[Federal Register Volume 73, Number 238 (Wednesday, December 10, 2008)]
[Notices]
[Pages 75159-75161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29156]


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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59054; File Nos. SR-OCC-2008-13 and SR-OCC-2008-14]


Self-Regulatory Organizations; The Options Clearing Corporation; 
Notice of Filing and Order Granting Accelerated Approval of Proposed 
Rule Changes Relating to iShares COMEX Gold Trust and iShares Silver 
Trust Shares

December 4, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ notice is hereby given that on July 23, 2008, The Options 
Clearing Corporation (``OCC'') filed with the Securities and Exchange 
Commission (``Commission'') proposed rule changes SR-OCC-2008-13 and 
SR-OCC-2008-14 as described in Items I and II below, which items have 
been prepared primarily by OCC. The Commission is publishing this 
notice and order to solicit comments from interested persons and to 
grant accelerated approval to the proposed rule changes.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
---------------------------------------------------------------------------

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

    The proposed rule changes would remove any potential question on 
the jurisdictional status of options or security futures on iShares 
COMEX Gold Trust shares and iShares Silver Trust shares by amending the 
interpretation following the definition of ``fund share'' in Article I, 
Section 1 of OCC's By-Laws.

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

    In its filing with the Commission, OCC included statements 
concerning the purpose of and basis for the proposed rule changes and 
discussed any comments it received on the proposed rule changes. The 
text of these statements may be examined at the places specified in 
Item IV below. OCC has prepared summaries, set forth in sections (A), 
(B), and (C) below, of the most significant aspects of these 
statements.\2\
---------------------------------------------------------------------------

    \2\ The Commission has modified the text of the summaries 
prepared by OCC.
---------------------------------------------------------------------------

(A) Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Changes

    The purpose of the proposed rule changes is to remove any potential 
question on the jurisdictional status of options or security futures on 
iShares COMEX Gold Trust shares and iShares Silver Trust shares by 
amending the interpretation following the definition of ``fund share'' 
in Article I, Section 1 of OCC's By-Laws. On May 30, 2008, the 
Commission approved rule filing SR-OCC-2008-07, which added this 
interpretation with respect to the treatment and clearing of options 
and security futures on SPDR Gold Shares.\3\ Under the proposed rule 
changes, OCC would also (1) clear and treat as securities options any 
option contracts on iShares COMEX Gold shares and iShares Silver Trust 
shares that are traded on securities exchanges and (2) clear and treat 
as security futures any futures contracts on iShares COMEX Gold shares 
and iShares Silver Trust shares.\4\
---------------------------------------------------------------------------

    \3\ Securities Exchange Act Release No. 57895 (May 30, 2008), 73 
FR 32066 (June 5, 2008).
    \4\ The exact language of the interpretation can be found at 
http://www.optionsclearing.com/ publications/rules/proposed_
changes/sr_occ_08_13.pdf and http://www.optionsclearing.com/publications/rules/proposed_changes/sr_occ_08_14.pdf.
---------------------------------------------------------------------------

    In its capacity as a ``derivatives clearing organization'' 
registered as such with the Commodity Futures Trading Commission 
(``CFTC''), OCC also filed the proposed rule changes with the CFTC for 
prior approval by the CFTC pursuant to provisions of the Commodity 
Exchange Act (``CEA'') in order to foreclose any potential liability 
under the CEA based on an argument that the clearing by OCC of such 
options as securities options or that the clearing

[[Page 75160]]

of such futures as security futures constitutes a violation of the CEA. 
The products for which approval is requested are essentially the same 
as the options and security futures on SPDR Gold Shares that OCC 
currently clears pursuant to the rule change referred to above and an 
exemption issued by the CFTC.\5\ OCC believes that this filing raises 
no new regulatory or policy issues.
---------------------------------------------------------------------------

    \5\ Supra note 3. CFTC Order Exempting the Trading and Clearing 
of Certain Products Related to SPDR Gold Trust Shares, 73 FR 31981 
(June 5, 2008).
---------------------------------------------------------------------------

    OCC believes that the proposed interpretation of its By-Laws is 
consistent with the purposes and requirements of Section 17A of the Act 
\6\ because it is designed to promote the prompt and accurate clearance 
and settlement of transactions in securities options and security 
futures, to foster cooperation and coordination with persons engaged in 
the clearance and settlement of such transactions, to remove 
impediments to and perfect the mechanism of a national system for the 
prompt and accurate clearance and settlement of such transactions, and, 
in general, to protect investors and the public interest. It 
accomplishes this purpose by reducing the likelihood of a dispute as to 
the Commission's jurisdiction, or shared jurisdiction in the case of 
security futures, over derivatives based on iShares COMEX Gold Trust 
shares and iShares Silver Trust shares. The proposed rule changes are 
not inconsistent with the By-Laws and Rules of OCC, including any 
proposed to be amended.
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78q- 1.
---------------------------------------------------------------------------

(B) Self-Regulatory Organization's Statement on Burden on Competition

    OCC does not believe that the proposed rule changes would impose 
any burden on competition.

(C) Self-Regulatory Organization's Statement on Comments on the 
Proposed Rule Changes Received From Members, Participants, or Others

    Written comments were not and are not intended to be solicited with 
respect to the proposed rule changes, and none have been received.

III. Commission's Findings and Order Granting Accelerated Approval of 
the Proposed Rule Changes

    Section 17A(b)(3)(F) of the Act requires, among other things, that 
the rules of a clearing agency be designed to promote the prompt and 
accurate clearance and settlement of securities transactions.\7\ By 
amending its By-Laws to help clarify that options and security futures 
on iShares COMEX Gold Trust shares and iShares Silver Trust shares will 
be treated and cleared as securities options or security futures, OCC's 
proposed rule changes should help clarify the jurisdictional status of 
such contracts and accordingly should help to promote the prompt and 
accurate clearance and settlement of securities transactions. In 
accordance with the Memorandum of Understanding entered into between 
the CFTC and the Commission on March 11, 2008, and in particular the 
addendum thereto concerning Principles Governing the Review of Novel 
Derivative Products, the Commission believes that novel derivative 
products that implicate areas of overlapping regulatory concern should 
be permitted to trade in either or both a CFTC- or Commission-regulated 
environment, in a manner consistent with laws and regulations 
(including the appropriate use of all available exemptive and 
interpretive authority).
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78q-1(b)(3)(F).
---------------------------------------------------------------------------

    In addition, the Commission finds good cause, pursuant to Section 
19(b)(2) of the Act,\8\ for approving the proposed rule changes prior 
to the thirtieth day after the publication of notice in the Federal 
Register. The proposed rule changes are similar to the proposal 
previously approved by the Commission regarding the treatment and 
clearing of options and security futures on SPDR Gold Shares.\9\ 
Therefore, the Commission does not believe that the proposed rule 
changes raise any new regulatory issues.
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78s(b)(2).
    \9\ Supra note 3.
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
changes are consistent with the Act. Comments may be submitted by any 
of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml) or
     Send an e-mail to [email protected]. Please include 
File Numbers SR-OCC-2008-13 and SR-OCC-2008-14 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.

All submissions should refer to File Numbers SR-OCC-2008-13 and SR-OCC-
2008-14. 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 changes that 
are filed with the Commission, and all written communications relating 
to the proposed rule changes 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 filings also will be available for 
inspection and copying at the principal office of OCC and on OCC's Web 
site at http://www.optionsclearing.com/publications/rules/proposed_changes/sr_occ_08_13.pdf and http://www.optionsclearing.com/publications/rules/proposed_changes/sr_occ_08_14.pdf. 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 Numbers SR-OCC-2008-13 and SR-OCC-
2008-14 and should be submitted on or before December 31, 2008.

IV. Conclusion

    On the basis of the foregoing, the Commission finds that the 
proposed rule changes are consistent with the requirements of the Act 
and in particular Section 17A of the Act and the rules and regulations 
thereunder.\10\
---------------------------------------------------------------------------

    \10\ In approving the proposed rule changes, the Commission 
considered the proposals' impact on efficiency, competition and 
capital formation. 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

    It is therefore ordered, pursuant to Section 19(b)(2) of the Act, 
that the proposed rule changes (File Nos. SR-OCC-2008-13 and SR-OCC-
2008-14) be and hereby are approved on an accelerated basis.


[[Page 75161]]


    For the Commission by the Division of Trading and Markets, 
pursuant to delegated authority.\11\
---------------------------------------------------------------------------

    \11\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-29156 Filed 12-9-08; 8:45 am]
BILLING CODE 8011-01-P