Notice of Filing and Immediate Effectiveness of Proposed Rule Change by the Chicago Board Options Exchanges, Incorporated To Adopt Certain Intermarket Trading System-Related Terms and Conditions Regarding the Temporary Use by the American Stock Exchange LLC of the Facilities of the New York Stock Exchange, Inc.

Notice of Filing and Immediate Effectiveness of Proposed Rule Change Incorporated to Adopt Certain Intermarket Trading System-Related Terms and Conditions Regarding the Temporary Use by Amex of NYSE Facilities

SECURITIES AND EXCHANGE COMMISSION

(Release No. 34-44808; File No. SR-CBOE-2001-50)

September 17, 2001

Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of Proposed Rule Change by the Chicago Board Options Exchange, Incorporated to Adopt Certain Intermarket Trading System-Related Terms and Conditions Regarding the Temporary Use by the American Stock Exchange LLC of the Facilities of the New York Stock Exchange, Inc.

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 September 17, 2001, the Chicago Board Options Exchange, Incorporated ("CBOE" or "Exchange") filed with the Securities and Exchange Commission ("Commission" or "SEC") the proposed rule change as described in Items I, II and III below, which Items have been prepared by the Exchange. The Exchange filed the proposal pursuant to Section 19(b)(3)(A) of the Act,3 and Rule 19b-4(f)(6)4 thereunder, which renders the proposal effective upon filing with the Commission.5 The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons.

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

The CBOE proposes to adopt the terms and conditions related to the Intermarket Trading System ("ITS") that were set forth in an American Stock Exchange ("Amex") proposed rule change (SR-Amex-2001-78), regarding the temporary use by the Amex of the facilities of the New York Stock Exchange, Inc. The text of the proposed rule change is available at the CBOE and at the Commission.

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 CBOE included statements concerning the purpose of and basis for its proposal and discussed any comments it received regarding the proposal. The text of these statements may be examined at the places specified in Item IV below. The CBOE 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

1. Purpose

The CBOE proposes to adopt all of the terms and conditions set forth in Securities Exchange Act Release No. 44803 (September 17, 2001) with respect to the ITS Plan and ITS Participants (as defined in Securities Exchange Act Release No. 44803).

2. Statutory Basis

The CBOE believes the proposed rule change is consistent with the provisions of Section 6(b) of the Act,6 in general, and Section 6(b)(5)7 in particular, in that it is designed to remove impediments to and perfect the mechanism of a free and open market in a manner consistent with the protection of investors and the public interest.

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

The CBOE 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

Because the foregoing proposed rule change does not:

(i)
significantly affect the protection of investors or the public interest; (ii)
impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate,

it has become effective pursuant to Section 19(b)(3)(A) of the Act8 and Rule 19b-4(f)(6) thereunder.9 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.

The Exchange has requested that the Commission waive the five-day pre-filing notice requirement and accelerate the operative date. The Commission finds good cause to designate the proposal to become operative upon filing with the Commission because such designation is consistent with the protection of investors and the public interest. Acceleration of the operative date will allow CBOE to adopt the terms and conditions set forth in Securities Exchange Act Release No. 44803 without unnecessary delay. For these reasons, the Commission finds good cause to waive the pre-filing notice requirement and to designate that the proposal is both effective and operative upon filing with the Commission.10

IV. Solicitation of Comments

Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. 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. Copies of such filing will also be available for inspection and copying at the principal office of CBOE. All submissions should refer

to file number SR-CBOE-2001-50 and should be submitted by [insert date 21 days from the date of publication].

For the Commission, by the Division of Market Regulation, pursuant to delegated authority.11

 
Jonathan G. Katz
 
Secretary

Action as set forth or recommended herein APPROVED pursuant to authority delegated by the Commission under Public Law 87-592.

For the Division of Market Regulation

by:___________________________________________

(DATE)

1
15 U.S.C. 78s(b)(1).2
17 CFR 240.19b-4.3
15 U.S.C. 78s(b)(3)(A).4
17 CFR 240.19b-4(f)(6).5
The Exchange has asked the Commission to waive the five-day pre-filing notice requirement and the 30-day operational delay, pursuant to Rule 19b-4(f)(6). 17 CFR 240.19b-4(f)(6). See September 17, 2001 letter from Angelo Evangelou, Attorney, Legal Division, CBOE to Belinda Blaine, Associate Director, Division of Market Regulation, SEC, and attachments.6
15 U.S.C. 78f(b).7
15 U.S.C. 78f(b)(5).8
15 U.S.C. 78s(b)(3)(A).9
17 CFR 240.19b-4(f)(6).10
For purposes only of accelerating the operative date of this proposal, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f).11
17 CFR 200.30-3(a)(12).