
[Federal Register: March 4, 2010 (Volume 75, Number 42)]
[Notices]               
[Page 9981-9982]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04mr10-119]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61591; File No. SR-OCC-2009-20]

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

February 25, 2010.

I. Introduction

    On December 14, 2009, The Options Clearing Corporation (``OCC'') 
filed with the Securities and Exchange Commission the proposed rule 
change pursuant to Section 19(b)(1) of the Securities Exchange Act of 
1934.\1\ On January 8, 2010, the Commission published notice of the 
proposed rule change in the Federal Register to solicit comments from 
interested persons.\2\ For the reasons discussed below, the Commission 
is approving the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ Securities Exchange Act Release No. 61254 (Dec. 29, 2009), 
75 FR 1093.
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II. Description

    The proposed rule change will amend the interpretation following 
the definition of ``fund share'' in Article I, Section 1, of OCC's By-
Laws. This amendment will enable OCC to (i) clear and treat as 
securities options any option contracts on ETFS Physical Swiss Gold 
Shares or on 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.\3\ In addition, in its capacity as a

[[Page 9982]]

``derivatives clearing organization'' registered with the Commodities 
Futures Trading Commission (``CFTC''), OCC also filed this proposed 
rule change 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 OCC's clearing of such options as securities options or the 
clearing of such futures as security futures constitutes a violation of 
the CEA.
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    \3\ The Commission recently approved rule changes permitting 
NYSE Amex, NYSE Arca, International Securities Exchange, and the 
Chicago Board Options Exchange to each list and trade options based 
on the EFTS Gold Trust and EFTS Silver Trust shares. Securities 
Exchange Act Release No. 61483 (Feb. 3, 2010), 75 FR 6753 (Feb. 10, 
2010).
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    The products that are affected by this approval order 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 rule changes approved by the Commission 
last year.\4\
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    \4\ Securities Exchange Act Release Nos. 57895 (May 30, 2008), 
73 FR 32066 (June 5, 2008) and 59054 (Dec. 4, 2008), 73 FR 75159 
(Dec. 10, 2008).
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III. Discussion

    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 and 
derivative transactions.\5\ By amending its By-Laws to help clarify 
that options and security futures on ETFS Physical Swiss Gold Shares 
and ETFS Physical Silver Shares will be treated and cleared as 
securities options or security futures, OCC's proposed rule change 
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 and of derivative 
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 a CFTC- or Commission-
regulated environment or both in a manner consistent with laws and 
regulations (including the appropriate use of all available exemptive 
and interpretive authority).
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    \5\ 15 U.S.C. 78q-1(b)(3)(F).
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IV. Conclusion

    On the basis of the foregoing, the Commission finds that the 
proposed rule change is consistent with the requirements of the Act and 
in particular Section 17A of the Act \6\ and the rules and regulations 
thereunder.
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    \6\ 15 U.S.C. 78q-1.
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    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\7\ that the proposed rule change (File No. SR-OCC-2009-20) be and 
hereby is approved.\8\
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    \7\ 15 U.S.C. 78s(b)(2).
    \8\ In approving the proposed rule change, the Commission 
considered the proposal's impact on efficiency, competition and 
capital formation. 15 U.S.C. 78c(f).

    For the Commission by the Division of Trading and Markets, 
pursuant to delegated authority.\9\
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    \9\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-4517 Filed 3-3-10; 8:45 am]
BILLING CODE 8011-01-P

