[Federal Register Volume 75, Number 9 (Thursday, January 14, 2010)]
[Notices]
[Pages 2166-2170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-537]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61295; File No. SR-CBOE-2009-098]


Self-Regulatory Organizations; Chicago Board Options Exchange, 
Incorporated; Notice of Filing and Immediate Effectiveness of Proposed 
Rule Change Relating to Exchange Fees for Fiscal Year 2010

January 6, 2010.

    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on December 30, 2009, 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 prepared by CBOE. The 
Exchange has designated this proposal as one establishing or changing a 
due, fee, or other charge imposed by the Exchange under Section 
19(b)(3)(A)(ii) of the Act \3\ and Rule 19b-4(f)(2)

[[Page 2167]]

thereunder,\4\ which renders the proposal effective upon filing with 
the Commission. 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).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \4\ 17 CFR 240.19b-4(f)(2).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    CBOE proposes to amend its Fees Schedule to make various changes 
for Fiscal Year 2010. The text of the proposed rule change is available 
on the Exchange's Web site (http://www.cboe.org/legal), on the 
Commission's Web site (http://www.sec.gov), 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, 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. CBOE 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
    The purpose of this proposed rule change is to amend the CBOE Fees 
Schedule to make various fee changes. The proposed changes are the 
product of the Exchange's annual budget review. The fee changes were 
approved by the Exchange's Board of Directors pursuant to CBOE Rule 
2.22 and will take effect on January 4, 2010. The Exchange proposes to 
amend certain fees, eliminate several fees to simplify the Fees 
Schedule, and clarify the Fees Schedule in several respects. The 
Exchange also seeks to establish fees for transactions in S&P 500 
Dividend Index (DVS) options.
    A. The Exchange proposes to amend the following fees:
    Index Options Transaction Fees: The Exchange proposes to amend 
customer, voluntary professional and broker-dealer transaction fees for 
certain index options to create consistent fees for similar products 
and to simplify the fee structure for index options. The Exchange 
proposes to increase the customer (``C'' origin code) transaction fee 
in S&P 100 options (OEX and XEO) from $.30 per contract to $.40 per 
contract, which is the same rate charged to customers for certain other 
CBOE proprietary index options (Dow Jones Industrial Average (DXL) and 
volatility index options). The Exchange proposes to reduce the customer 
transaction fee for Morgan Stanley Retail Index (MVR) options from $.40 
per contract to $.18 per contract.
    The Exchange proposes to increase the voluntary professional (``W'' 
origin code) transaction fee in OEX options from $.20 per contract to 
$.40 per contract and in XEO options from $.30 per contract to $.40 per 
contract.\5\ The Exchange proposes to increase the broker-dealer \6\ 
transaction fee in OEX and XEO options from $.30 per contract to $.40 
per contract. Currently, broker-dealer transaction fees for volatility 
index options are $.25 per contract for manual executions and $.45 per 
contract for electronic executions. The Exchange proposes to charge 
$.40 per contract for manual and electronic broker-dealer executions in 
volatility index options. Broker-dealer transaction fees are currently 
$.25 per contract for MVR options. The Exchange proposes to increase 
the broker-dealer transaction fee for electronic executions in MVR 
options to $.45 per contract.
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    \5\ The Commission notes that on December 24, 2009, CBOE filed a 
proposed rule change relating to fees for professional orders that 
also would become operative on January 4, 2010. See SR-CBOE-2009-
101.
    \6\ Broker-Dealer transaction fees apply to broker-dealer orders 
(orders with ``B'' origin code), non-member market-maker orders 
(orders with ``N'' origin code) and orders from specialists in the 
underlying security (orders with ``Y'' origin code). See CBOE Fees 
Schedule, Footnote 16. Broker-dealer transaction fees also apply to 
certain orders with ``F'' origin code, specifically, orders from OCC 
members that are not CBOE members. The Exchange proposes to clarify 
Footnote 16 in this regard.
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    ETF Options Transaction Fees: The Exchange proposes to amend 
broker-dealer transaction fees for certain ETF options to create 
consistent fees for similar products and to simplify the fee structure 
for ETF options. Currently, the broker-dealer transaction fee in QQQQ 
(PowerShares QQQ Trust) options and IWM (iShares Russell 2000 Index 
Fund) options is $.25 per contract. The Exchange proposes to increase 
the broker-dealer transaction fee for electronic executions in QQQQ and 
IWM options to $.45 per contract.
    Surcharge Fees: The Exchange currently charges a $.06 per contract 
surcharge fee on all non-public customer \7\ transactions in OEX, XEO, 
SPX and volatility index options. The Exchange proposes to increase the 
surcharge fee for OEX, XEO and SPX options to $.10 per contract and for 
volatility index options to $.08 per contract. The surcharge fee is 
assessed to help the Exchange recoup license fees the Exchange pays to 
index licensors for the right to list these products for trading and is 
similar to surcharge fees charged by other exchanges.
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    \7\ The Surcharge Fee applies to all non-public customer 
transactions (i.e. CBOE and non-member market-maker, member firm and 
broker-dealer), including voluntary professionals and linkage orders 
except for satisfaction orders. See CBOE Fees Schedule, Section 1 
(Index Options) and Footnote 14. The Commission notes that on 
December 24, 2009, CBOE filed a proposed rule change relating to 
fees for professional orders that also would become operative on 
January 4, 2010. See SR-CBOE-2009-101.
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    Floor Brokerage Fees: The Exchange currently charges floor brokers 
executing orders in OEX, SPX and DXL options $.04 per contract and $.02 
per contract for crossed orders. The Exchange proposes to charge floor 
brokers executing orders in volatility index options $.02 per contract 
and $.01 per contract for crossed orders.
    Cabinet Trade Transaction Fees: The Exchange has traditionally not 
assessed transaction fees for accommodation liquidations (``cabinet 
trades'').\8\ Cabinet trades refer to trades in listed options that are 
worthless or not actively traded. Due to the expansion of option 
classes participating in the Penny Pilot Program, the Exchange has 
found it increasingly difficult to distinguish cabinet trades from 
trades in Penny Pilot options classes for purposes of this fee waiver 
program. Therefore, the Exchange proposes to eliminate the fee waiver 
and begin assessing transaction fees for cabinet trades effective 
January 4, 2010.
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    \8\ See CBOE Fees Schedule, Footnote 7.
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    Strategy Fee Cap: The Exchange currently caps market-maker, firm, 
and broker-dealer transaction fees associated with dividend, merger and 
short stock interest strategies, as described in Footnote 13 of the 
CBOE Fees Schedule.\9\ Transaction fees are capped at $1,000 for all 
such strategies executed on the same trading day in the same options 
class, and are further capped at $50,000 per month per initiating 
member or firm. The Exchange proposes to reduce the per month per 
initiating member or firm cap from $50,000 to $25,000. The proposed fee 
cap reduction would enable the Exchange to remain competitive for these 
types of

[[Page 2168]]

strategies and is similar to strategy fee caps at other options 
exchanges.
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    \9\ The Strategy Fee Cap is in effect as a pilot program that is 
due to expire on March 1, 2010.
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    Customer Large Trade Discount Program: Customer (``C'' origin code) 
transaction fees are capped for large trades in index, ETF and HOLDRs 
options.\10\ Currently, the Exchange charges only the first 7,500 
contracts of a customer order in volatility index options. The Exchange 
proposes to charge only the first 5,000 contracts of a customer order 
in volatility index options in order to attract additional order flow 
to the Exchange.
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    \10\ See CBOE Fees Schedule, Section 18.
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    Membership Application Fees: Membership application fees are set 
forth in Section 11 of the CBOE Fees Schedule as well as in a 
regulatory circular (``Membership Fees Circular''). The Exchange 
proposes to amend certain membership application fees as reflected in 
the Fees Schedule and Membership Fees Circular included as part of 
Exhibit 5. Specifically, the Exchange proposes to increase the Non-
Member Customer Business Fee from $1,000 to $2,500, the Lessor Firm Fee 
from $1,000 to $2,000, and the Renewal/Change of Status Fee from $250 
to $500. The proposed changes would help the Exchange recover its costs 
in processing these applications.
    B. The Exchange proposes to eliminate the following fees (with one 
exception as noted below):
    Customer Complex Order Fee: The Exchange proposes to eliminate the 
transaction fee of $.18 per contract for customer complex orders in 
equity and QQQQ options that ``take liquidity'' from the Exchange's 
complex order book.\11\
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    \11\ See CBOE Fees Schedule, Section 1 and Footnote 12.
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    Member Firm Proprietary Sliding Scale--License Fee Add-On: The 
Exchange's Member Firm Proprietary Sliding Scale program reduces a 
member firm's standard $.20 per contract transaction fee if the member 
firm reaches the volume thresholds set forth in the sliding scale in a 
month.\12\ Due to the Exchange's obligation to pay license fees on 
certain products, the Exchange currently assesses a $.10 per contract 
license fee (a total of 10 cents per contract less any surcharge fees 
already assessed) on all licensed products except Nasdaq-100 (MNX, NDX) 
and Russell 2000 (RUT) options when a firm reaches the fifth tier of 
the sliding scale. The Exchange proposes to eliminate this license fee 
add-on to simplify the Fees Schedule. The Exchange will continue to 
charge the surcharge fees set forth in Section 1 (Index Options) of the 
Fees Schedule on trades in licensed products when a firm reaches the 
fifth tier of the sliding scale.
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    \12\ See CBOE Fees Schedule, Section 1 and Footnote 11.
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    Miscellaneous Fees: The following fees are proposed to be 
eliminated as they are outdated and/or the Exchange has determined no 
longer to charge them: Installation, Relocation and Removal fees for 
single line phones under Section 8(F)(2) of the Fees Schedule; 
Installation, Relocation and Removal fees for Thomson\13\ market data 
trading floor terminals, fees for Thomson's NYSE OpenBook data, and the 
Installation fee of $500 for satellite TV under Section 8(F)(10) of the 
Fees Schedule; Trade Processing Services fees (Electronic Output/Input 
Services and Market-Maker Paper Ticket Fees) under Section 9 of the 
Fees Schedule, except for the $.0025 per contract side fee for matched 
and unmatched data; Fees for electronic and paper filing of FOCUS 
reports under Section 12 of the Fees Schedule; Fee for a service 
provided to member firms by the Exchange to facilitate member firm 
payments to floor brokers for except for the [sic]\14\ floor brokerage 
services (Floor Broker Payment Program) under Section 13 of the Fees 
Schedule; Pass-through of periodic license or royalty fees, the fee for 
a hard copy subscription to the Exchange Bulletin, and the CFLEX Log-in 
fee under Section 15 (Miscellaneous) of the Fees Schedule; and Circuit 
Charges under Section 16 of the Fees Schedule.\15\
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    \13\ The Exchange also proposes to replace the reference to 
``ILX'' in Section 8 of the Fees Schedule with ``Thomson'' to 
reflect the replacement of the ILX service with Thomson's service. 
ILX is a division of Thomson Financial.
    \14\ The Exchange inadvertently included the phrase ``except for 
the'' in its filing with the Commission and intended the text of 
this portion of the ``Miscellaneous Fees'' section to read: ``[f]ee 
for a service provided to member firms by the Exchange to facilitate 
member firm payments to floor brokers for floor brokerage services 
(Floor Broker Payment Program) under Section 13 of the Fees Schedule 
* * *.'' Telephone call between Geoffrey Pemble, Special Counsel, 
Commission, and Jaime Galvan, Senior Attorney, CBOE, January 5, 
2010.
    \15\ The Exchange also proposes the following clean-up changes 
to the Fees Schedule. The Exchange proposes to delete references to 
the CBOE S&P 500 BuyWrite Index (1/10th value) (``BXO'') and CBOE 
S&P 500 Three-Month Realized Volatility (``RUH'') from Section 1 
(Index Options) to the Fees Schedule since the Exchange no longer 
trades these two classes. See also SR-CBOE-2009-054 (deleting RUH 
and BXO references from Footnote 6 to Fees Schedule). The Exchange 
also proposes to delete the ``CBOEdirect Connectivity Fees'' line 
item from Section 17 because those fees are now located in Section 
16 of the Fees Schedule.
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    C. The Exchange proposes the following Fees Schedule 
clarifications:
    Floor Brokerage Fees: The Exchange proposes to clarify Footnote 5 
of the Fees Schedule relating to floor brokerage fees in three 
respects. First, the Exchange proposes to delete the sentence regarding 
assessment of the fee to Designated Primary Market-Makers (``DPMs'') 
because DPMs no longer have an agency function. Second, the Exchange 
proposes to clarify that if a market-maker executes an order for an 
account in which the market-maker is not a registered participant as 
reflected in the Exchange's Membership Department records, the market-
maker will be assessed a floor brokerage fee. Third, the Exchange 
proposes to clarify that order ID data is not required to be the same 
on both the buy and sell side of an order in order to be eligible for 
the discounted ``crossed'' rate.
    Disputed Charges: The Exchange proposes to add to the Fees Schedule 
as Footnote 7 a statement that after three months, all fees as assessed 
by the Exchange are considered final by the Exchange. The purpose of 
this change is to encourage members to promptly review their Exchange 
invoices so that any disputed charges can be addressed in a timely 
manner.
    Member Firm Proprietary Sliding Scale: The Exchange proposes to 
clarify Footnote 11 of the Fees Schedule relating to the Member Firm 
Proprietary Sliding Scale in three respects. First, the Exchange 
proposes to amend Footnote 11 to clarify that each member firm is 
responsible for notifying the Exchange's Membership Department of all 
of its affiliations with other members so that contracts of the firm 
and its affiliates may be aggregated for purposes of the sliding scale. 
Second, the Exchange proposes to clarify that it will aggregate the 
activity of separate member firms for purposes of the sliding scale if 
there is at least 75% common ownership between the firms as reflected 
on each firm's Form BD, Schedule A, which is the same way Exchange 
aggregates trading activity for the Liquidity Provider Sliding 
Scale.\16\ Third, the Exchange proposes to clarify that a member firm's 
contracts executed pursuant to an OCC Clearing Member Trade Assignment 
(CMTA) agreement (i.e., executed by another clearing firm and then 
transferred to the member firm's account at the OCC) are aggregated 
with the member firm's non-CMTA contracts for purposes of the sliding 
scale.
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    \16\ See CBOE Fees Schedule, Footnote 10.
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    Position Transfer Fee: The Exchange charges a fee of $.02 per 
contract side for options positions transferred pursuant to Rule 
6.49A.\17\ The fee helps

[[Page 2169]]

offset costs the Exchange incurs in providing services to accommodate 
both on-floor and off-floor transfers of positions.\18\ The fee is 
capped at $25,000 per transfer. The Exchange proposes to clarify the 
application of the $25,000 fee cap. Specifically, the Exchange proposes 
to clarify that for all on-floor transfers, both the position 
transferor (seller) and the transferee (buyer) are assessed a fee of 
$.02 per contract with a cap of $12,500 for each. If there are multiple 
transferees (buyers), each transferee is assessed a fee of $.02 per 
contract up to the $12,500 cap for the transferee side of the transfer 
package. For any off-floor transfer where regulatory review of a 
proposed transfer is solicited to determine whether the proposed 
transfer meets the off-floor transfer provisions of Rule 6.49A, the 
initiator of the review is assessed a fee of $.02 per contract with a 
cap of $25,000. If it is determined the position transfer must be 
affected on-floor, only the on-floor fee will be assessed.
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    \17\ CBOE Rule 6.49A provides for a special procedure to permit 
option positions to be offered on the floor of the Exchange in the 
event that the positions are being transferred as part of a sale or 
disposition of all or substantially all of the assets or options 
positions of the transferring party where the transferring party 
would not continue to be involved in managing or owning the 
transferred positions. The rule also provides for off-floor 
transfers of positions based on certain specified exemptions, as 
well as with the approval of the Exchange's President under 
extraordinary circumstances.
    \18\ See Securities Exchange Act Release No. 59193 (January 2, 
2009), 74 FR 972 (January 9, 2009).
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    Customer Large Trade Discount Program: The Exchange proposes to 
amend Section 18 of the Fees Schedule to clarify the calculation of the 
fee cap. The Exchange proposes to clarify that it will look at the 
trade date and order ID on each trade record to determine the 
qualification of an order for the fee cap. The order ID on each trade 
record must be the same in order for the Exchange to tie the trade 
records to the same order and accumulate the total contracts. The 
Exchange also proposes to clarify that for complex orders, the total 
contracts of an order (all legs) are counted for purposes of 
calculating the fee cap.
    D. The Exchange proposes to establish fees for DVS options.
    The Exchange recently received approval to list and trade options 
on the S&P 500 Dividend Index, which represents the accumulated ex-
dividend amounts of all S&P 500 Index component securities over a 
specified accrual period (e.g., quarterly, semi-annually, 
annually).\19\
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    \19\ See Securities Exchange Act Release No. 61136 (December 10, 
2009) (approving SR-CBOE-2009-022).
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    Consistent with the changes being proposed in this filing, the 
amount of the transactions fees for DVS options shall be as follows:
     $0.20 per contract for Market-Maker and Designated Primary 
Market-Maker transactions; \20\
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    \20\ This is the standard rate that is subject to the Liquidity 
Provider Sliding Scale as set forth in Footnote 10 to the Fees 
Schedule.
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     $0.20 per contract for member firm proprietary 
transactions;
     $0.40 per contract for manually executed broker-dealer 
transactions;
     $0.40 per contract for electronically executed broker-
dealer transactions;
     $0.40 per contract for voluntary professional 
transactions;\21\
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    \21\ The Commission notes that on December 24, 2009, CBOE filed 
a proposed rule change relating to fees for professional orders that 
also would become operative on January 4, 2010. See SR-CBOE-2009-
101.
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     $0.40 per contract for customer transactions; and
     $0.10 per contract CFLEX surcharge fee.
    The Exchange also proposes to adopt a $.10 per contract surcharge 
fee on all non-public customer transactions in DVS options to help the 
Exchange recoup license fees the Exchange pays to the reporting 
authority. The proposed surcharge fee is identical to the surcharge fee 
proposed to be increased from $0.06 per contract to $0.10 for non-
public customer transactions in OEX, XEO and SPX options.
    The Exchange's Liquidity Provider Sliding Scale shall apply to 
transaction fees in DVS options, but the Exchange's marketing fee\22\ 
shall not apply. The Exchange believes the rule change will further the 
Exchange's goal of introducing new products to the marketplace that are 
competitively priced.\23\
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    \22\ See Footnote 6 of the Fees Schedule.
    \23\ Linkage order fees are inapplicable for options on CBOE's 
proprietary products.
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2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with 
Section 6(b) of the Securities Exchange Act of 1934 (``Act''),\24\ in 
general, and furthers the objectives of Section 6(b)(4)\25\ of the Act 
in particular, in that it is designed to provide for the equitable 
allocation of reasonable dues, fees, and other charges among its 
members and other persons using its facilities. The Exchange believes 
the proposed index and ETF options transaction fee changes and floor 
brokerage fee change would create consistent fees for similar products 
and help to simplify the fee structure for these options. The proposed 
changes to the Strategy Fee Cap and Customer Large Trade Discount 
Program would result in reduced fees for market participants. The 
proposed changes to surcharge fees and membership application fees 
would help the Exchange recover costs. The Exchange believes the 
proposed fee eliminations and Fees Schedule clarifications would update 
and simplify the Fees Schedule. With respect to establishing fees for 
DVS options, the Exchange believes the new fees proposed by this filing 
are equitable and reasonable in that they will further the Exchange's 
goal of introducing new products to the marketplace that are 
competitively priced and will help the Exchange recoup license fees 
that the Exchange pays to the reporting authority.
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    \24\ 15 U.S.C. 78f(b).
    \25\ 15 U.S.C. 78f(b)(4).
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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 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

    Because the foregoing rule change establishes or changes a due, 
fee, or other charge imposed by the Exchange, it has become effective 
pursuant to Section 19(b)(3)(A) of the Act \26\ and subparagraph (f)(2) 
of Rule 19b-4 thereunder.\27\ At any time within 60 days of the filing 
of the proposed rule change, the Commission may summarily abrogate such 
rule change if it appears to the Commission that such action is 
necessary or appropriate in the public interest, for the protection of 
investors, or otherwise in furtherance of the purposes of the Act.
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    \26\ 15 U.S.C. 78s(b)(3)(A).
    \27\ 17 CFR 240.19b-4(f)(2).
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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

[[Page 2170]]

Number SR-CBOE-2009-098 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-CBOE-2009-098. 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 No. SR-CBOE-2009-098 and should be 
submitted on or before February 4, 2010.

For the Commission, by the Division of Trading and Markets, pursuant 
to delegated authority.\28\
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    \28\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-537 Filed 1-13-10; 8:45 am]
BILLING CODE 8011-01-P