[Federal Register Volume 74, Number 249 (Wednesday, December 30, 2009)]
[Notices]
[Pages 69161-69163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30916]


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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61223; File No. SR-NYSEAmex-2009-86]


 Self-Regulatory Organizations; NYSE Amex LLC; Notice of Filing 
of Proposed Rule Change Amending Commentary .10 to Rule 915 and 
Commentary .11 to Rule 916

December 22, 2009.

    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that, on December 4, 2009, NYSE Amex LLC (``NYSE Amex'' or the 
``Exchange'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

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

    The Exchange proposes to amend Commentary .10 to Rule 915 and 
Commentary .11 to Rule 916 for the purpose of listing and trading 
options on the shares of the ETFS Silver Trust and the ETFS Gold Trust. 
The text of the proposed rule change is available on NYSE Amex's Web 
site at www.nyse.com, on the Commission's Web site at http://www.sec.gov, at NYSE Amex, and at the Commission's Public Reference 
Room. A copy of this filing is available on the Exchange's Web site at 
www.nyse.com, at the Exchange's principal office and at the 
Commission's Public Reference Room.

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

    In its filing with the Commission, the self-regulatory organization 
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 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Recently, the U.S. Securities and Exchange Commission (``SEC'' or 
``Commission'') authorized the Exchange to list and trade options on 
the SPDR Gold Trust \4\ (``GLD'') and on the iShares COMEX Gold Trust 
(``IAU'') and the iShares Silver Trust (``SLV'').\5\ Now, the Exchange 
proposes to list and trade options on the ETFS Silver Trust (``SIVR'') 
and the ETFS Gold Trust (``SGOL'').
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 57894 (May 30, 
2008), 73 FR 32061 (June 5, 2008) (order approving SR-Amex-2008-15).
    \5\ See Securities Exchange Act Release No. 59055 (December 4, 
2008), 73 FR 238 (December 10, 2008) (order approving SR-Amex-2008-
68).
---------------------------------------------------------------------------

    Currently, Amex Rule 915 deems appropriate for options trading 
Exchange-Traded Fund Shares (``ETFs'' or ``Fund Shares'') that are 
traded on a national securities exchange and are defined as an ``NMS 
stock'' in Rule 600 of Regulation NMS and that represent (i) interests 
in registered investment companies (or series thereof) organized as 
open-end management investment companies, unit investment trusts or 
similar entities that hold portfolios of securities and/or financial 
instruments including, but not limited to, stock index futures 
contracts, options on futures, options on securities and indexes, 
equity caps, collars and floors, swap agreements, forward contracts, 
repurchase agreements and reverse purchase agreements (the ``Financial 
Instruments''), and money market instruments, including, but not 
limited to, U.S. government securities and repurchase agreements (the 
``Money Market Instruments'') comprising or otherwise based on or 
representing investments in indexes or portfolios of securities and/or 
Financial Instruments and Money Market Instruments (or that hold 
securities in one or more other registered investment companies that 
themselves hold such portfolios of securities and/or Financial 
Instruments and Money Market Instruments); or (ii) interests in a trust 
or similar entity that holds a specified non-U.S. currency deposited 
with the trust or similar entity when aggregated in some specified 
minimum number may be surrendered to the trust by the beneficial owner 
to receive the specified non-U.S. currency and pays the beneficial 
owner interest and other distributions on deposited non-U.S. currency, 
if any, declared and paid by the trust; or (iii) commodity pool 
interests principally engaged,

[[Page 69162]]

directly or indirectly, in holding and/or managing portfolios or 
baskets of securities, commodity futures contracts, options on 
commodity futures contracts, swaps, forward contracts and/or options on 
physical commodities and/or non-U.S. currency (``Commodity Pool 
Units''), or (iv) represents an interest in a registered investment 
company (``Investment Company'') organized as an open-end management 
investment company or similar entity, that invests in a portfolio of 
securities selected by the Investment Company's investment adviser 
consistent with the Investment Company's investment objectives and 
policies, which is issued in a specified aggregate minimum number in 
return for a deposit of a specified portfolio of securities and/or a 
cash amount with a value equal to the next determined net asset value 
(``NAV''), and when aggregated in the same specified minimum number, 
may be redeemed at a holder's request, which holder will be paid a 
specified portfolio of securities and/or cash with a value equal to the 
next determined NAV (``Managed Fund Share'''').\6\ In addition, 
pursuant to Commentary .10 to Rule 915 the Exchange may also list 
options based on shares of GLD, IAU, and SLV. This proposed rule change 
seeks to expand the current exception set forth in Commentary .10 to 
Rule 915 for Exchange-Traded Fund Shares that may be approved for 
options trading on the Exchange to include SIVR and SGOL.
---------------------------------------------------------------------------

    \6\ See Commentary .06 to Rule 915.
---------------------------------------------------------------------------

    Apart from allowing SIVR and SGOL to be underlyings for options 
traded on the Exchange as described above, the listing standards for 
Exchange-Traded Fund Shares will remain unchanged from those that apply 
under current Exchange rules. Exchange-Traded Fund Shares on which 
options may be listed and traded must still be listed and traded on a 
national securities exchange and must satisfy the other listing 
standards set forth in Commentary .06 to Rule 915. Specifically, in 
addition to satisfying the listing requirements set forth above, 
Exchange-Traded Fund Shares must meet either (1) the criteria and 
guidelines under Commentary .01 to Rule 915; or (2) be available for 
creation or redemption each business day from or through the issuer in 
cash or in kind at a price related to net asset value, and the issuer 
must be obligated to issue Exchange-Traded Fund Shares in a specified 
aggregate number even if some or all of the investment assets required 
to be deposited have not been received by the issuer, subject to the 
condition that the person obligated to deposit the investments has 
undertaken to deliver the investment assets as soon as possible and 
such undertaking is secured by the delivery and maintenance of 
collateral consisting of cash or cash equivalents satisfactory to the 
issuer, as provided in the respective prospectus.
    This proposal is intended to provide appropriate standards for the 
listing and trading of options on SIVR and SGOL. The proposed revision 
to Commentary .11 to Rule 916 specifically provides that shares of SIVR 
and SGOL be deemed ``Exchange-Traded Fund Shares'' for purposes of 
Commentary .07 to Rule 916. Under the applicable continued listing 
criteria in Commentary .07 to Amex Rule 916, the Exchange will consider 
the suspension of opening transactions in SIVR or SGOL in any of the 
following circumstances: (1) Following the initial twelve-month period 
beginning upon the commencement of trading of SIVR or SGOL, there are 
fewer than 50 record and/or beneficial holders of SIVR or SGOL for 30 
or more consecutive trading days; (2) the value of the underlying 
silver or underlying gold is no longer calculated or available; or (3) 
such other event occurs or condition exists that in the opinion of the 
Exchange makes further dealing on the Exchange inadvisable. In 
addition, SIVR shall not be deemed to meet the requirements for 
continued approval, and the Exchange shall not open for trading any 
additional series of option contracts of the class covering SIVR or 
SGOL, respectively, if SIVR or SGOL ceases to be an ``NMS Stock'' as 
provided for in Commentary .07(2) to Rule 916 or SIVR or SGOL is halted 
from trading on the primary listing market, or if SIVR or SGOL is 
delisted.
    The Exchange represents that the listing and trading of SIVR 
options or SGOL options under NYSE Amex rules will not have any effect 
on the rules pertaining to position and exercise limits \7\ or 
margin.\8\
---------------------------------------------------------------------------

    \7\ See NYSE Amex Rules 904 and 905.
    \8\ See NYSE Amex Rule 462.
---------------------------------------------------------------------------

    The Exchange represents that it has an adequate surveillance 
program in place for options on SIVR and SGOL. The Exchange may obtain 
trading information via the Intermarket Surveillance Group (``ISG'') 
from other exchanges who are members or affiliates of the ISG. The 
Exchange may also obtain trading information from various commodity 
futures exchanges worldwide that have entered into comprehensive 
surveillance sharing agreements with the Exchange. In connection with 
SIVR and SGOL, the Exchange represents that it may obtain information 
from the New York Mercantile Exchange, Inc. (``NYMEX''), pursuant to a 
comprehensive surveillance sharing agreement, related to any financial 
instrument that is based, in whole or in part, upon an interest in or 
performance of silver or gold. Prior to listing and trading options on 
SIVR or SGOL, the Exchange represents that it will either have the 
ability to obtain specific trading information via ISG or through a 
comprehensive surveillance sharing agreement with the marketplace or 
marketplaces with last sale reporting that represent(s) the highest 
volume in derivatives (options or futures) on the underlying gold or 
silver.
2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) \9\ of the 
Securities Exchange Act of 1934 (the ``Act'') in general, and furthers 
the objectives of Section 6(b)(5) \10\ in particular in that it is 
designed to prevent fraudulent and manipulative acts and practices, to 
promote just and equitable principles of trade, to foster cooperation 
and coordination with persons engaged in facilitating transactions in 
securities, and to remove impediments to and perfect the mechanisms of 
a free and open market and a national market system.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition 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:

[[Page 69163]]

    (A) by order approve the 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:

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-NYSEAmex-2009-86 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSEAmex-2009-86. 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 the 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-NYSEAmex-2009-86 and should 
be submitted on or before January 20, 2010.

    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,
Deputy Secretary.
[FR Doc. E9-30916 Filed 12-29-09; 8:45 am]
BILLING CODE 8011-01-P