[Federal Register Volume 75, Number 5 (Friday, January 8, 2010)]
[Notices]
[Pages 1093-1094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-69]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61254; File No. SR-OCC-2009-20]


 Self-Regulatory Organizations; The Options Clearing Corporation; 
Notice of Filing of Proposed Rule Change Relating to ETFS Physical 
Swiss Gold Shares and ETFS Physical Silver Shares

December 29, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 
1934,\1\ notice is hereby given that on December 14, 2009, The Options 
Clearing Corporation (``OCC'') filed with the Securities and Exchange 
Commission the proposed rule change as described in Items I, II, and 
III below, which Items have been prepared primarily by OCC. The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    The proposed rule change would clarify that the term ``fund share'' 
includes any option or any futures contracts on ETFS Physical Swiss 
Gold Shares and ETFS Physical Silver Shares.

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

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

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

    The purpose of the proposed rule change is to clarify the 
jurisdictional status of options or security futures on ETFS Physical 
Swiss Gold Shares or ETFS Physical Silver Shares. OCC proposes to amend 
the interpretation following the definition of ``fund share'' in 
Article I, Section 1, of OCC's By-Laws.\2\ Under this proposed rule 
change, OCC would (i) clear and treat as securities options any option 
contracts on ETFS Physical Swiss Gold Shares and ETFS Physical Silver 
Shares that are traded on securities exchanges and (ii) clear and treat 
as security futures any futures contracts on ETFS Physical Swiss Gold 
Shares and ETFS Physical Silver Shares.
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    \2\ Securities Exchange Act Release No. 57895 (May 30, 2008), 73 
FR 32066 (June 5, 2008), and CFTC Order Exempting the Trading and 
Clearing of Certain Products Related to SPDR Gold Trust Shares, 73 
FR 31981 (June 5, 2008) (orders approving a proposed rule change 
clarifying that options and securities futures on SPDR Gold Shares 
are included in the definition of ``fund share'' in OCC's rules); 
Securities Exchange Act Release No. 59054 (Dec. 4, 2008), 73 FR 
75159 (Dec. 10, 2008) and CFTC Order Exempting the Trading and 
Clearing of Certain Products Related to iShares COMEX Gold Trust 
Shares and iShares Silver Trust Shares, 73 FR 79830 (Dec. 3, 2008) 
(orders approving proposed rule change adding options and security 
futures on iShares COMEX Gold Shares and iShares Silver Shares to 
OCC's interpretation of ``fund share'').
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    In its capacity as a ``derivatives clearing organization'' 
registered as such with the Commodities Futures Trading Commission 
(``CFTC''), OCC is filing this proposed rule change 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 OCC's clearing of such options as securities 
options or the clearing 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, iShares COMEX Gold Shares, and iShares Silver Shares that 
OCC currently clears pursuant to the rule changes referred to above and 
exemptions issued by the CFTC. \3\ OCC believes that this filing raises 
no new regulatory or policy issues.
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    \3\ Supra note 2.
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    OCC believes that the proposed interpretation of OCC's By-Laws is 
consistent with the purposes and requirements of Section 17A of the Act 
\4\ 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 these purposes 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 ETFS Physical Swiss Gold 
Shares or ETFS Physical Silver Shares. OCC also states that the 
proposed rule change is not inconsistent with OCC's By-Laws and Rules.
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    \4\ 15 U.S.C. 78q-1.
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B. Self-Regulatory Organization's Statement on Burden on Competition

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

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

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

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within thirty-five 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 ninety 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

[[Page 1094]]

organization consents, the Commission will:
    (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 No. SR-OCC-2009-20 on the subject line.

Paper Comments

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

All submissions should refer to File No. SR-OCC-2009-20. 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 OCC's principal office and on OCC's Web site 
at http://www.theocc.com/publications/rules/proposed_changes/proposed_changes.jspU. 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 submission should refer to File No. SR-
OCC-2009-20 and should be submitted on or before January 29, 2010.

    For the Commission by the Division of Trading and Markets, 
pursuant to delegated authority.\5\
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    \5\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-69 Filed 1-7-10; 8:45 am]
BILLING CODE 8011-01-P