[Federal Register Volume 84, Number 196 (Wednesday, October 9, 2019)]
[Notices]
[Pages 54210-54213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22012]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-87211; File No. SR-Phlx-2019-38]


Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend Phlx's 
Second Amended Limited Liability Company Agreement and By-Laws

October 3, 2019.
    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 20, 2019, Nasdaq PHLX LLC (``Phlx'' or ``Exchange'') filed 
with the Securities and Exchange Commission (``SEC'' or ``Commission'') 
the proposed rule change as described in Items I and II below, which 
Items have been prepared by the Exchange. 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.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend its Second Amended Limited Liability 
Company Agreement (``LLC Agreement'') and By-Laws (``By-Laws''), as 
further discussed below
    The text of the proposed rule change is available on the Exchange's 
website at http://nasdaqphlx.cchwallstreet.com/, at the principal 
office of the Exchange, 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 Exchange 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 Exchange 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 Exchange proposes to amend its LLC Agreement and By-Laws to (i) 
harmonize certain provisions related to the regulatory independence of 
the Exchange with those of the Exchange's affiliates, Nasdaq ISE, LLC 
(``ISE''), Nasdaq GEMX, LLC (``GEMX''), and Nasdaq MRX, LLC (``MRX''), 
(ii) modify Director categorizations, (iii) update compositional 
requirements of the Regulatory Oversight Committee (``ROC''), and (iv) 
make additional, non-substantive edits. Each change is discussed below.
LLC Agreement
    The Exchange proposes to modify a number of provisions in its LLC 
Agreement related to the regulatory independence of the Exchange. As 
discussed below, the Exchange believes that the proposed changes will 
make these provisions more robust and will serve to align the 
Exchange's LLC Agreement with the LLC Agreements of its affiliates, 
ISE, GEMX, and MRX.
     Distributions: The Exchange currently has distribution 
provisions in Section 14 of the LLC Agreement that prohibits the 
Exchange from making distributions to its stockholder (i.e., Nasdaq, 
Inc.), using Regulatory Funds.\3\ The Exchange now proposes to amend 
this provision to substantively conform to Section 15 in the ISE, GEMX, 
and MRX LLC Agreements by specifying that Regulatory Funds shall not be 
used for non-regulatory purposes, but rather shall be used to fund the 
legal, regulatory and surveillance operations of the Exchange. The 
Exchange believes these are minor changes that make the distribution 
provisions more robust by specifying how Regulatory Funds may be used. 
Lastly, the Exchange proposes to add that it would not be required to 
make a distribution to the stockholder if such distribution would 
otherwise be required to fulfill the regulatory functions or 
responsibilities of the Exchange.
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    \3\ ``Regulatory Funds'' means fees, fines, or penalties derived 
from the regulatory operations of the Exchange. ``Regulatory Funds'' 
shall not be construed to include revenues derived from listing 
fees, market data revenues, transaction revenues, or any other 
aspect of the commercial operations of the Exchange, even if a 
portion of such revenues are used to pay costs associated with the 
regulatory operations of the Exchange. See By-Law Article I, Section 
(ii). The definition of Regulatory Funds is not changing under this 
proposal.
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     Books and Records: Section 15 of the LLC Agreement 
presently sets forth certain information relating to general 
administrative matters with respect to the books and records of the 
Exchange, including requirements as to where the Exchange's books and 
records are kept, the maintenance of such books and records, and 
inspection rights, among other provisions. The Exchange proposes to 
amend Section 15 to add substantively conforming language as set forth 
in Section 16 of the LLC Agreements of ISE, GEMX, and MRX by providing 
that all confidential information relating to the self-regulatory 
function of the Exchange (including but not limited to disciplinary 
matters, trading data, trading practices and audit information) 
contained in the books and records of the Exchange shall: (i) Not be 
made available to any persons other than to those officers, directors, 
employees and agents of the Exchange that have a reasonable need to 
know the contents thereof, (ii) be retained in confidence by the 
Exchange and the officers, directors, employees and agents of the 
Exchange, and (iii) must not be used for any non-regulatory purpose. 
Furthermore, the Exchange proposes to add, similar to the ISE, GEMX, 
and MRX LLC Agreements, that nothing in the LLC Agreement shall be 
interpreted as to limit or impede the rights of the Commission to 
access and examine such confidential information pursuant to federal 
securities laws and the rules and regulations thereunder, or to limit 
or impede the ability of any officers, directors, employees or agents 
of the Exchange to disclose such confidential information to the 
Commission. The Exchange believes that the proposed changes will add 
more specificity as to who may access the Exchange's books and records, 
especially relating to confidential information on the self-regulatory 
function of the Exchange, and the use of such information.
     Assignments: Section 20 of the LLC Agreement currently 
prohibits the Exchange's stockholder from transferring or assigning in 
whole or in part its limited liability company interest in the 
Exchange, except to an affiliate of the stockholder. The Exchange now 
proposes to provide in Section 20 that any transfer or assignment by 
the stockholder of its equity ownership interest in the Exchange is 
prohibited unless it is filed and approved by the Commission pursuant 
to a rule filing, and to delete the stockholder affiliate exception to 
the general prohibition on transfers and

[[Page 54211]]

assignments. This will align Section 20 of the Exchange's LLC Agreement 
with Section 20 in the LLC Agreements of ISE, GEMX, and MRX.
By-Law Article I
    Currently, the definition of ``Non-Industry Director'' in the 
Exchange By-Laws refers to, among other individuals, an officer, 
director or employee of an issuer of securities listed on the national 
securities exchange operated by the Exchange.\4\ Because only its 
affiliate, The Nasdaq Stock Market LLC (``Nasdaq''), currently operates 
an equities listing market, the Exchange seeks to amend the definition 
of Non-Industry Director to refer to an officer, director or employee 
of an issuer of securities listed on a national securities exchange 
operated by the Exchange or one of its affiliates. The Exchange 
believes that the proposed changes will bring greater clarity to the 
Exchange's rules by aligning the By-Law provision to how the Exchange 
currently operates. The Exchange notes that the qualifications for a 
Non-Industry Director are not expanding under this proposal and as a 
practical matter, no changes to the current composition of Non-Industry 
Directors on the Exchange's Board are contemplated by this rule change. 
Today, a Non-Industry Director who is not designated by the Exchange as 
a Public Director \5\ under (i) of the definition of Non-Industry 
Director, and that does not explicitly fall under (ii) (i.e., ``an 
officer, director or employee of an issuer of securities listed on the 
national securities exchange operated by the Exchange'') would still 
fall under (iii) an individual who would not be an Industry 
Director.\6\ With the proposed changes, these Non-Industry Directors 
could fall under both (ii) and (iii) because they would be 
representative of issuers listed on the Exchange's affiliate, Nasdaq, 
and at the same time, not be considered Industry Directors. The 
Exchange also proposes to make conforming changes to the definition of 
a ``Non-Industry member'' of a committee.\7\ The Exchange further 
proposes a non-substantive change to delete the reference to 
``director'' contained in (ii) of the definition of Non-Industry member 
in order to align with its affiliated exchanges.\8\
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    \4\ In addition, the term ``Non-Industry Director'' encompasses 
a Director (excluding Staff Directors) who is a Public Director or 
any other individual who would not be an Industry Director. See By-
Law Article I, Section (bb).
    \5\ The term ``Public Director'' shall mean a Director who has 
no material business relationship with a broker or dealer, the 
Exchange or its affiliates, or FINRA. See By-Law Article I, Section 
(gg).
    \6\ The term ``Industry Director'' means a Director (excluding 
any two officers of the Exchange, selected at the sole discretion of 
the Board, amongst those officers who may be serving as Directors 
(the ``Staff Directors'')), who (i) is or has served in the prior 
three years as an officer, director, or employee of a broker or 
dealer, excluding an outside director or a director not engaged in 
the day-to-day management of a broker or dealer; (ii) is an officer, 
director (excluding an outside director), or employee of an entity 
that owns more than ten percent of the equity of a broker or dealer, 
and the broker or dealer accounts for more than five percent of the 
gross revenues received by the consolidated entity; (iii) owns more 
than five percent of the equity securities of any broker or dealer, 
whose investments in brokers or dealers exceed ten percent of his or 
her net worth, or whose ownership interest otherwise permits him or 
her to be engaged in the day-to-day management of a broker or 
dealer; (iv) provides professional services to brokers or dealers, 
and such services constitute 20 percent or more of the professional 
revenues received by the Director or 20 percent or more of the gross 
revenues received by the Director's firm or partnership; (v) 
provides professional services to a director, officer, or employee 
of a broker, dealer, or corporation that owns 50 percent or more of 
the voting stock of a broker or dealer, and such services relate to 
the director's, officer's, or employee's professional capacity and 
constitute 20 percent or more of the professional revenues received 
by the Director or member or 20 percent or more of the gross 
revenues received by the Director's or member's firm or partnership; 
or (vi) has a consulting or employment relationship with or provides 
professional services to the Exchange or any affiliate thereof or to 
FINRA (or any predecessor) or has had any such relationship or 
provided any such services at any time within the prior three years. 
See By-Law Article I, Section (p).
    \7\ See By-Law Article I, Section (cc).
    \8\ In particular, the definitions of Non-Industry member on 
Nasdaq BX, Inc. (``BX''), Nasdaq, ISE, GEMX, and MRX all refer to, 
among other individuals, ``. . . an officer or employee of an issuer 
of securities . . .'' See BX By-Law Article I, Section (cc); Nasdaq 
By-Law Article I, Section (w); ISE By-Law Article I, Section (x); 
GEMX By-Law Article I, Section (x); and MRX By-Law Article I, 
Section (x).
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    Currently, the Exchange's Board compositional requirements require 
at least one Public Director and at least one Director representative 
of issuers and investors.\9\ As set forth in Article I, Section (gg), a 
``Public Director'' is defined as a Director who has no material 
business relationship with a broker or dealer, the Exchange or its 
affiliates, or FINRA. ``Director representative of issuers and 
investors'' is not defined specifically in the Exchange's By-Laws, but 
is implicitly defined in the term Non-Industry Director as ``an 
officer, director, or employee of an issuer of securities listed on the 
national securities exchange operated by the Exchange.'' \10\ The 
Exchange now proposes to clarify in the definition of Public Director 
that, for the avoidance of doubt, a director of an issuer of securities 
listed on a national securities exchange operated by the Exchange or 
one of its affiliates shall not be precluded from being considered a 
Public Director solely on the basis of such directorship. The Exchange 
believes that a director of a listed company can adequately represent 
the interests of listed companies on the Board and therefore be 
considered an issuer representative. At the same time, the Exchange 
does not believe that such a directorship always constitutes a material 
business relationship with a broker or dealer, the Exchange or its 
affiliates, or FINRA, which would prohibit the individual from being 
considered a Public Director.\11\ Of course, such issuer representative 
must still meet the requirements of a Public Director and not have such 
material business relationships by definition. Thus in limited 
circumstances, the Exchange believes that it is possible for directors 
of listed companies to be considered both Public Directors and issuer 
representatives.
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    \9\ See By-Law Article III, Section 3-2(a).
    \10\ See By-Law Article I, Section (bb). As discussed above, the 
Exchange will amend this provision to refer to ``an officer, 
director, or employee of an issuer of securities listed on a 
national securities exchange operated by the Exchange or one of its 
affiliates.''
    \11\ This is consistent with the longstanding best practice of 
the Exchange's parent, Nasdaq, Inc., having the Chairman of the 
Audit Committee of the board of directors of Nasdaq, Inc. serve as 
the Chairman of the Exchange Board's Regulatory Oversight Committee, 
which is required to be comprised of Public Directors who are also 
considered ``independent directors'' as defined in Nasdaq Rule 5605. 
See By-Law Article V, Section 5-2(c). Because Nasdaq, Inc. is a 
listed company, this Exchange Director could be considered both an 
issuer representative and a Public Director.
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    The Exchange does not seek to amend the Board's qualification 
requirements in the By-Laws other than the proposed changes to the 
definitions of Non-Industry Director and Public Director. With the 
proposed changes, the composition of the Board would still be required 
to reflect a balance among Non-Industry Directors (including Public 
Directors and Directors representative of issuers and investors), 
Industry Directors, and Member Representative Directors.\12\ 
Accordingly, current Board qualification requirements such as the 
number of Non-Industry Directors, including at least one Public 
Director and at least one Director representative of issuers and 
investors, equaling or exceeding the sum of the number of Industry 
Directors and Member

[[Page 54212]]

Representative Directors would continue to apply.\13\
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    \12\ The term ``Member Representative Director'' shall mean a 
Director who has been elected or appointed after having been 
nominated by the Member Nominating Committee or by a Member pursuant 
to the Exchange's By-Laws. A Member Representative Director may, but 
is not required to be, an officer, director, employee, or agent of a 
Member. See By-Law Article I, Section (w). Member Representative 
Directors are directors that meet the fair representation 
requirement in Section 6(b)(3) of the Act, which requires that the 
``rules of the Exchange assure a fair representation of its members 
in the selection of its directors and administration of its affairs 
. . .''
    \13\ See By-Law Article III, Section 3-2(a). In addition, the 
Board qualification requirement that at least 20% of the Directors 
be Member Representative Directors will continue to apply. See LLC 
Agreement Section 8(a).
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    In light of the foregoing, the Exchange also proposes to make 
conforming changes to the definition of a ``Public member'' of a 
committee.\14\ Lastly, the Exchange proposes to add that a Public 
member means a committee member that has no material business 
relationship with FINRA (in addition to a broker or dealer, or the 
Exchange and its affiliates, as currently provided). This proposed 
change would align the Exchange's definition of ``Public member'' to 
its affiliated exchanges.\15\
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    \14\ See By-Law Article I, Section (hh).
    \15\ See BX By-Law Article I, Section (hh); Nasdaq By-Law 
Article I, Section (z); ISE By-Law Article I, Section (aa); GEMX By-
Law Article I, Section (aa); and MRX By-Law Article I, Section (aa).
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By-Law Article V, Section 5-2(c)
    Currently, By-Law Article V, Section 5-2(c) requires that the ROC 
be comprised of three members, each of whom shall be a Public Director 
and an ``independent director'' as defined in Nasdaq Rule 4200. The 
Exchange proposes to amend Section 5(c) to provide that the ROC shall 
be comprised of at least three members, as is currently set forth in 
the ROC Charter.\16\ All members of the ROC will continue to be Public 
Directors and ``independent directors.'' Lastly, the Exchange also 
proposes to make technical changes in Section 5-2(c) to update the 
reference to Nasdaq Rule 4200 to Rule 5605.
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    \16\ The ROC Charter is available at: http://ir.nasdaq.com/static-files/ad0a0102-e977-40cf-8139-15c359576a25.
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\17\ in general, and furthers the objectives of Section 
6(b)(1), Section 6(b)(3), and Section 6(b)(5) of the Act,\18\ in 
particular, which require, among other things, an exchange to be so 
organized as to have the capacity to be able to carry out the purposes 
of the Act; that one or more directors be representative of issuers and 
investors and not be associated with a member of the exchange, broker, 
or dealer; and that the rules of an exchange be designed to promote 
just and equitable principles of trade, to remove impediments to and 
perfect the mechanism of a free and open market and a national market 
system, and, in general to protect investors and the public interest.
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    \17\ 15 U.S.C. 78f(b).
    \18\ 15 U.S.C. 78f(b)(1), (b)(3), and (b)(5).
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LLC Agreement
    The Exchange believes that the proposed changes to the LLC 
Agreement provisions on distributions, books and records, and 
assignments are consistent with the Act. As discussed above, the 
Exchange believes that its proposal will bring greater specificity and 
detail to provisions related to the regulatory independence of the 
Exchange. The Exchange believes that the proposed changes will make 
clear the independence of the Exchange's regulatory function and 
facilitate the ability of the Exchange to carry out its responsibility 
and operate in a manner consistent with the Act. Furthermore, the 
proposed amendments will have the additional benefit of bringing the 
Exchange's LLC Agreement into greater conformity with those of ISE, 
GEMX, and MRX, thereby creating more consistent standards among the 
affiliated exchanges owned by Nasdaq, Inc.\19\
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    \19\ See ISE, GEMX, and MRX LLC Agreements, Sections 15, 16, and 
20.
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By-Law Article I
    The Exchange believes that the changes to the definitions of Non-
Industry Director and Non-Industry member proposed above will enhance 
the clarity of these provisions given that only the Exchange's 
affiliate (Nasdaq) currently operates an equities listing market. 
Accordingly, the proposed changes should more accurately reflect how 
the Exchange currently operates. The Exchange also believes that the 
proposed changes to the definitions of Public Director and Public 
member are consistent with the Act as these modifications are intended 
to make clear that a Director is not barred from being considered a 
Public Director merely because the Director serves as a director of an 
issuer of securities listed on a national securities exchange operated 
by the Exchange or one of its affiliates, and are consistent with 
current corporate governance practices.\20\ Furthermore, as discussed 
above, the requirements that the number of Non-Industry Directors 
(including at least one Public Director and at least one Director 
representative of issuers and investors) equal or exceed the sum of the 
number of Industry Directors and Member Representative Directors, and 
at least 20% of the Directors be Member Representative Directors, would 
continue to apply.\21\ Accordingly, the Exchange believes that the 
proposed changes will more accurately reflect the Exchange's current 
operations and governance practices while continuing to comport with 
the Exchange's statutory obligations regarding fair representation 
under Section 6(b)(3) of the Act. Lastly, the proposed changes in 
``Non-Industry member'' and ``Public member'' as discussed above will 
bring these definitions in greater conformity with the Exchange's 
affiliated exchanges, thereby creating more consistent standards among 
the affiliated exchanges owned by Nasdaq, Inc.
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    \20\ See supra note 11.
    \21\ See supra notes 12 and 13, with accompanying text.
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By-Law Article V, Section 5-2(c)
    The Exchange believes that the proposed rule change in By-Law 
Article V, Section 5-2(c) to provide that the ROC shall be comprised of 
at least three members is consistent with the Act because it will 
promote transparency to the Exchange's current practices by conforming 
the By-Law language to the ROC Charter. As discussed above, the 
composition requirements that all ROC members be Public Directors and 
``independent directors'' as defined in Nasdaq's Rules will remain 
unchanged with this proposal, thereby ensuring that an independent 
Board committee will continue to be responsible for the regulatory 
oversight of the Exchange. Lastly, the proposed technical change to 
update the reference to Nasdaq Rule 4200 to Rule 5605 will bring 
greater clarity to the Exchange's rules, which will protect investors 
and the public interest.

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

    Because the proposed rule change relates to the corporate 
governance of the Exchange and not to the Exchange's operations, the 
Exchange 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 either solicited or received.

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

[[Page 54213]]

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 Act \22\ and subparagraph (f)(6) of Rule 19b-4 thereunder.\23\
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    \22\ 15 U.S.C. 78s(b)(3)(A).
    \23\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file the proposed rule change, along 
with a brief description and text of the proposed rule change, at 
least five business days prior to the date of filing of the proposed 
rule change, or such shorter time as designated by the Commission. 
The Exchange has satisfied this requirement.
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    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the 
Act \24\ normally does not become operative for 30 days after the date 
of its filing. However, Rule 19b-4(f)(6)(iii) \25\ permits the 
Commission to designate a shorter time if such action is consistent 
with the protection of investors and the public interest. The Exchange 
has requested that the Commission waive the 30-day operative delay. The 
Commission notes that waiver of the operative delay would allow the 
Exchange to effect the changes to its LLC Agreement and By-Laws, which 
would provide more specificity and would better align provisions in the 
Exchange's LLC Agreement with those in the LLC Agreements of its 
affiliates, in time for the Exchange Board meeting on September 25, 
2019. The Commission believes that waiver of the 30-day operative delay 
is consistent with the protection of investors and the public interest. 
Accordingly, the Commission hereby waives the operative delay and 
designates the proposed rule change operative upon filing.\26\
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    \24\ 17 CFR 240.19b-4(f)(6).
    \25\ 17 CFR 240.19b-4(f)(6)(iii).
    \26\ For purposes only of waiving the 30-day operative delay, 
the Commission also has considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend 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. If the Commission 
takes such action, the Commission shall institute proceedings to 
determine whether the proposed rule change should be approved or 
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 email to rule-comments@sec.gov. Please include 
File Number SR-Phlx-2019-38 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-Phlx-2019-38. This file 
number should be included on the subject line if email 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 website (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 website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549, on official business days between the hours of 10:00 a.m. and 
3:00 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. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-Phlx-2019-38 and should be submitted on 
or before October 30, 2019.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\27\
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    \27\ 17 CFR 200.30-3(a)(12).
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Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2019-22012 Filed 10-8-19; 8:45 am]
 BILLING CODE 8011-01-P


