirements to FLEX Orders 
entered in the Book.\13\ As with the existing FLEX rules, minimum value 
size requirements for transactions resulting from electronic and open 
outcry RFQs and for responsive FLEX Quotes will be as follows:
---------------------------------------------------------------------------

    \12\ Specifically, for FLEX Equity Options, the maximum term is 
three years; provided, however, that the Submitting Member may 
request a longer term to a maximum of five years. For FLEX Index 
Options, the maximum term is five years; provided, however, that a 
Submitting Member may request a longer term to a maximum of ten 
years. See existing Rule 24A.4(a)(4) and proposed Rule 24B.4(a)(5).
    \13\ As discussed above, the Exchange notes that the minimum 
value size requirements were put in place to limit participation in 
FLEX Options to sophisticated, high-net-worth investors, including 
institutional investors, rather than retail investors.
---------------------------------------------------------------------------

     Opening Transactions in a New Series: The minimum value 
size for an opening transaction resulting from an RFQ in any FLEX 
series in which there is no open interest at the time the RFQ is 
submitted shall be: (i) The lesser of 250 contracts or the number of 
contracts overlying $1 million in the underlying securities in the case 
of FLEX Equity

[[Page 50136]]

Options; and (ii) $10 million Underlying Equivalent Value in the case 
of FLEX Index Options.
     Transactions in Existing Series: The minimum value size 
for a transaction in any currently-opened FLEX series resulting from an 
RFQ shall be: (i) 100 contracts in the case of opening transactions in 
FLEX Equity Options and 25 contracts in the case of closing 
transactions in FLEX Equity Options; and (ii) $1 million Underlying 
Equivalent Value in the case of both opening and closing transactions 
in FLEX Index Options; or (iii) in either case, the remaining 
underlying size or Underlying Equivalent Value on a closing 
transaction, whichever is less.
     FLEX Quote Sizes: The minimum value size for FLEX Quotes 
responsive to an RFQ shall be: (i) 25 contracts in the case of FLEX 
Equity Options; and (ii) $1 million Underlying Equivalent Value in the 
case of FLEX Index Options; or (iii) in either case, the remaining 
underlying size or Underlying Equivalent Value on a closing 
transaction, whichever is less. However, FLEX Quotes of FLEX Index 
Appointed Market-Makers must be for at least $10 million Underlying 
Equivalent Value or the dollar amount indicated in the RFQ, whichever 
is less.
    There will be similar minimum value size requirements that apply to 
transactions that occur in the FLEX Book. Specifically, a transaction 
resulting from a FLEX Order that seeks liquidity by trading against 
(``hitting'') the Book must satisfy the same minimum value size 
requirements described above that are applicable to RFQ transactions. 
Conversely, a FLEX Order that provides liquidity by resting in the Book 
must satisfy the same minimum value size requirements described above 
that are applicable to FLEX Quotes. Thus, the minimum value size 
requirements for FLEX Orders entered into the Book will be as follows:
     Opening Transactions in a New Series: The minimum value 
size for an opening transaction resulting from a FLEX Order entered to 
hit the FLEX Book in any FLEX series in which there is no open interest 
at the time the FLEX Order is submitted shall be: (i) The lesser of 250 
contracts or the number of contracts overlying $1 million in the 
underlying securities in the case of FLEX Equity Options; and (ii) $10 
million Underlying Equivalent Value in the case of FLEX Index Options.
     Transactions in Existing Series: The minimum value size 
for a transaction in any currently-opened FLEX series resulting from a 
FLEX Order entered to hit the FLEX Book shall be: (i) 100 contracts in 
the case of opening transactions in FLEX Equity Options and 25 
contracts in the case of closing transactions in FLEX Equity Options; 
and (ii) $1 million Underlying Equivalent Value in the case of both 
opening and closing transactions in FLEX Index Options; or (iii) in 
either case, the remaining underlying size or Underlying Equivalent 
Value on a closing transaction, whichever is less.
     Resting FLEX Order Sizes: The minimum value size for FLEX 
Orders (undecremented size) entered to rest in the FLEX Book shall be: 
(i) 25 contracts in the case of FLEX Equity Options; and (ii) $1 
million Underlying Equivalent Value in the case of FLEX Index Options; 
or (iii) in either case, the remaining underlying size or Underlying 
Equivalent Value on a closing transaction, whichever is less. With 
respect to FLEX Index Appointed Market-Makers, FLEX Orders 
(undecremented size) must be for at least $10 million Underlying 
Equivalent Value.
    Subparagraph (a)(5)(iv) of the proposed rule also includes a new 
requirement that a FLEX Appointed Market-Maker \14\ has an obligation 
to respond to a certain percentage of electronic RFQs. This percentage 
will be determined by the appropriate Procedure Committee on a class-
by-class basis, but will not be less than 80%. As with the existing 
FLEX rules, a FLEX Appointed Market-Maker will continue to be required 
to respond to every open-outcry RFQ in a class of FLEX Options to which 
it is appointed and trading in open outcry.
---------------------------------------------------------------------------

    \14\ FLEX Appointed Market-Makers and their related market-
making obligations are described in proposed Rules 24B.4(a)(5)(iv) 
and 24B.9.
---------------------------------------------------------------------------

    Paragraph (b), pertaining to special terms for FLEX Index Options, 
and paragraph (c), pertaining to special terms for FLEX Equity Options, 
in proposed Rule 24B.4 are the same as the corresponding paragraphs in 
existing Rule 24A.4.
(C). FLEX Trading Procedures and Principles (Proposed Rule 24B.5)
    Proposed Rule 24B.5, FLEX Trading Procedures and Principles, 
prescribes in some detail the trading procedures that apply to the FLEX 
Hybrid Trading System. It describes the RFQ processes for electronic 
and open-outcry trading, the FLEX Book, contract acceptance, priority 
of bids and offers, and applicable trading increments.
(a). Electronic and Open Outcry RFQ Processes
    Paragraph (a) describes the RFQ process, which may be used at any 
time, but is required to initiate a FLEX transaction when there are no 
FLEX Orders currently resting in the Book in the particular FLEX 
Options series to be traded. The RFQ process may be conducted 
electronically through the System or in open outcry as described below.
(aa). Electronic RFQ Process
    Subparagraph (a)(1) of proposed Rule 24B.5 describes the electronic 
RFQ process. Upon receipt of an RFQ that satisfies the requirements of 
proposed Rule 24B.4, the System will cause the terms and specifications 
of the RFQ to be communicated to FLEX Traders. FLEX Traders, including 
FLEX Market-Makers and the Submitting Member, may then enter FLEX 
Quotes that are responsive to the RFQ during the RFQ Response 
Period.\15\ FLEX Quotes may be entered, modified, or withdrawn at any 
point during the RFQ Response Period; provided, however, any FLEX 
Appointed Market-Makers must meet certain FLEX Quote maintenance 
obligations. During the RFQ Response Period, the System will 
intermittently calculate and disseminate to all FLEX Traders the 
aggregate depth of the market at each price level considering FLEX 
Quote responses and FLEX Orders resting in the Book (referred to as the 
expected ``RFQ Market'').
---------------------------------------------------------------------------

    \15\ However, FLEX Quotes may not be entered for the account of 
a options market maker from another options exchange. See proposed 
Rule 24B.5(a)(1)(ii)(A).
---------------------------------------------------------------------------

    At the end of the RFQ Response Period, the System will calculate 
and disseminate to all FLEX Traders the final RFQ Market. The 
Submitting Member will then have a brief interval of time to promptly 
accept or reject the RFQ Market, provided that such acceptance or 
rejection must occur during the ``RFQ Reaction Period.'' \16\ During 
the RFQ Reaction Period, FLEX Quotes and FLEX Orders in the System 
cannot be modified or withdrawn.\17\
---------------------------------------------------------------------------

    \16\ The length of the RFQ Reaction Period interval will be 
established by the appropriate Procedure Committee on a class-by-
class basis and will not be more than 30 seconds. Failure to 
promptly accept the bids or offers equates to a rejection. See 
proposed Rule 24B.5(a)(1)(iii)(A).
    \17\ FLEX Orders can be entered during the RFQ Reaction Period, 
but will not be included in the RFQ Market calculation. See proposed 
Rule 24B.5(a)(1)(iii)(B)(I).
---------------------------------------------------------------------------

    In the scenario where a Submitting Member has not indicated an 
``intent to cross'' in the RFQ request, the Submitting Member can 
determine to do the following during the RFQ Reaction Period: (i) Trade 
against the bids and offers (but not both) by submitting an RFQ Order, 
in which case the resulting transaction will occur at a single ``BBO

[[Page 50137]]

clearing price'' that does not violate the RFQ Order's limit price, if 
any;\18\ or (ii) reject the RFQ or let it expire.\19\
---------------------------------------------------------------------------

    \18\ If the Submitting Member chooses to trade, the RFQ Order it 
sends will be eligible to trade with the FLEX Quotes and FLEX Orders 
at a single price that will leave bids and offers which cannot trade 
with each other (``BBO clearing price''). In determining the 
priority of FLEX Quotes and FLEX Orders to be traded, the System 
gives priority to FLEX Quotes and FLEX Orders whose price is better 
than the BBO clearing price, then to FLEX Quotes and FLEX Orders at 
the BBO clearing price. The allocation among multiple FLEX Quotes 
and FLEX Orders that are priced at the BBO clearing price will be as 
follows: (i) Any FLEX Quotes that are subject to a FLEX Appointed 
Market-Maker participation entitlement will have priority to 
participate in the execution; (ii) then FLEX Orders resting in the 
electronic book based on the Book priority algorithm; (iii) then 
FLEX Quotes for the account of public customers and non-member 
broker-dealers based on time priority; and (iv) then all other FLEX 
Quotes based on time priority. In the event an RFQ Market is locked 
or crossed (e.g., the best bid is $1.25 and the best offer is 
$1.20), allocation at the BBO clearing price on the same side of the 
transaction as the RFQ Order shall be as follows: (i) FLEX Orders 
resting in the electronic book will have priority to participate in 
the execution based on time priority; (ii) then, if applicable, an 
RFQ Order for the account of a public customer or non-member broker-
dealer, then any FLEX Quotes that are subject to a FLEX Appointed 
Market-Maker participation entitlement; (iii) then FLEX Quotes for 
the account of public customers and non-member broker-dealers based 
on time priority; (iv) then, if applicable, an RFQ Order for the 
account of a member, then any FLEX Quotes that are subject to a FLEX 
Appointed Market-Maker participation entitlement; and (v) then all 
other FLEX Quotes based on time priority. The System will then enter 
any remaining balance of the incoming RFQ Order in the Book (if 
available), unless the Submitting Member has indicated that the 
balance of the RFQ Order is to be automatically cancelled if it is 
not traded. An RFQ Order that has been decremented as part of an 
electronic RFQ is eligible to be entered into the Book (if 
available) even though the balance that remains may be below the 
minimum size requirements for FLEX Orders entered to rest in the 
Book. Once entered in the Book, an RFQ Order will be treated the 
same as other FLEX Orders. See proposed Rules 24B.4(a)(5)(iv) and 
24B.5(a)(1)(iii)(C).
    \19\ Consistent with the existing FLEX rules, a Submitting 
Member has no obligation to accept any FLEX bid or offer. See 
proposed Rule 24B.5(a)(1)(iii)(E) and existing Rule 24A.5(c)(iv).
---------------------------------------------------------------------------

    If the Submitting Member rejects the RFQ Market or to the extent 
the RFQ Market size exceeds the Submitting Member's FLEX transaction 
size, the System will automatically execute any remaining FLEX Quotes 
and FLEX Orders that are marketable against each other at a single 
clearing price. Thereafter: (i) If there is a Book available, any 
further remaining balance of the FLEX Quotes will be automatically 
entered into the Book unless the FLEX Trader that entered the FLEX 
Quote has indicated that the FLEX Quote is to be automatically 
cancelled if not traded;\20\ or (ii) if there is no Book available, any 
remaining balance of the FLEX Quotes will be automatically cancelled.
---------------------------------------------------------------------------

    \20\ A FLEX Quote that has been decremented as part of an 
electronic RFQ is eligible to be entered into the Book (if 
available) even though the balance that remains may be below the 
minimum size requirements for FLEX Orders entered to rest in the 
Book. Once entered in the Book, a FLEX Quote will be treated the 
same as other FLEX Orders. See proposed Rules 24B.4(a)(5)(iv) and 
24B.5(a)(1)(iii)(F).
---------------------------------------------------------------------------

    Once the RFQ Reaction Period concludes and applicable allocations 
are completed, FLEX Traders can enter new FLEX Orders or cancel 
existing FLEX Orders in the Book at any time. If the Book is available, 
the Submitting Member and other FLEX Traders can also determine to 
enter FLEX Orders in the Book at the conclusion of the RFQ process.
    The following examples illustrate the process:
     Assume the RFQ Market is bid 1000 contracts at $1.00 and 
offered 1000 contracts at $1.20, 1200 contracts at $1.21, and 1500 
contracts at $1.23. Also assume that the FLEX Book is not activated in 
the particular class. If the Submitting Member submits an agency RFQ 
Order to buy 1500 contracts, the order will trade at a BBO clearing 
price of $1.21. The priority among the interest represented on the 
offer-side of the RFQ Market will be first to the FLEX Quotes offered 
at $1.20 and second to FLEX Quotes offered at $1.21. Allocation among 
multiple FLEX Quotes represented at $1.21 shall be first to any FLEX 
Appointed Market-Maker(s) with a participation entitlement, then to 
FLEX Quotes for the account of public customers and non-member broker-
dealers based on time priority, then to all other FLEX Quotes based on 
time priority. The remaining balance of the FLEX Quotes entered in 
response to the RFQ will be automatically cancelled.
     Assume the RFQ Market is bid 1000 contracts at $1.21 and 
offered 1000 contracts at $1.20, 1200 contracts at $1.21, and 1500 
contracts at $1.23. Thus, the bids and offers that make up the RFQ 
Market are ``crossed.'' Also assume that each of the FLEX Traders that 
entered responses elected to have any remaining balance on their FLEX 
Quotes automatically booked. If the Submitting Member submits an agency 
RFQ Order to buy 1000 contracts, the order will trade at a BBO clearing 
price of $1.21 and the 1000 contract bid will also trade against the 
offers at a BBO clearing price of $1.21. (The particular allocation 
algorithm among the interest represented on the offer-side of the RFQ 
Market is as described in the first example, assuming there are no FLEX 
Orders in the Book.) Coming out of the RFQ auction, the Book will also 
display offers of 200 contracts at $1.21 and 1500 contracts at $1.23.
     Assume the RFQ Market is bid 1000 contracts at $1.21 and 
offered 1000 contracts at $1.20, 500 contracts at $1.21, and 1500 
contracts at $1.23. Thus, the bids and offers that make up the RFQ 
Market are ``crossed.'' Also assume that the bid consists in part of a 
100-contract FLEX Order that was resting in the Book prior to the 
initiation of the RFQ and that each of the FLEX Traders that entered 
responses elected to have any remaining balance on its FLEX Quote 
automatically booked. If the Submitting Member submits a public 
customer RFQ Order to buy 1000 contracts at $1.21, the 100 contract 
FLEX Order, the 1000 contract RFQ Order, and 400 contracts of the 
remaining 900 contract bid will trade against the offers at a BBO 
clearing price of $1.21.\21\ (The particular allocation algorithm among 
the interest represented on the offer-side of the RFQ Market is as 
described in the first example, assuming there are no FLEX Orders in 
the Book.) Coming out of the RFQ auction, the Book will also display a 
bid of 500 contracts at $1.21 and an offer of 1500 contracts at $1.23.
---------------------------------------------------------------------------

    \21\ If the RFQ Order is submitted for the account of a member, 
the RFQ Order will trade after the FLEX Order and any FLEX Quotes 
for the account of public customers and non-member broker-dealers. 
See note 18, supra
---------------------------------------------------------------------------

     Assume the RFQ Market is bid 1000 contracts at $1.00 and 
offered 1000 contracts at $1.20 and the Submitting Member wants to 
trade 200 contracts in a FLEX Equity series that has a minimum value 
size requirement of 100 contracts. Also assume the FLEX Book is 
activated in the particular class. During the RFQ Reaction Period, the 
Submitting Member enters an agency RFQ Order to buy 200 contracts at 
$1.15. Because the best offer is $1.20, no trade will occur. The RFQ 
Order and the FLEX Quotes entered in response to the RFQ will be booked 
(assuming the Submitting Member and each of the FLEX Traders that 
entered responses elected to have any remaining balance on their FLEX 
Quotes automatically booked). Coming out of the RFQ auction, the Book 
will display a market that is bid 200 contracts at $1.15 and offered 
1000 contracts at $1.20.
    In the scenario where the Submitting Member has indicated an 
``intent to cross'' in its RFQ request, during the RFQ Reaction Period 
the Submitting Member can determine to: (i) Enter an RFQ Order to trade 
with the bids or offers and be automatically allocated a crossing 
participation entitlement to trade with the RFQ Order at the BBO

[[Page 50138]]

clearing price;\22\ or (ii) reject the RFQ or let it expire.
---------------------------------------------------------------------------

    \22\ The existing FLEX rules allow for the Submitting Member to 
execute a certain portion of a FLEX Order where the Submitting 
Member has indicated an intention to cross or act as principal (the 
``crossing participation entitlement''). See existing Rule 24A.5(e). 
The same concept will apply under the proposed FLEX Hybrid Rules, 
though changes to the applicable participation entitlement 
percentages are being proposed. In addition, the Exchange is 
proposing to extend the use of crossing participation entitlements 
to solicitations. See proposed Rule 24B.5(d). The particular 
participation entitlements are discussed further below.
---------------------------------------------------------------------------

    If the Submitting Member enters an RFQ Order, the System will 
immediately execute the RFQ Order to the extent marketable at the BBO 
clearing price, with the Submitting Member executing an amount up to 
the applicable crossing participation entitlement at the BBO clearing 
price after yielding to certain trading interests.\23\ Thereafter, any 
remaining balance of the RFQ Order will be exposed in the Book \24\ for 
at least the minimum Crossing Exposure Period.\25\ During this time, 
other FLEX Traders can trade against the order. At the end of the 
Crossing Exposure Period, the Submitting Member may enter a contra-side 
order to trade any remaining balance of the RFQ Order. The Submitting 
Member must, however, enter a contra-side order when necessary to 
satisfy the minimum value size requirements for the FLEX 
transaction.\26\
---------------------------------------------------------------------------

    \23\ See note 18, supra, for description of the BBO clearing 
price. In determining the priority of FLEX Quotes and FLEX Orders to 
be traded when the Submitting Member has indicated an ``intent to 
cross,'' the System gives priority to FLEX Quotes and FLEX Orders 
whose price is better than the BBO clearing price, then to FLEX 
Quotes and FLEX Orders at the BBO clearing price. The allocation 
among multiple FLEX Quotes and FLEX Orders that are priced at the 
BBO clearing price will be as follows: (i) FLEX Orders resting in 
the electronic book will have priority to participate in the 
execution; (ii) then FLEX Quotes for the account of public customers 
and non-member broker-dealers based on time priority; (iii) then the 
crossing participation entitlement; (iv) then any FLEX Quotes that 
are subject to a FLEX Appointed Market-Maker participation 
entitlement; and (v) then all other FLEX Quotes based on time 
priority. See proposed Rule 24B.5(a)(1)(iii)(D). The FLEX Appointed 
Market-Maker participation entitlement when combined with a crossing 
participation entitlement will collectively not exceed 40% of the 
incoming RFQ Order's original size. See proposed Rule 24B.5(d)(2).
    \24\ If there is no Book available, the System will expose the 
remaining balance of the incoming RFQ Order, if any, so other FLEX 
Traders can trade against the order. See proposed Rule 
24B.5(a)(1)(iii)(D)(IV).
    \25\ The length of this Crossing Exposure Period shall be 
determined by the appropriate Procedure Committee on a class-by-
class basis and shall not be less than three seconds. See id.
    \26\ See proposed Rule 24B.4(a)(5)(ii) and (iii), and proposed 
Rule 24B.5(a)(1)(iii)(D)(IV).
---------------------------------------------------------------------------

    The following examples illustrate this process:
     Assume the RFQ Market is bid 1000 contracts at $1.00 and 
offered 1000 contracts at $1.20, 1200 contracts at $1.21 and 1500 
contracts at $1.23. Also assume that the Submitting Member marked the 
RFQ with an ``intent to cross'' flag, that the applicable crossing 
entitlement is 40%, and that the FLEX Book is not activated in the 
particular class. If the Submitting Member submits an agency market RFQ 
Order to buy 200 contracts, the order will trade at a BBO clearing 
price of $1.20, with the Submitting Member being automatically 
allocated 80 contracts (40% of 200) on the trade after yielding to any 
FLEX Quotes for the account of public customers and non-member broker-
dealers. (The particular allocation algorithm applicable to any 
remaining contracts is as described in footnote 23.) The remaining 
balance of the FLEX Quotes entered in response to the RFQ will be 
automatically cancelled.
     Assume the RFQ Market is bid 1000 contracts at $1.21 and 
offered 1000 contracts at $1.20, 1200 contracts at $1.21, and 1500 
contracts at $1.23. Thus, the bids and offers that make up the RFQ 
Market are ``crossed.'' Also assume that the Submitting Member marked 
the RFQ with an ``intent to cross'' flag, that the applicable crossing 
entitlement is 40%, that the offer consists in part of a 100 contract 
FLEX Order at $1.20 that was resting in the Book prior to the 
initiation of the RFQ, and that each of the FLEX Traders that entered 
responses were FLEX Market-Makers that elected to have any remaining 
balance on their FLEX Quotes automatically booked. If the Submitting 
Member submits an agency market RFQ Order to buy 200 contracts, the 
order will trade at a BBO clearing price of $1.21, with the resting 
FLEX Order trading 100 contracts, the Submitting Member trading 80 
contracts (40% of 200), and the remaining 20 trading against the other 
interest represented in the offer. The 1000 contract bid will also 
trade against the offers at the BBO clearing price of $1.21. (The 
particular allocation algorithm among the remaining interest 
represented in the offer-side of the RFQ Market is as described in 
footnote 23.) Coming out of the RFQ auction, the Book will also display 
offers of 1000 contracts at $1.21 and 1500 contracts at $1.23.
     Assume a scenario where there is an RFQ Market of $1.00-
$1.20, the Submitting Member wants to trade 200 contracts in a FLEX 
Equity series that has a minimum value size requirement of 100 
contracts, and a crossing participation entitlement of 40%. Also assume 
the FLEX Book is activated in the particular class. During the RFQ 
Reaction Period, the Submitting Member may enter an agency RFQ Order to 
buy 200 contracts at $1.15. The Submitting Member will immediately 
cross 80 contracts (40% of 200) and the balance of the order will be 
entered in the Book. After waiting the required exposure time (say 
three seconds), the Submitting Member must enter a contra-side order 
for at least 20 contracts if no one else has traded against the 
remaining balance of the RFQ Order (in order to satisfy the minimum 
value size requirement of 100 contracts).
    The Exchange notes that the Submitting Member must mark its RFQ 
with an ``intent to cross'' flag at the time the RFQ is originally 
submitted to be automatically allocated the applicable crossing 
participation entitlement for facilitation and solicitation 
transactions. If the RFQ is not flagged in this manner, the Submitting 
Member will not be automatically allocated the entitlement.
    The Exchange notes that a Submitting Member also has the ability to 
enter an agency or proprietary FLEX Quote in response to the Submitting 
Member's own RFQ. Such a FLEX Quote will be treated the same as any 
other FLEX Quote and subject to the priority allocation algorithm 
described above.
    Finally, the Exchange notes that all electronic RFQ transactions 
must be in compliance with Section 11(a)(1) of the Act \27\ and the 
rules promulgated thereunder. Section 11(a)(1) prohibits a member of a 
national securities exchange from effecting transactions on that 
exchange for its own account, the account of an associated person, or 
an account over which it or its associated person exercises investment 
discretion (collectively ``proprietary'' orders) unless an exception 
applies. In this regard, the Exchange is proposing that proprietary 
FLEX Quotes, RFQ Orders, and a crossing participation entitlements may 
rely on the exception found in paragraph (G) of Section 11(a)(1) of the 
Act \28\ and Rule 11a1-1(T) thereunder (the ``G'' exemption''),\29\ 
because within the System such trading interest would yield to same-
priced FLEX Orders in the Book and same-priced FLEX Quotes for the 
account of public customers and non-member broker-dealers, in 
compliance with the ``G'' exception requirement to yield priority to 
any bid (offer) at the same price for the account of a person who is 
not, or is not associated with, a member (a ``non-member''). A member 
that relies on the ``G'' exemption would also have

[[Page 50139]]

to satisfy the other requirements of the ``G'' exemption.
---------------------------------------------------------------------------

    \27\ 15 U.S.C. 78k(a).
    \28\ 15 U.S.C. 78k(a)(1)(G).
    \29\ 17 CFR 240.11a1-1(T).
---------------------------------------------------------------------------

(bb). Open Outcry RFQ Process
    Subparagraph (a)(2) of proposed Rule 24B.5 describes the open 
outcry RFQ process, which is similar to the process that exists today 
with a few primary distinctions.\30\ To initiate a FLEX transaction 
using the open-outcry RFQ process, a Submitting Member shall submit an 
RFQ to the FLEX Official.\31\ After providing an RFQ in proper form to 
the FLEX Official, the Submitting Member shall immediately announce the 
terms and specifications of the RFQ to the trading crowd for the FLEX 
Option by public outcry. FLEX Traders present in the trading crowd may 
provide the Submitting Member with responsive FLEX Quotes by public 
outcry during the RFQ Response Period.\32\ These FLEX Quotes may be 
entered, modified, or withdrawn at any point during the RFQ Response 
Period; provided, however, FLEX Appointed Market-Makers must meet 
certain FLEX Quote maintenance obligations.\33\ At the expiration of 
the RFQ Response Period, the Submitting Member will identify the BBO 
considering responsive FLEX Quotes and, if applicable, FLEX Orders 
resting in the Book. The Submitting Member will announce the BBO to the 
FLEX Traders in the trading crowd.
---------------------------------------------------------------------------

    \30\ The primary distinctions between the trading mechanics 
applicable to the existing FLEX open-outcry RFQ process and the 
trading mechanics applicable to the proposed FLEX Hybrid Trading 
System open-outcry RFQ process are that, under the latter process, 
the Submitting Member will be responsible for announcing the terms 
and specifications of the RFQ to the trading crowd by public outcry, 
receiving FLEX Quotes responsive to the RFQ and, at the conclusion 
of the RFQ Response Period, announcing the BBO to the trading crowd 
(whereas under the existing process, the FLEX Post Official 
communicates the RFQ to FLEX-participating members over facilities 
maintained by the Exchange, FLEX Quotes responsive to the RFQ may be 
entered at the FLEX post, and the BBO is visibly displayed at the 
post and over the network). Compare proposed Rule 24B.5(a)(2)(i)(B), 
(ii)(A), and (ii)(B) to existing Rule 24A.5(a)(ii), (b)(i), and 
(b)(iii). There are also differences in the applicable priority 
provisions that will take into consideration the priority of the 
electronic book (which is not applicable under the existing process) 
and the priority of two bids submitted in open outcry at the same 
time and same price (which will be apportioned equally as compared 
to the existing practice of affording priority to the FLEX Appointed 
or Qualified Market-Makers) as well as modify the applicable 
crossing participation entitlements. Compare proposed Rule 
24B.5(a)(2)(v) and (d) to existing Rule 24A.5(e) and (f); see also 
note 22, supra.
    \31\ Under the proposed rules, the Exchange may designate an 
employee or independent contractor to act as a FLEX Official and 
designate other qualified employees or independent contractors to 
assist the FLEX Official as the need arises. The FLEX Official shall 
perform the functions set out in proposed Rule 24B.14, which include 
reviewing the conformity of open-outcry RFQs to the terms and 
specifications contained in proposed Rule 24B.4.
    \32\ As with electronic RFQs, the length of the RFQ Response 
Period interval for open-outcry transactions is defined by the 
Submitting Member, provided that the length of the interval must 
fall within the time ranges established by the appropriate Procedure 
Committee on a class-by-class basis and such time cannot be less 
than three seconds. See proposed Rule 24B.4(a)(3)(iii).
    \33\ See proposed Rules 24B.4(a)(5)(iv) and 24B.9.
---------------------------------------------------------------------------

    If the Submitting Member does not intend to cross or act as 
principal with respect to any part of the FLEX trade, the Submitting 
Member shall promptly accept or reject the BBO; provided, however, if a 
Submitting Member either rejects the BBO or is given a BBO for less 
than the entire size requested, all FLEX Traders in the trading crowd 
other than the Submitting Member will have an opportunity during the 
BBO Improvement Interval in which to match or improve, as applicable, 
the BBO.\34\ At the expiration of any BBO Improvement Interval, the 
Submitting Member must promptly accept or reject the BBO(s).
---------------------------------------------------------------------------

    \34\ The ``BBO Improvement Interval'' refers to a period of time 
during which FLEX Traders in the trading crowd may submit FLEX 
Quotes to meet or improve the BBO established during the RFQ 
Response Period. See proposed Rule 24B.1(b).
---------------------------------------------------------------------------

    If the Submitting Member indicates an intention to cross or act as 
principal with respect to any part of the FLEX trade, acceptance of the 
displayed BBO shall be automatically delayed until the expiration of 
the BBO Improvement Interval. Prior to the BBO Improvement Interval, 
the Submitting Member must announce to the trading crowd the price at 
which the Submitting Member expects to trade. In these circumstances, 
the Submitting Member may participate with all other FLEX Traders 
present in the trading crowd in attempting to improve or match the BBO 
during the BBO Improvement Interval. At the expiration of the BBO 
Improvement Interval, the Submitting Member must promptly accept or 
reject the BBO(s).
    As with the existing rules, the Submitting Member has no obligation 
to accept any FLEX bid or offer. And, whenever following the completion 
of the RFQ Response Period or BBO Improvement Interval, as applicable, 
the Submitting Member rejects the BBO or the BBO size exceeds the FLEX 
transaction size indicated in the Request for Quotes, FLEX Traders 
present in the trading crowd may accept the unfilled balance of the 
BBO. Such acceptance must occur by public outcry promptly following the 
Submitting Member's determination whether to accept or reject the BBO 
or at the expiration of any applicable BBO Improvement Interval. 
Rejection of the open-outcry BBO(s) or failure to promptly to accept 
the BBO(s) by the Submitting Member or FLEX Traders, as applicable, 
results in expiration of the BBO(s) and the RFQ.
    For open-outcry RFQs, the highest bid (lowest offer) will have 
priority. Subject to the requirements of Section 11(a)(1) discussed 
below, at the same price, the Submitting Member will allocate the RFQ 
Order in accordance with the following algorithm. First, to the extent 
the Submitting Member is entitled to a crossing participation 
entitlement, if any, the Submitting Member has priority to trade the 
applicable entitlement percentage. Next, to the extent a FLEX Appointed 
Market-Maker(s) is entitled to a participation entitlement, if any, the 
FLEX Appointed Market-Maker(s) has priority to trade the applicable 
entitlement amount. In any event, the FLEX Appointed Market-Maker 
participation entitlement when combined with a crossing participation 
entitlement will collectively not exceed 40% of the incoming order's 
original size.\35\ Thereafter, FLEX Quotes submitted in open outcry in 
response to the open-outcry RFQ will trade based on time priority; 
provided, however, where two or more best bid (offer) FLEX Quotes are 
submitted in open outcry at the same time and same price or in the 
event the Submitting Member cannot reasonably determine the sequence in 
which the open-outcry bid (offer) FLEX Quotes were made, priority will 
be apportioned equally among the open-outcry bids (offers). Next, to 
the extent there is any remaining balance, same priced FLEX Orders 
resting in the Book will trade based on the Book priority algorithm.
---------------------------------------------------------------------------

    \35\ See proposed Rule 24B.5(d)(2).
---------------------------------------------------------------------------

    If the RFQ Order being represented by the Submitting Member in 
open-outcry has an exemption from Section 11(a), the RFQ Order will 
have priority over all other same-priced bids (offers) on the same side 
of the market. After executing the RFQ Order (or if the Submitting 
Member determines not to trade), any unfilled balance of the BBO may be 
executed by FLEX Traders in the trading crowd based on the priority 
principles described above.
    All open-outcry RFQ transactions must be in compliance with Section 
11(a)(1) and the rules promulgated thereunder. In this regard, a bid 
(offer) submitted on behalf of the proprietary account of a member that 
is relying on the ``G'' exemption must yield priority to any bid 
(offer) at the same price that is represented in the Book (and all FLEX 
Quotes that have priority over the Book) in order to ensure that the 
proprietary order yields priority to non-member orders. A member that 
relies on the ``G'' exemption would also have to satisfy the other 
requirements of the ``G'' exemption. In the event a Submitting

[[Page 50140]]

Member is asserting a crossing participation entitlement on behalf of a 
proprietary order that must yield priority in reliance on the ``G'' 
exemption and a FLEX Appointed Market-Maker is asserting a 
participation entitlement, the Submitting Member's crossing 
participation entitlement to the remaining balance of the original 
order, when combined with the FLEX Appointed Market-Makers guaranteed 
participation, shall not exceed 40% of the original order.\36\ However, 
provided the ``G'' exemption requirements are satisfied, nothing 
prohibits a Submitting Member or FLEX Appointed Market-Maker from 
trading more than its applicable entitlement if other FLEX Traders in 
the crowd do not chose to trade the remaining portion of the order.\37\
---------------------------------------------------------------------------

    \36\ In this particular scenario, at the same price, priority is 
afforded first to any FLEX Appointed Market-Maker(s) with a 
participation entitlement, then to FLEX Quotes represented in the 
trading crowd that are not relying on the ``G'' exemption, then to 
FLEX Orders resting in the Book, then all other interest in the 
trading crowd relying on the ``G'' exemption. Among those latter 
interests, a Submitting Member seeking a crossing participation 
entitlement would then have priority to trade an amount that, when 
combined with allocated FLEX Appointed Market-Maker participation 
entitlement, does not exceed 40% of the original order size. See 
proposed Rule 24B.5(a)(2)(v)(B) and (d)(2)(ii).
    \37\ See proposed Rule 24B.5(a)(2)(v)(B).
---------------------------------------------------------------------------

(b). The FLEX Book & FLEX Orders
    As indicated above, the FLEX Book and FLEX Orders are new concepts 
being introduced through the FLEX Hybrid Trading System platform. 
Paragraph (b) of proposed Rule 24B.5 describes the FLEX Book. The 
determination of whether to make the FLEX Book functionality available 
will be made by the Exchange on a class-by-class basis.
    Utilization of the new FLEX Order functionality is contingent upon 
the FLEX Book being made available. So, if the Book is not made 
available, the FLEX Order functionality will not apply and instead the 
FLEX Hybrid Trading System platform functionality will be limited to 
the electronic and open-outcry RFQ processes. If the Book is made 
available, FLEX Orders that satisfy the specification and minimum value 
size requirements described above are eligible to be entered in the 
Book, as well as the remaining balance of RFQ Orders and FLEX Quotes 
entered in response to an RFQ (both of which are treated the same as 
other FLEX Orders once entered in the Book).
    The System will automatically execute incoming marketable FLEX 
Orders against FLEX Orders resting in the Book based on price-time 
priority, provided that special procedures apply if a FLEX Appointed 
Market-Maker participation entitlement has been established for the 
option class and subject to the restriction discussed in the next 
paragraph. To the extent a FLEX Appointed Market-Maker(s) is entitled 
to a participation entitlement and is quoting at the best bid (offer), 
allocation among multiple bids (offers) at the same price shall be 
first to all FLEX Orders for the account of a public customer ranked 
ahead of the FLEX Appointed Market-Maker based on time priority, then 
the FLEX Appointed Market-Maker entitlement will be applied. 
Thereafter, all other FLEX Orders resting in the Book at the same price 
will trade based on time priority. To the extent there is any remaining 
balance of the incoming order, the balance will be entered in the Book 
or automatically cancelled, depending on any applicable Trade 
Conditions.\38\
---------------------------------------------------------------------------

    \38\ See note 9, supra.
---------------------------------------------------------------------------

    Under the proposed procedures for the FLEX Book, a Submitting 
Member may not execute as principal against a FLEX Order it represents 
as agent unless: (i) The agency FLEX Order is first subject to an RFQ, 
or (ii) the Submitting Member has been bidding or offering for at least 
the Crossing Exposure Period \39\ prior to receiving an agency FLEX 
Order that is executable against such bid or offer. With respect to 
solicitation orders, a Submitting Member may not execute a solicited 
order against a FLEX Order it represents as agent unless the agency 
order is first subject to an RFQ.
---------------------------------------------------------------------------

    \39\ The length of this Crossing Exposure Period shall be 
determined by the appropriate Procedure Committee on a class-by-
class basis and shall not be less than three seconds. See proposed 
Rule 24B.5(b)(3)(i).
---------------------------------------------------------------------------

    All Book transactions must also be in compliance with Section 
11(a)(1) and the rules promulgated thereunder. In this regard:
     ``G'' Exemption: The Exchange is proposing that a member 
may rely on the ``G'' exemption only if the member is ``hitting'' the 
Book with a proprietary order. To the extent the proprietary order is 
not executed in whole or in part as soon as it hits the Book, the order 
must be immediately cancelled by the member. Such a member would also 
have to satisfy the other requirements of the ``G'' exemption, 
including the gross-revenue-related requirements of paragraph (b) of 
the ``G'' exemption rule. However, a member may not rely on the ``G'' 
exemption to rest a proprietary order in the Book. This limitation is 
necessary in order to ensure that the member yields priority to any bid 
(offer) at the same price for the account of a non-member.
     ``Effect versus Execute'' Exemption: The Exchange is 
proposing that a member that submits a proprietary order to rest or 
``hit'' the Book from off the floor may rely on the Exchange's 
automated System to satisfy the requirement of the ``effect versus 
execute'' exemption that the member's proprietary order be executed by 
an exchange member that is not affiliated with the member initiating 
the proprietary order. Such a member would also have to satisfy the 
other requirements of the ``effect versus execute'' exemption (which 
are discussed in more detail below).
(c). Creation of Binding Contracts
    Paragraph (c) of proposed Rule 24B.5 provides that acceptance of 
any bid or offer creates a binding contract under Rule 6.48. This 
provision is the same as in existing Rule 24A.5(d) and will apply for 
both RFQ and Book transactions.
(d). FLEX Priority Algorithms and Section 11(a)(1) Requirements
    Paragraph (d) of proposed Rule 24B.5 describes the general priority 
principles applicable to the FLEX Hybrid System. Subparagraph (d)(1) 
includes a cross-reference to the priority algorithms applicable to 
electronic RFQs, open-outcry RFQs, and Book transactions, each of which 
is discussed above. Subparagraph (d)(2) describes the optional crossing 
and FLEX Appointed Market-Maker participation entitlements that may be 
overlaid on the general priority principles.\40\ The framework for 
these participation entitlements is modeled after the existing FLEX 
rules. However, the Exchange is proposing some modifications from the 
existing structure, which are discussed further below.
---------------------------------------------------------------------------

    \40\ Additionally, Trade Conditions placed on a FLEX Order may 
prevent a match from occurring. See proposed Rules 24B.1(x) and 
24B.5(d)(3).
---------------------------------------------------------------------------

    With respect to the crossing participation entitlement, a 
Submitting Member that has matched or improved the BBO or BBO clearing 
price, as applicable, will have priority after yielding to certain 
trading interests to execute the contra-side of the trade to the extent 
of the applicable crossing participation entitlement.\41\ The crossing 
participation entitlement is intended to encourage members to bring 
FLEX Option orders to CBOE and to

[[Page 50141]]

commit their capital to the FLEX Options market on CBOE, and thereby 
contribute to the liquidity of that market, by guaranteeing them a 
minimum right of participation in the other side of any trade they 
bring to the market if they are prepared to match or improve the BBO.
---------------------------------------------------------------------------

    \41\ As discussed above, the mechanics for receiving a crossing 
participation entitlement and the related priority requirements are 
described in proposed Rule 24B.5(a)(1)(iii)(D) with respect to 
electronic RFQs and in proposed Rule 24B.5(a)(2)(iii)(B) and (v) 
with respect to open-outcry RFQs.
---------------------------------------------------------------------------

    For FLEX Equity Options, the appropriate Procedure Committee will 
determine on a class-by-class basis whether to establish a crossing 
participation entitlement for facilitations and/or solicitations for 
electronic RFQs and/or open-outcry RFQs and the applicable entitlement 
percentage, which shall not exceed 40% of the trade.\42\ For FLEX Index 
Options, the appropriate Procedure Committee will determine on a class-
by-class basis whether to establish a crossing participation 
entitlement for facilitations and/or solicitations for electronic RFQs 
and/or open-outcry RFQs and the applicable entitlement, which shall be 
the greater of a crossing entitlement percentage (which shall not 
exceed 40%), a proportional share of the trade, $1 million underlying 
equivalent value, or the remaining underlying equivalent value on a 
closing transaction valued at less than $1 million.\43\
---------------------------------------------------------------------------

    \42\ The existing FLEX rules allow for a 25% crossing 
participation entitlement for FLEX Equity Options. This entitlement 
generally applies before any other trading interest represented at 
the execution price, which must be the better of the BBO or an 
improved price. See existing Rule 24A.5(e)(iii)(A). Providing for 
the flexibility to increase the entitlement percentage to 40% is 
similar to the percentage parameters that the Exchange may apply for 
crosses in Non-FLEX Options, which permit a crossing entitlement of 
up to 40% after all public customer orders in the limit order book 
are satisfied. See Rule 6.74(d). In addition, allowing for a 40% 
entitlement percentage is consistent with the American Stock 
Exchange's (``Amex'') FLEX trading rules, which permit a FLEX Equity 
Option member firm guarantee of up to 40%. See Securities Exchange 
Act Release No. 54327 (August 16, 2006), 71 FR 49492 (August 23, 
2006) (SR-Amex-2006-47).
    \43\ The existing FLEX rules have similar parameters for FLEX 
Index Options, except that the crossing entitlement percentage is 
set at 20%. See existing Rule 24A.5(e)(iii)(B). The proposed 
parameter allowing for up to 40% is similar to the parameter the 
Exchange applies for crosses in Non-FLEX Options. See CBOE Rule 
6.74(d) and note 42, supra. The proposed rule also indicates that 
the proportional share, $1 million underlying equivalent value, and 
remaining underlying equivalent value parameters will be made 
available only with respect to electronic RFQ transactions to the 
extent the Exchange determines to make this functionality available 
in the FLEX Hybrid Trading System. See proposed Rule 
24B.5(d)(2)(i)(B).
---------------------------------------------------------------------------

    The proposed crossing entitlement requirements also provide that a 
Submitting Member that is seeking a crossing participation entitlement 
in conjunction with an open-outcry RFQ may not cross an order that it 
is holding with a solicited order from a FLEX Market-Maker that is then 
in the trading crowd, except in accordance with CBOE Rule 6.55, 
Multiple Representation Prohibited. As such, if a FLEX Market-Maker is 
solicited and agrees to participate on a cross, the FLEX Market-Maker 
would not be permitted to be present in the trading crowd when such 
order is represented and executed unless an exception under Rule 6.55 
applies. Similarly, the Exchange is proposing that a Submitting Member 
that is seeking a crossing participation entitlement in conjunction 
with an electronic RFQ transaction may not cross an order with (i) A 
solicited order for the individual or joint account of a FLEX Market-
Maker or (ii) a solicited order initiated by the FLEX Market-Maker for 
an account in which the FLEX Market-Maker has an interest, unless the 
FLEX Market-Maker refrains from participating on the same trade. In 
such instances, it would be the responsibility of the FLEX Market-Maker 
to ascertain whether solicited orders for the FLEX Market-Maker's joint 
account are being represented by the Submitting Member.
    With respect to the FLEX Appointed Market-Maker participation 
entitlement, the existing FLEX rule provides that the appropriate 
Procedure Committee may establish a participation entitlement from time 
to time. In the past, the establishment of these entitlements and 
changes thereto have been the subject of separate rule filings.\44\ In 
lieu of continuing the practice of submitting separate rule filings, 
the Exchange is proposing to include specific parameters within the 
rule text, similar to its rules respecting crossing participation 
entitlements (discussed above) and to its rules respecting market-maker 
participation entitlements for Non-FLEX Options.\45\ These parameters 
will provide that the appropriate Procedure Committee may establish a 
participation entitlement formula for FLEX Appointed Market-Makers on a 
class-by-class basis with respect to open-outcry RFQs, electronic RFQs, 
and/or Book transactions. Any such FLEX Appointed Market-Maker 
participation entitlement shall: (i) Be divided equally by the number 
of FLEX Appointed Market-Makers quoting at the BBO or BBO clearing 
price, as applicable; (ii) collectively, be no more than: 50% of the 
remaining order when there is one other FLEX Market-Maker also quoting 
at the same price, 40% when there are two other FLEX Market-Makers also 
quoting at the same price; and 30% when there are three or more FLEX 
Market-Makers also quoting at the same price; and (iii) when combined 
with any Submitting Member's crossing participation entitlement, shall 
not exceed 40% of the original order.\46\ Capping the total FLEX 
Appointed Market-Maker participation entitlement when combined with the 
crossing participation entitlement at 40% is consistent with the 
existing FLEX rules.\47\
---------------------------------------------------------------------------

    \44\ See existing Rule 24A.5(e)(iv) and Securities Exchange Act 
Release No. 45934 (May 15, 2002), 67 FR 36276 (May 23, 2002) (SR-
CBOE-2002-09) (order approving a rule change relating to the 
allocation of orders for Appointed Market-Makers in FLEX Index 
Options).
    \45\ See, e.g., Rule 8.87, Participation Entitlement of DPMs and 
e-DPMs, which applies a DPM/e-DPM participation entitlement after 
all public customer orders in the limit order book are satisfied.
    \46\ See proposed Rule 24B.5(d)(2)(ii).
    \47\ See note 44, supra.
---------------------------------------------------------------------------

    The following is an example how the allocation will operate: Assume 
a FLEX Equity Option class has applied a 20% crossing participation 
entitlement and a 40% FLEX Appointed Market-Maker participation 
entitlement (when there are two other FLEX Market-Makers at the same 
price). At the end of an electronic RFQ, the interest representing the 
best offer of $1.20 considering the responsive FLEX Quotes is composed 
of interest received in the following order: 75 contracts from FLEX 
Market-Maker A, 300 contracts from FLEX Appointed Market-Maker B, and 
50 contracts from FLEX Market-Maker C. If the Submitting Member submits 
an order to buy 100 contracts at $1.20 and intends to cross the order, 
the allocation among the contra-parties will be as follows: 20 
contracts to the Submitting Member (20% of 100),\48\ 20 contracts to 
FLEX Appointed Market-Maker B (greater of the participation entitlement 
of 20 contracts \49\ or the price/time allocation of 5 contracts), and 
60 contracts to FLEX Market-Maker A (based on time priority).
---------------------------------------------------------------------------

    \48\ In the event there were FLEX Orders resting in the Book at 
$1.20 or FLEX Quotes for the account of public customers or non-
member broker-dealers at $1.20, such FLEX Orders and FLEX Quotes 
would have priority over the Submitting Member's participation 
entitlement. See proposed Rule 24B.5(a)(1)(iii)(D).
    \49\ The participation entitlement is the lesser of: (a) 40% of 
the remaining balance, which is 32 contracts (40% of 80) and (b) 40% 
of the original order minus the crossing entitlement, which is 20 
contracts (40% of 100 minus 20).
---------------------------------------------------------------------------

    As with the existing FLEX rules, the proposed FLEX Hybrid Trading 
System rules also provide that all transactions must be in compliance 
with Section 11(a) of the Act \50\ and the rules promulgated 
thereunder. Section 11(a)(1) prohibits a member of a national 
securities exchange from effecting transactions on that exchange

[[Page 50142]]

for its own account, the account of an associated person, or an account 
over which it or its associated person exercises investment discretion 
(collectively referred to herein as ``proprietary'' orders) unless an 
exception applies. First enacted as part of the Securities Acts 
Amendments of 1975,\51\ Section 11(a) was intended by Congress to 
address trading advantages enjoyed by exchange members and conflicts of 
interest in money management.\52\ In particular, as noted by the 
Commission, Congress was concerned about members benefiting in their 
proprietary transactions from special trading advantages--such as the 
ability to ``execute decisions faster than public investors.'' \53\
---------------------------------------------------------------------------

    \50\ 15 U.S.C. 78k(a).
    \51\ See Pub. L. No. 94-29, 89 Stat. 97 (June 4, 1975).
    \52\ See Securities Reform Act of 1975, Report of the House 
Comm. on Interstate and Foreign Commerce, H.R. Rep. No. 94-123, 94th 
Cong., 1st Sess. (1975) (``House Report''); Securities Acts 
Amendments of 1975, Report of the Senate Comm. on Banking, Housing 
and Urban Affairs, S. Rep. No. 94-75, 94th Cong., 1st Sess. (1975).
    \53\ See Securities Exchange Act Release Nos. 14563 (March 14, 
1978), 43 FR 11542, 11543 (March 17, 1978); 14713 (April 27, 1978), 
43 FR 18557, 18558 (May 1, 1978) (``1978 Release II''); 15533 
(January 29, 1979), 44 FR 6084, 6092 (January 31, 1979) (``1979 
Release''). Telephone conversation between Jennifer Lamie, Assistant 
General Counsel, CBOE, and Terri Evans, Special Counsel, Division, 
Commission, on August 22, 2007.
---------------------------------------------------------------------------

    Where principal transactions contribute to the fairness and 
orderliness of exchange markets or do not reflect any time and place 
trading advantages, they are excepted from the prohibition. Among the 
transactions excepted under Section 11(a)(1) are those by a dealer 
acting in the capacity of a market maker,\54\ bona fide arbitrage or 
hedge transactions,\55\ and transactions made to offset errors.\56\
---------------------------------------------------------------------------

    \54\ See Section 11(a)(1)(A) of the Act, 15 U.S.C. 78k(a)(1)(A).
    \55\ See Section 11(a)(1)(D) of the Act, 15 U.S.C. 78k(a)(1)(D).
    \56\ See Section 11(a)(1)(F) of the Act, 15 U.S.C. 78k(a)(1)(F).
---------------------------------------------------------------------------

    Rule 11a2-2(T) under the Act, commonly referred to as the ``effect 
versus execute'' exemption rule, provides an exception in addition to 
those delineated in the statute.\57\ Rule 11a2-2(T) permits an exchange 
member, subject to certain conditions, to effect transactions for 
covered accounts by arranging for an unaffiliated member to execute the 
transactions on the exchange. To comply with the rule's conditions, a 
member (i) Must transmit the order from off the exchange floor; (ii) 
must not participate in the execution of the transaction once it has 
been transmitted to the member performing the execution; \58\ (iii) 
must not be affiliated with the executing member; and (iv) with respect 
to an account over which the member has investment discretion, neither 
the member nor its associated person may retain any compensation in 
connection with effecting the transaction excepted as provided in the 
rule.
---------------------------------------------------------------------------

    \57\ 17 CFR 240.11a2-2(T). In addition to the application of 
Rule 11a2-2(T), members of the Exchange who are registered as market 
makers may also take advantage of the market-maker exemption from 
Section 11(a), at least for securities in which they make a market. 
See note 54, supra.
    \58\ The member may, however, participate in clearing and 
settling the transaction.
---------------------------------------------------------------------------

    As described by the Commission, these four requirements--off-floor 
transmission, non-participation in order execution, execution through 
an unaffiliated member, and non-retention of compensation for 
discretionary accounts--were ``designed to put members and non-members 
on the same footing, to the extent practicable, in light of the 
purposes of Section 11(a).'' \59\ If a transaction meets the 
requirements of the ``effect versus execute'' rule, it will be deemed 
to be ``consistent with the purpose of Section 11(a)(1) of the Act, the 
protection of investors, and the maintenance of fair and orderly 
markets.'' \60\
---------------------------------------------------------------------------

    \59\ See 1978 Release II, 43 FR at 18560.
    \60\ Rule 11a2-2(T)(e) under the Act, 17 CFR 240.11a2-2(T)(e).
---------------------------------------------------------------------------

    The Exchange believes that proprietary FLEX Orders originating from 
off the Exchange's trading floor and entered into the FLEX Book 
(whether to rest or the ``hit'' the Book) would qualify for Rule 11a2-
2(T). The electronic platform component of the Book would place all of 
these users--both members and non-members--on the ``same footing,'' as 
intended by Rule 11a2-2(T). Given the Book's automated matching and 
execution services, no Exchange member would enjoy any special control 
over the time of execution or special order handling advantages for 
orders executed electronically via the Book, because such orders would 
be centrally processed for execution by computer, as compared to being 
handled by a member through bids and offers on the trading floor. 
Because the electronic trading platform components are designed to 
prevent any Exchange members from gaining any time and place 
advantages, the Exchange believes that the electronic trading platform 
component of the Book satisfies the four requirements of the ``effect 
versus execute'' rule as well as the general policy objectives of 
Section 11(a).
    Rule 11a2-2(T) requires proprietary orders to be transmitted from 
off the exchange floor. In considering the application of this 
requirement to a number of automated trading and electronic order-
handling facilities operated by national securities exchanges, the 
Commission has deemed the off-floor requirement to be met if the order 
is transmitted from off the floor directly to the exchange floor by 
electronic means.\61\ Because the FLEX Hybrid Trading System permits 
remote entry of trading interests, the Exchange believes that members' 
proprietary orders that are entered from off the Exchange's trading 
floor and electronically received by the Book satisfy the off-floor 
transmission requirement for the purposes of the ``effect versus 
execute'' rule.
---------------------------------------------------------------------------

    \61\ Among the systems considered by the Commission are (1) the 
Philadelphia Stock Exchange's VWAP Trading System; (2) the Pacific 
Exchange's (``PCX'') Application of OptiMark; (3) Chicago Match; (4) 
the Amex's Post Execution Reporting System and the Amex Switching 
System (see 1979 Release, 44 FR at n.25); (5) the Intermarket 
Trading System; (6) the Multiple Dealer Trading Facility of the 
Cincinnati Stock Exchange; (7) the PCX's Communications and 
Execution System (``COMEX''); and (8) the Phlx's Automated 
Communications and Execution System (``PACE'') (see 1979 Release, 44 
FR at nn. 19-35).
---------------------------------------------------------------------------

    The ``effect versus execute'' rule further provides that the 
exchange member and its associated person may not participate in the 
execution of the transaction once the order has been transmitted. This 
requirement was included to prevent members with their own brokers on 
the exchange floor from using those persons to influence or guide their 
orders' execution. This requirement does not preclude members from 
canceling or modifying orders, or from modifying the instructions for 
executing orders, after they have been transmitted to the floor. Such 
cancellations or modifications, however, also must be transmitted from 
off the exchange floor.\62\ The Exchange believes that a proprietary 
FLEX Order entered in the Book meets the non-participation requirement. 
Upon submission to the Book, such a proprietary order would enter the 
queue and be executed against other orders in the Book based on an 
established matching algorithm. The execution depends not on the 
Exchange member, but rather, upon what other orders are resident in the 
Book and where the order is ranked based on the price-time priority 
ranking algorithm and FLEX Appointed Market-Maker participation 
overlay. Therefore, at no time following submission of an order is an 
Exchange member able to acquire control or influence over the result or 
timing of orders generated. That is, unlike a floor broker who 
currently may

[[Page 50143]]

enjoy a trading advantage inherent to being present on an exchange 
floor for transactions being executed on that floor, no Exchange member 
would be permitted to take advantage of any non-member through use of 
the Book. As a result, the Exchange believes the non-participation 
requirement is met where these types of Exchange member orders are 
matched and executed automatically through the Book.
---------------------------------------------------------------------------

    \62\ See Securities Exchange Act Release No. 14563 (March 14, 
1978).
---------------------------------------------------------------------------

    Although Rule 11a2-2(T) contemplates having an order executed by an 
exchange member who is unaffiliated with the member initiating the 
order, the Commission has recognized in the past that this requirement 
is not applicable where automated exchange facilities are used. For 
example, in considering the operation of COMEX and PACE, among other 
systems, the Commission noted that, while there is no independent 
executing exchange member, the execution of the order is automatic once 
it has been transmitted into the systems.\63\ Because the design of 
these systems ensures that a member does not possess any special or 
unique trading advantages in handling its order after transmitting it 
to the exchange floor, the Commission has stated that executions 
obtained through these systems satisfy the independent execution 
requirement of Rule 11a2-2(T).\64\ The Exchange believes that this 
principle is directly applicable to the Book; the design of the Book 
ensures that an Exchange member does not have any special or unique 
trading advantages in handling its FLEX Orders after transmission. 
Accordingly, the Exchange believes that an Exchange member effecting a 
transaction by utilizing the System to enter a FLEX Order into the Book 
satisfies the requirement for execution through an unaffiliated member.
---------------------------------------------------------------------------

    \63\ See 1979 Release.
    \64\ See id.
---------------------------------------------------------------------------

    The exemption in Rule 11a2-2(T) states that, in the case of a 
transaction effected for any account for which the initiating member 
exercises investment discretion, in general, the member may not retain 
compensation for effecting the transaction. As a prerequisite to the 
use of the Book, if an Exchange member is to rely on Rule 11a2-2(T) for 
a managed account transaction, the Exchange member must comply with the 
limitations on compensation as set forth in paragraph (a)(2)(iv) of the 
``effect versus execute'' rule.
    The Exchange believes that these types of proprietary orders, when 
entered into the Book, satisfy the four requirements of the ``effect 
versus execute'' rule as well as the general policy objectives of 
Section 11(a) of the Act. The proposed rule change is beneficial 
because it will facilitate transactions in securities and will remove 
impediments to and perfect the mechanism of a free and open market. The 
proposed rule change will place FLEX users, members, and non-members, 
on the ``same footing,'' as intended by Rule 11a2-2(T). In light of the 
aforementioned, CBOE believes, under its proposal, no member that 
submits a FLEX Order will be able to engage in proprietary trading in a 
manner inconsistent with Section 11(a) of the Act.
    Lastly, the Exchange notes that the text of proposed Rule 
24B.5(b)(2) would provide that a proprietary order that is entered on 
behalf of a member relying on the ``G'' exemption \65\ may not be 
submitted as a FLEX Order to rest in the Book. Instead, a priority 
order of a member relying on the ``G'' exemption may be executed only 
as a FLEX Order entered to ``hit'' the Book (or as part of an 
electronic or open-outcry RFQ).\66\ To the extent the proprietary order 
is not executed in whole or in part as soon as it hits the Book, the 
order must be immediately cancelled by the member. A member relying on 
the ``G'' exemption would also have to satisfy the other requirements 
of that exemption.
---------------------------------------------------------------------------

    \65\ 17 CFR 240.11a1-1(T).
    \66\ Any member relying on the ``G'' exemption as part of the 
open-outcry RFQ mechanics must yield priority to any bid (offer) at 
the same price that is represented in the Book and all FLEX Quotes 
that have priority over the Book. See note 36, supra and related 
discussion.
---------------------------------------------------------------------------

    The Exchange believes that members relying on the ``G'' exemption 
as an exemption to the Section 11(a)(1) requirements must comply with 
the requirements of that exemption before executing a proprietary 
order, including the requirement to yield priority to any bid or offer 
at the same price for the account of a person who is not, or is not 
associated with, a member (a ``non-member''), irrespective of the size 
of any such bid or offer or the time when entered. Because the FLEX 
Hybrid Trading System will not always distinguish between member and 
non-member broker-dealer orders, the proposed restrictions of allowing 
the ``G'' exemption to be utilized only in open outcry on the physical 
floor of the Exchange (where the Member can manually yield priority), 
electronically as part of an electronic RFQ (where the System is 
programmed to yield to the Book and FLEX Quotes for the account of 
public customers and non-member broker-dealers), or electronically as a 
FLEX Ordered entered to ``hit'' the Book provided the order is 
immediately cancelled to the extent it is not executed in whole or in 
part (where the Member would be the only contra-party on that side of 
the transaction) are intended to enforce the requirement that a member 
relying on the ``G'' exemption yield priority to non-members.
(e). FLEX Standard Minimum Increments
    Subparagraph (e) of proposed Rule 24B.5 describes the proposed 
standard minimum increments applicable to FLEX bids and offers as 
follows.
     FLEX Index Options: The applicable increments for FLEX 
Index Options will be identical to the increments in the existing FLEX 
rules, which permit decimal bids and offers in the designated currency 
that meet or exceed certain minimum parameters.\67\ For example, the 
minimum increment for U.S. dollars is $0.01 (or such other minimum as 
the appropriate Procedure Committee may set from time to time to ensure 
fair and orderly markets). By comparison, the standard minimum 
increment applicable to Non-FLEX Index Options is generally $0.10 for 
simple bids and offers in series quoted at or above $3 a contract and 
$0.05 for simple bids and offers in series quotes below $3 a 
contract.\68\
---------------------------------------------------------------------------

    \67\ See existing Rule 24A.5(g), which is proposed to be 
renumbered to Rule 24A.5(f), and proposed Rule 24B.5(e).
    \68\ See Rule 6.42, Minimum Increments for Bids and Offers. The 
$0.10 and $0.05 increments are applicable to simple orders. Under 
Rule 6.42(4), a smaller increment applies with respect to multi-part 
complex orders. In addition, under other CBOE rules, a smaller 
increment may be applicable to simple orders. See, e.g., Rule 6.74A, 
Automated Improvement Mechanism (``AIM''), which is an automated 
auction process that permits price improvement in increments as 
small as $0.01.
---------------------------------------------------------------------------

     FLEX Equity Options: The applicable increments for FLEX 
Equity Options will be determined by the appropriate Procedure 
Committee on a class-by-class basis, but may not be smaller than $0.01. 
This represents a change from the existing FLEX rules, under which the 
trading increments applicable to FLEX Equity Options are the same as 
those that are applicable to Non-FLEX Equity Options (i.e., $0.10 for 
simple bids and offers in series quoted at or above $3 a contract, 
$0.05 for simple bids and offers in series quoted below $3 a contract, 
and $0.01 for series quoted in the penny pilot program).\69\ Thus, 
similar to the existing practice for FLEX Index Options, FLEX Equity 
Options bids and offers would now be permitted in $0.01 increments for 
simple bids and offers.
---------------------------------------------------------------------------

    \69\ See CBOE Rule 6.42(3).

---------------------------------------------------------------------------

[[Page 50144]]

    The Exchange believes this change in the standard minimum increment 
applicable to FLEX Equity Options is consistent with the existing 
policy and procedure for FLEX Index Options. The Exchange notes that, 
given the unique nature of FLEX trading occurring primarily through the 
RFQ auction process and limited amount of secondary trading that occurs 
and is anticipated to occur in FLEX Options,\70\ it is not expected 
that this change in increment will have any detrimental impact on 
system capacity or on trading in Non-FLEX Equity Options overlying the 
same classes. The Exchange also believes that utilizing a $0.01 
increment is reasonable and appropriate and will better accommodate 
trading in FLEX Equity Options which are subject to certain minimum 
value size requirements and which, if otherwise traded over-the-
counter, would not be subject to such restrictions on trading increment 
and size. CBOE believes market participants benefit from being able to 
trade these customized options in an exchange environment in several 
ways, including, but not limited to the following: (1) Enhanced 
efficiency in initiating and closing out positions; (2) increased 
market transparency; and (3) heightened contra-party creditworthiness 
due to the role of OCC as issuer and guarantor of FLEX Options.
---------------------------------------------------------------------------

    \70\ The Exchange also notes that, in Non-FLEX Equity Option 
class, certain bids and offers are already permitted in $0.01 
increments. See notes 68 and 69, supra.
---------------------------------------------------------------------------

(D). FLEX Market-Maker Appointments & Obligations (Proposed Rule 24B.9)
    Proposed Rules 24B.9, FLEX Market-Maker Appointments and 
Obligations, prescribes the types of FLEX Market-Makers that may be 
appointed and applicable quoting obligations with respect to the FLEX 
Hybrid Trading System platform. This proposed rule differs from Rule 
24A.9, which pertains to appointments and quoting obligations with 
respect to the FLEX RFQ System platform, in various respects including 
that the applicable Market-Maker categories and the number appointed 
within each class are being revised.
    As with the existing FLEX rules, the Exchange is proposing to limit 
FLEX Market-Maker appointments to CBOE members that are registered with 
the Exchange as Market-Makers. Under the proposed appointment 
provisions, FLEX Qualified Market-Makers would also be required to 
maintain an appointment in at least one Non-FLEX option class listed on 
the Exchange. FLEX Market-Makers are currently, and under the proposed 
new Rules would continue to be, designated as specialists on the CBOE 
for all purposes under the Act. In addition, with respect to the 
categories of FLEX Market-Makers, there will continue to be two 
categories: FLEX Appointed Market-Makers and FLEX Qualified Market-
Makers.
    Under the existing FLEX Rules, the categories and number of FLEX 
Market-Makers appointed to a given class depends on whether it is for a 
FLEX Equity Option class or FLEX Index Option class:
     For FLEX Equity Options, the existing rules generally call 
for five or more FLEX Qualified Market-Makers to be appointed to each 
class; provided, however, that the appropriate Exchange Market 
Performance Committee can determine to appoint two or more FLEX 
Appointed Market-Makers to such classes in lieu of appointing FLEX 
Qualified Market-Makers.
     For FLEX Index Options, the existing rules call for two or 
more FLEX Appointed Market-Makers to be appointed to each class and for 
settlement in one or more currencies.
    The proposed rule for the FLEX Hybrid Trading System platform, as 
well as corresponding changes to the existing rule for the FLEX RFQ 
System platform, would eliminate these distinctions between equity and 
index products, and will instead provide that the Exchange will appoint 
two or more FLEX Qualified Market-Makers to each FLEX Index Option of a 
given class and currency and to each FLEX Equity Option class.\71\
---------------------------------------------------------------------------

    \71\ As compared to the existing FLEX rules, the proposal would 
replace various references to ``appropriate Market Performance 
Committee'' with the ``Exchange.'' Certain of these changes make the 
rule consistent with current practice and procedures. Additionally, 
CBOE can continue to delegate to the appropriate Market Performance 
Committee various duties and responsibilities.
---------------------------------------------------------------------------

    Under the proposed appointment procedures, a registered Market-
Maker may apply on a form prescribed by the Exchange to be a ``FLEX 
Qualified Market-Maker'' in one or more classes of FLEX Options. From 
among the applicants, the Exchange would appoint two or more FLEX 
Qualified Market-Makers to each FLEX Index Option of a given class and 
settlement currency, and two or more FLEX Qualified Market-Makers to 
each FLEX Equity Option of a given class. In making such appointments 
and in taking other action with respect to FLEX Qualified Market-
Makers, the Exchange shall take into account the factors enumerated in, 
and shall refer to the requirements of, Rule 8.3, Appointment of 
Market-Makers. In addition, as discussed above, a proposed new 
requirement would be that, as a condition to receiving and maintaining 
a FLEX Qualified Market-Maker appointment in a FLEX Index Option class 
(or a FLEX Equity Option class, as applicable,) the FLEX Qualified 
Market-Maker must maintain an appointment in one or more Non-FLEX Index 
Option classes (or one or more Non-FLEX Equity Option classes, as 
applicable).\72\ Such Non-FLEX Option class appointment(s) need not be 
in a class(es) that has the same underlying index (or security) as the 
appointed FLEX Option class.
---------------------------------------------------------------------------

    \72\ Market-Makers that are registered and appointed to trade 
Non-FLEX Options are subject to certain market-making obligations, 
including obligations respecting quote widths, continuous electronic 
quoting obligations, and continuous open-outcry quoting obligations. 
See CBOE Rule 8.7, Obligations of Market-Makers.
---------------------------------------------------------------------------

    Notwithstanding the above, under the proposed appointment 
procedures, the appropriate Market Performance Committee may determine 
to solicit applications and appoint (i) One or more FLEX Appointed 
Market-Makers in addition to appointing FLEX Qualified Market-Makers to 
such classes or (ii) two or more FLEX Appointed Market-Makers in lieu 
of appointed FLEX Qualified Market-Makers. Thus, under this revised 
structure that will be applicable to both trading platforms, a FLEX 
Option class could be structured as a FLEX Qualified Market-Maker-only 
crowd with at least two participants, a mixed FLEX Qualified/Appointed 
Market-Maker crowd with at least three participants, or a FLEX 
Appointed Market-Maker-only crowd with at least two participants. 
Providing for the flexibility to determine the eligible categories of 
market-maker participants is similar to the existing rules regarding 
FLEX Equity Option appointments and other Exchange Rule regarding the 
appointment of market-makers in Non-FLEX Options.\73\
---------------------------------------------------------------------------

    \73\ See, e.g., CBOE Rules 8.14, Index Hybrid Trading System 
Classes: Market-Maker Participants, and 8.95, Allocation of 
Securities and Location of Trading Crowds and DPMs.
---------------------------------------------------------------------------

    The applicable market-making restrictions and obligations of FLEX 
Market-Makers will continue to be applied in a similar manner, except 
that new obligations respecting electronic RFQs and the Book will be 
specified. Specifically: (i) A FLEX Appointed Market-Maker will have an 
obligation to respond to any open-outcry RFQ and to a percentage of 
electronic RFQs \74\ in the Appointed Market-Maker's appointed classes 
in the prescribed minimum

[[Page 50145]]

response size; and (ii) a FLEX Qualified Market-Maker will be 
permitted, but not obligated, to respond to RFQs but, when responding, 
must respond in the prescribed minimum response size. In addition, 
similar to the existing FLEX rules, under the FLEX Hybrid Trading 
System rules a FLEX Official may call upon FLEX Market-Makers appointed 
in a class of FLEX Options to submit FLEX Quotes in response to a 
specific Request for Quotes in that class of FLEX Options whenever in 
the opinion of the FLEX Official the interests of a fair, orderly, and 
competitive market are best served by such action. Similar to the 
existing FLEX rules, the FLEX Official shall also make such a call upon 
FLEX Market-Makers whenever no FLEX Quotes are made in response to a 
specific Request for Quotes. The ability of a FLEX Official to call on 
FLEX Market-Makers applies to both electronic and open-outcry RFQs. 
Also, as with the existing FLEX rules, under the FLEX Hybrid Trading 
System rules FLEX Appointed Market-Makers and FLEX Qualified Market-
Makers need not provide continuous FLEX Quotes or quote a minimum bid-
offer spread in FLEX Options, except that certain maximum bid-offer 
spread requirements do apply for FLEX Market-Makers quoting in FLEX 
Options with a European-style exercise, an underlying of the S&P 100 
Index or the S&P 500 Index, and two weeks or more to expiration and two 
years or less to expiration.\75\ FLEX Market-Makers also need not enter 
FLEX Orders into the electronic book, but to the extent they do so, 
such orders must satisfy the applicable minimum size requirements.
---------------------------------------------------------------------------

    \74\ The applicable electronic RFQ response percentage will be 
determined by the appropriate Procedure Committee and will not be 
less than 80%. See proposed Rules 24B.4(a)(5)(iv) and 24B.9(c).
    \75\ See existing Rule 24A.9(e) and proposed Rule 24B.9(e).
---------------------------------------------------------------------------

    These market-making restrictions and obligations are tailored to 
reflect the particular nature of FLEX Options, which are customized to 
fit particular investor needs, and the particular nature of FLEX 
trading, which is anticipated to continue to have limited secondary 
trading in any series due to the diversity inherent in FLEX Options. 
The restrictions and obligations are designed to assure that each FLEX 
Market-Maker's course of dealings as a FLEX Market-Maker will 
contribute significantly and positively toward the maintenance of fair 
and orderly markets in FLEX Options on the Exchange and will, 
therefore, be consistent with the protection of investors and the 
purposes of the Act and Section 11(a) thereof. As proposed, FLEX 
Market-Makers will be required to engage generally in a course of 
dealings which will enhance the Exchange market and positively 
contribute to depth and liquidity. These objectives are basic to the 
major purposes of the Act and, thus, are consistent with the purposes 
of Section 11(a) and the protection of investors. Therefore, the 
Exchange believes that a FLEX Market-Maker who initiates the purchase 
or sale of securities as provided in the proposed Rules will be 
``acting in the capacity of market maker'' within the meaning of 
Section 11(a)(1)(A) of the Act.\76\
---------------------------------------------------------------------------

    \76\ The term ``market maker'' is defined in Section 3(a)(38) of 
the Act, 15 U.S.C. 78c(a)(38), to include ``any dealer who, with 
respect to a security, holds himself out (by entering quotations in 
an interdealer communications system or otherwise) as being willing 
to buy and sell such security for his own account on a regular or 
continuous basis.''
---------------------------------------------------------------------------

(E). FLEX Officials (Proposed Rule 24B.14)
    Existing FLEX Rule 24A.12 currently provides that a FLEX Post 
Official is responsible for (i) Reviewing the conformity of FLEX 
Requests for Quotes and FLEX Quotes to the terms and specifications 
contained in Rule 24A.4, (ii) posting FLEX Requests for Quotes for 
dissemination, (iii) determining the BBO, (iv) ensuring that FLEX 
contracts are executed in conformance with the priority principles set 
forth in Rule 24A.5(e), (v) calling for Indicative FLEX Quotes in 
accordance with the requirements of Rule 24A.12(c), and (vi) calling 
upon FLEX Qualified Market-Makers to make FLEX Quotes in specific 
classes of FLEX Equity Options as provided in Rule 24A.9(c).
    Proposed Rule 24B.14, FLEX Official, corresponds with existing Rule 
24A.12 and describes the functions of an Exchange FLEX Post Official 
(referred to in the proposed new rules as simply a ``FLEX Official'') 
for the new FLEX Hybrid Trading System. Under proposed Rule 24B.14, a 
FLEX Official will continue to be responsible for reviewing the 
conformity of open-outcry FLEX Requests for Quotes to the applicable 
terms and specifications in proposed Rule 24B.4. However, because open-
outcry FLEX Quotes will now be provided to the Submitting Member, the 
FLEX Official will no longer be responsible for reviewing such FLEX 
Quotes for conformity to the applicable terms and specifications or 
determining the BBO.\77\ In addition, the proposed rule provides that a 
FLEX Official may nullify a FLEX transaction, whether executed in open 
outcry or electronically, if the transaction is determined by the FLEX 
Official to not conform to the terms and specifications contained in 
Rule 24B.4 or to the priority principles set forth in Rule 24B.5. 
However, a trade subject to adjustment or nullification pursuant to 
Rule 6.25, Nullification and Adjustment of Equity Options Transactions, 
or Rule 24.16, Nullification and Adjustment of Transactions in Index 
Options, Options on ETFs and Options on HOLDRS, shall be subject to the 
procedures set forth in Rule 6.25 or 24.16.
---------------------------------------------------------------------------

    \77\ See existing Rule 24A.12(b)(i)--(iv) (providing that a FLEX 
Post Official is responsible for reviewing the conformity of FLEX 
RFQs and FLEX Quotes to the terms and specifications contained in 
existing Rule 24A.4, posting FLEX RFQs for dissemination, 
determining the BBO, and ensuring that FLEX contracts are executed 
in conformance with the priority principles set forth in Rule 
24A.5(e)). By comparison, to initiate the open-outcry RFQ process 
under the proposed FLEX Hybrid System, a Submitting Member must 
submit a Request for Quotes to the FLEX Official. After providing a 
Request for Quotes in proper form to the FLEX Official, the 
Submitting Member must immediately announce the terms and 
specifications of the Request for Quotes to the trading crowd for 
the FLEX Option by public outcry. See proposed Rule 24B.5(a)(2)(i). 
To initiate a FLEX transaction using the electronic RFQ process, a 
Submitting Member submits a Request for Quotes to the System, not 
the FLEX Official. On receipt of a Request for Quotes in the proper 
form, the System causes the terms and specifications to be 
communicated to FLEX Traders. See proposed Rule 24B.5(a)(1)(i).
---------------------------------------------------------------------------

    Similar to the existing FLEX rules, a FLEX Official will also be 
responsible for calling upon FLEX Market-Makers, whether Qualified or 
Appointed to a given class, to make FLEX Quotes in specific classes, as 
provided in proposed Rule 24B.9.\78\
---------------------------------------------------------------------------

    \78\ By comparison, the existing FLEX Rule 24A.12 provides for 
only the FLEX Official to call upon FLEX Qualified Market-Makers. 
See existing Rule 24A.12(b)(vi).
---------------------------------------------------------------------------

(F). Other FLEX Hybrid Trading System Rules
    The remaining rules that are proposed to be included in Chapter 
XXIVB are the same as, or closely modeled after, the existing FLEX 
rules. For example, proposed Rules 24B.2, Hours of Trading; 24B.3, 
Trading Rotations; 24B.10, Related Securities; 24B.15, Nonavailability 
of RAES; and 24B.16, Inapplicability of Split Price and Accommodation 
Liquidation Rules, are identical to Rules 24A.2, 24A.3, 24A.11, 24A.16, 
and 24A.17, respectively. Proposed Rules 24B.6, Discretionary 
Transactions, and 24B.13, Letter of Guarantee or Authorization are 
virtually identical to Rules 24A.6 and 24A.15, respectively, except for 
non-substantive grammatical changes.
    Proposed Rules 24B.11, FLEX Index Appointed Market-Maker Account 
Equity, and 24B.12, FLEX Index Appointed Market-Maker Financial 
Requirements, are virtually identical to Rules 24A.13 and 24A.14, 
respectively, except that revisions are being made to clarify that 
these rules apply only to

[[Page 50146]]

FLEX Index Appointed Market-Makers.\79\
---------------------------------------------------------------------------

    \79\ The special account equity and financial requirements under 
existing Rules 24A.13 and 24A.14 only apply to ``FLEX Appointed 
Market-Makers,'' who currently are appointed only to FLEX Index 
Option classes and currently are subject to certain heightened FLEX 
Quote minimum value size requirements under Rule 24A.4(a)(4)(iv). 
Given the proposed changes to the FLEX Market-Maker appointments 
discussed above, which would allow for the appointment of a FLEX 
Equity Appointed Market-Maker, proposed Rules 24B.11 and 24B.12 make 
clear that these special account equity and financial requirements 
would apply only to FLEX Index Appointed Market-Makers (who would 
continue to be subject to the heightened FLEX Quote, as well as FLEX 
Order, minimum value size requirements under proposed Rule 
24B.4(a)(5)(iv)) and not FLEX Equity Appointed Market-Makers (who 
would not be subject to heightened minimum value size requirements). 
Corresponding changes are also being proposed to existing Rules 
24A.13 and 24A.14.
---------------------------------------------------------------------------

    Proposed Rules 24B.7, Position Limits and Reporting Requirements, 
and 24B.8, Exercise Limits, are modeled after existing Rules 24A.7 and 
24A.8. However, the Exchange is proposing to make certain revisions to 
existing Rules 24A.7 and 24A.8, and to include the same language in 
proposed Rules 24B.7 and 24B.8, relating to the applicable position and 
exercise limits for FLEX Index Options and the aggregation of certain 
FLEX and non-FLEX positions.
    Specifically, the current text indicates that there are no position 
limits for any broad-based FLEX Index Options. The proposed text 
provides that, while there are no position limits for FLEX DJX, NDX, 
OEX, or SPX options contracts,\80\ all other FLEX Index Options 
(whether broad-based or not) will be subject to position limits fixed 
by the Exchange within prescribed parameters set forth in existing Rule 
24A.7 and proposed Rule 24B.7. Specifically, the rules would provide 
that:
---------------------------------------------------------------------------

    \80\ The Exchange notes that these four broad-based FLEX Index 
Options classes correspond with the Non-FLEX DJX, NDX, OEX, and SPX 
options classes, which currently have no position limits under Rule 
24.4, Position Limits for Broad-Based Index Options. The Exchange 
also notes that FLEX DJX, NDX, OEX, and SPX options contracts are, 
however, subject to special reporting requirements in accordance 
with existing Rule 24A.7(b). This same reporting requirements are 
included in proposed Rule 24B.7(b).
---------------------------------------------------------------------------

     Other Broad-Based FLEX Index Option Classes: The Exchange-
established position limits with respect to a broad-based FLEX Index 
Option class (other than the four identified above) shall not exceed 
200,000 contracts on the same side of the market.
     Industry-Based FLEX Index Option Classes: The Exchange-
established position limits for an industry-based FLEX Index Option 
class shall not exceed one times the applicable number of Non-FLEX 
Index Option Contracts (whether long or short) of the put class and the 
call class on the same side of the market, as determined on the basis 
of the position limits established pursuant to Rule 24.4A, Position 
Limits for Industry Index Options; provided, however, the position 
limits for an industry-based FLEX Index Option class shall not exceed 
four times the applicable position limits established pursuant to Rule 
24.4A, instead of one times as provided above, for: (i) The Dow Jones 
Transportation Average or the Dow Jones Utility Average; or (ii) an 
underlying industry-based index that is not a ``narrow-based security 
index,'' as defined under Section 3(a)(55)(B) of the Act.\81\
---------------------------------------------------------------------------

    \81\ 15 U.S.C. 78c(a)(55)(B).
---------------------------------------------------------------------------

     Micro Narrow-Based FLEX Index Option Classes: The 
Exchange-established position limits for a micro narrow-based FLEX 
Index Option class shall not exceed one times the applicable number of 
Non-FLEX Index Option Contracts (whether long or short) of the put 
class and the call class on the same side of the market, as determined 
on the basis of the position limits established pursuant to Rule 24.4B, 
Position Limits for Options on Micro Narrow-Based Indexes As Defined 
Under Rule 24.2(d).
    The rules would also provide that FLEX Option positions shall not 
be aggregated with positions in Non-FLEX Options other than as 
described below, and positions in FLEX Index Options on a given index 
shall not be aggregated with options on any stocks included in the 
index or with FLEX Index Option positions on another index.
     Comparable QIX Options: Commencing at the close of trading 
two business days prior to the last trading day of the calendar, 
positions in P.M. Settled FLEX Index Options (i.e., FLEX Index Options 
having an exercise settlement value determined by the level of the 
index at the close of trading on the last trading day before 
expiration) shall be aggregated with positions in Quarterly Index 
Options on the same index with the same expiration (``comparable QIX 
options'') and shall be subject to the position limits set forth in 
Rule 24.4, 24.4A, or 24.4B, as applicable.
     Comparable Weekly Options: Commencing at the close of 
trading two business days prior to the last trading day of the week, 
positions in FLEX Options that are cash-settled \82\ shall be 
aggregated with positions in Short Term Option Series on the same 
underlying (e.g. same underlying index) with the same means for 
determining exercise settlement value (e.g., opening or closing prices 
of the underlying index) and same expiration (``comparable Weekly 
options'') and shall be subject to the position limits set forth in 
Rule 24.4, 24.4A, 24.4B, or 29.5, as applicable.
---------------------------------------------------------------------------

    \82\ FLEX Index Options and FLEX Credit Default Options are 
cash-settled. FLEX Equity Options are settled by physical delivery. 
See existing Rules 24A.4(b)(4) and (c)(3) and 29.19; see also 
proposed Rules 24B.4(b)(4) and (c)(3).
---------------------------------------------------------------------------

    With respect to exercise limits, the proposed rule text clarifies 
that the exercise limits for FLEX Index Options shall be equivalent to 
the FLEX position limits and that FLEX DJX, NDX, OEX, and SPX options 
shall not be subject to exercise limits.
    Because the maximum FLEX Index Option position and exercise limits 
will now be specifically set out in Rules 24A.7, 24A.8, 24B.7, and 
24B.8 (before the rules simply provided that the limits would be 
``fixed by the Exchange''), the Exchange is also proposing to eliminate 
the requirement that, when CBOE files to trade a new Non-FLEX Index 
Option, it also propose the position and exercise limits that will 
apply for the related FLEX Index Option.\83\
---------------------------------------------------------------------------

    \83\ See Securities Exchange Act Release No. 43108 (August 2, 
2000), 65 FR 48770 (August 9, 2000) (SR-CBOE-00-26) (immediately 
effective proposal providing for the listing and trading of FLEX 
Options on all of the indices on which the Exchange lists and trades 
Non-FLEX Options). As part of that rule change, CBOE represented 
that, when it files a proposed rule change to list and trade a new 
Non-FLEX Index Option, it will also propose to list and trade the 
FLEX Index Options in the same file and include proposed position 
and exercise limits.
---------------------------------------------------------------------------

* * * * *
    The Exchange believes that, while retaining the existing advantages 
of exchange-traded FLEX Options, the FLEX Hybrid Trading System will 
streamline and automate the FLEX trading process and establish 
increased price transparency. The Exchange believes that the FLEX 
Hybrid Trading System will offer a legitimate alternative for 
institutional sell-side firms and potentially buy-side customers to 
taking their order flow to the OTC market. Additionally, the FLEX 
Hybrid Trading System will offer the CBOE market-making community a 
channel to the FLEX Options market.
(2). Proposed Changes to Existing FLEX Rules (Chapter XXIVA) & Related 
Cross-References
    The Exchange is also proposing certain changes to the existing FLEX 
rules that correspond to the proposed rules discussed above in order 
that there be consistency between the two sets of rules. These changes 
include revising provisions pertaining to the various categories of 
FLEX Market-Makers and related obligations in Rules 24A.4,

[[Page 50147]]

24A.5, 24A.9, 24A.13, 24A.14, and 24A.15; the applicable crossing and 
Appointed Market-Maker participation entitlements and crossing 
procedures in Rule 24A.5; \84\ the increments applicable to FLEX Equity 
Options in Rule 24A.5; \85\ the position limits applicable to FLEX 
Index Options in Rule 24A.7; and the FLEX Post Official description and 
responsibilities in Rules 24A.1(g) and 24A.12. The term ``FLEX Post 
Official,'' as described in Rules 24A.1(g) and 24A.12 is being revised 
to reflect that, in addition to Exchange employees, such individuals 
can include independent contractors designated by the Exchange to 
perform the FLEX post functions set out in the rules.\86\ In addition, 
the term ``Indicative FLEX Quote'' in Rule 24A.1 and a related 
reference in Rule 24A.12 are being removed. Indicative FLEX Quotes were 
non-binding indications of the market for particular series of FLEX 
Options that were periodically supplied by Market-Makers and displayed 
on the FLEX communication network. This functionality is no longer 
utilized, so the obsolete references in Rules 24A.1 and 24A.12 are 
being deleted.
---------------------------------------------------------------------------

    \84\ In addition, at the end of existing Rule 24A.5, the cross-
references to other Exchange rules are proposed to be updated to 
clarify that paragraph (d) of CBOE Rule 6.9, Solicited Transactions, 
is superceded in those situations where a Submitting Member 
representing an eligible order and a contra-side order determines to 
take advantage of the crossing participation entitlement provisions 
of Rule 24A.5. The addition of this cross-reference is simply a 
clarification of the current application of Rule 24A.5(e)(iii). 
Specifically, while Rule 6.9(d) provides that non-solicited Market-
Makers and Floor Brokers holding non-solicited discretionary orders 
in the trading crowd will have priority over the solicited person or 
the solicited order to trade with an original order at the best bid 
or offered price, Rule 24A.5(e)(iii) provides the solicited person 
or order with priority over all other parties for an applicable 
crossing participation entitlement, which is proposed to be 
determined by the appropriate Exchange Procedure Committee on a 
class-by-class basis. The cross-references to other Exchange rules 
at the end of proposed Rule 24B.5 will have a similar reference to 
paragraph (d) of Rule 6.9. See also note 22, supra.
    \85\ In addition, at the end of existing Rule 24A.5, the cross-
references to other Exchange rules are proposed to be updated to 
reflect that the provisions of paragraphs (1)-(3) of CBOE Rule 6.42, 
as well as those in paragraph (4) of Rule 6.42 pertaining to SPX and 
OEX complex orders that are not box/spread rolls, are superceded by 
Rule 24A.5(g). Rule 24A.5(g), which is proposed to be renumbered to 
Rule 24A.5(f), sets out the minimum incremental changes for FLEX 
Index Options and proposed minimum incremental changes for FLEX 
Equity Options. The addition of the cross-reference to the various 
provisions of Rule 6.42 is intended to clarify that the minimum 
increment for a simple order in a FLEX Index or Equity Option class 
is as specified in Rule 24A.5, but the minimum increment for a 
multi-part, complex order in a FLEX Index or Equity Option class may 
be expressed in any increment, as provided in Rule 6.42(4). The 
cross-references to other Exchange rules at the end of proposed Rule 
24B.5 will have a similar reference to Rule 6.42.
    \86\ Inclusion of independent contractors within the category of 
persons eligible to be appointed to perform the function of FLEX 
Post Officials is consistent with CBOE rules pertaining to the 
appointment of Exchange PAR Officials. See CBOE Rule 7.12, PAR 
Official. In addition, as with the existing PAR Official 
requirements, the proposed requirements for FLEX Post Officials 
provide that the FLEX Post Official and any designated assistants 
may not be affiliated with any member that is approved to act as a 
Market-Maker, including a FLEX Market-Maker. The proposed 
requirements also provide that the FLEX Post Official and any 
designated assistants shall be compensated exclusively by the 
Exchange, which shall determine the amount and form of compensation, 
and that no Market-Maker, including a FLEX Market-Maker, shall 
directly or indirectly compensate or provide any other form of 
consideration to a FLEX Post Official or any designated assistants.
---------------------------------------------------------------------------

    Finally, cross-references in the Exchange rules are being updated 
to include a corresponding reference to the proposed FLEX Hybrid 
Trading System rules, and various non-substantive grammatical and 
formatting changes are being made throughout.
(3). Sponsored Users (Proposed Rule 6.20A)
    In conjunction with the introduction of the new FLEX Hybrid Trading 
System, CBOE is proposing to add the concepts of Sponsored Users and 
Sponsoring Members to its rules. Sponsored Users would be provided 
electronic access to directly enter and execute orders through a 
Sponsoring Member onto the Exchange's FLEX Hybrid Trading System.
    CBOE is proposing to adopt Rule 6.20A, which will govern electronic 
access for the entry and execution of orders by Sponsored Users with 
authorized access to the System and outline the requirements that 
Sponsored Users and Sponsoring Members would be required to meet prior 
to engaging in a Sponsoring Member/Sponsored User relationship. A 
``Sponsored User'' would be a person, such as an institutional 
investor, who has entered into a sponsorship arrangement with a 
Sponsoring Member for purposes of entering orders on the System. This 
would include entering and responding to electronic RFQs and entering 
FLEX Orders into the Book. A Sponsored User may obtain and maintain 
authorized access to the System only if such access is authorized in 
advance by one or more Sponsoring Members in accordance with the 
provisions of proposed Rule 6.20A, which are substantially similar to 
NYSE Arca Inc. (``NYSEArca'') Rules 7.29 and 7.30.\87\
---------------------------------------------------------------------------

    \87\ In comparison to the NYSEArca rules, proposed Rule 6.20A 
differs in that it will be limited to only the FLEX Hybrid Trading 
System and will also provide that, to the extent the Sponsoring 
Member is not a clearing firm, the Sponsoring Member's clearing 
firm, who must be a CBOE member organization, would have to provide 
CBOE with a Letter of Authorization, accepting responsibility for 
the clearance of the Sponsored User's transactions.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the provisions of Section 6(b) of the Act \88\ and the rules and 
regulations thereunder, in general, and Section 6(b)(5) \89\ in 
particular, in that it is designed to promote just and equitable 
principles of trade, to prevent fraudulent and manipulative acts, to 
remove impediments to and to perfect the mechanism for a free and open 
market and a national market system, and, in general, to protect 
investors and the public interest.
---------------------------------------------------------------------------

    \88\ 15 U.S.C. 78f(b).
    \89\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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

    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 self-regulatory organization 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 is consistent with the Act. Comments may be submitted by any of 
the following methods:

[[Page 50148]]

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml ); or
     Send an e-mail to [email protected]. Please include 
File Number SR-CBOE-2006-99 on the subject line.

Paper Comments

     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-2006-99. 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, 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 the principal office of the Exchange. 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-2006-99 and should be submitted on 
or before September 20, 2007.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\90\
---------------------------------------------------------------------------

    \90\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Nancy M. Morris,
Secretary.
 [FR Doc. E7-17165 Filed 8-29-07; 8:45 am]
BILLING CODE 8010-01-P