[Federal Register Volume 88, Number 31 (Wednesday, February 15, 2023)]
[Notices]
[Pages 9922-9925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03169]



[[Page 9922]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-96872; File No. SR-NYSECHX-2023-07]


Self-Regulatory Organizations; NYSE Chicago, Inc.; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change Extending 
the Expiration Date of the Temporary Amendments to Rules 10.9261 and 
10.9830

February 9, 2023.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given 
that, on January 31, 2023, the NYSE Chicago, Inc. (``NYSE Chicago'' or 
the ``Exchange'') filed with the Securities and Exchange Commission 
(the ``Commission'') the proposed rule change as described in Items I 
and II below, which Items have been prepared by the self-regulatory 
organization. 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\ 15 U.S.C. 78a.
    \3\ 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 extending the expiration date of the 
temporary amendments to Rules 10.9261 and 10.9830 as set forth in SR-
NYSECHX-2022-19 from January 31, 2023 to April 30, 2023, in conformity 
with recent changes by the Financial Industry Regulatory Authority, 
Inc. (``FINRA''). The proposed rule change would not make any changes 
to the text of Rules 10.9261 and 10.9830. The proposed rule change is 
available on the Exchange's website at www.nyse.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 self-regulatory organization 
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. The Exchange 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes extending the expiration date of the 
temporary amendments as set forth in NYSECHX-2022-19 \4\ to Rules 
10.9261 (Evidence and Procedure in Hearing) and 10.9830 (Hearing) from 
January 31, 2023 to April 30, 2023 to harmonize with recent changes by 
FINRA to extend the expiration of temporary amendments to its Rules 
9261 and 9830. NYSECHX-2022-19 temporarily granted to the Chief or 
Deputy Chief Hearing Officer the authority to order that hearings be 
conducted by video conference if warranted by the current COVID-19 
public health risks posed by in-person hearings. The proposed rule 
change would not make any changes to the text of Exchange Rules 10.9261 
and 10.9830.\5\
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    \4\ See Securities Exchange Act Release No. 95477 (August 11, 
2022), 85 FR 50680 (August 17, 2022) (SR-NYSECHX-2022-19) (``SR-
NYSECHX-2022-19'').
    \5\ The Exchange may submit a separate rule filing to extend the 
expiration date of the proposed temporary amendments if the Exchange 
requires temporary relief from the rule requirements identified in 
this proposal beyond April 30, 2023. The amended NYSE Chicago rules 
will revert back to their original state at the conclusion of the 
temporary relief period and any extension thereof.
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Background
    In 2022, NYSE Chicago adopted disciplinary rules that are, with 
certain exceptions, substantially the same as the disciplinary rules of 
its affiliate NYSE Arca, Inc., which are in turn substantially similar 
to the FINRA Rule 8000 Series and Rule 9000 Series, and which set forth 
rules for conducting investigations and enforcement actions.\6\
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    \6\ See Securities Exchange Act Release No. 95020 (June 1, 
2022), 87 FR 35034, (June 8, 2022) (SR-NYSECHX-2022-10) (Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change to Adopt 
Investigation, Disciplinary, Sanction, and Other Procedural Rules 
Modeled on the Rules of the Exchange's Affiliates) (``2022 Notice of 
Disciplinary Rules'').
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    In adopting disciplinary rules modeled on FINRA's rules, NYSE 
Chicago adopted the hearing and evidentiary processes set forth in Rule 
10.9261 and in Rule 10.9830 for hearings in matters involving temporary 
and permanent cease and desist orders under the Rule 9800 Series. As 
adopted, the text of Rule 10.9261 and Rule 10.9830 are substantially 
the same as the FINRA rules with certain modifications.\7\
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    \7\ See id.
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    In 2020, in view of the ongoing spread of COVID-19 and its effect 
on FINRA's adjudicatory functions nationwide, FINRA filed a temporary 
rule change to grant FINRA's Office of Hearing Officers (``OHO'') and 
the National Adjudicatory Council (``NAC'') the authority to conduct 
certain hearings by video conference, if warranted by the current 
COVID-19-related public health risks posed by in-person hearings. Among 
the rules FINRA amended were Rules 9261 and 9830.\8\
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    \8\ See Securities Exchange Act Release Nos. 83289 (September 2, 
2020), 85 FR 55712 (September 9, 2020) (SR-FINRA-2020-027) 
(``Initial FINRA Filing''). FINRA also proposed to temporarily amend 
FINRA Rules 1015 and 9524. FINRA Rule 1015 governs the process by 
which an applicant for new or continuing membership can appeal a 
decision rendered by FINRA's Department of Member Supervision under 
FINRA Rule 1014 or 1017 and request a hearing which would be 
conducted by a subcommittee of the NAC. See id. at 55714. The 
Exchange has not adopted FINRA Rule 1015. FINRA Rule 9524 governs 
the process by which a statutorily disqualified member firm or 
associated person can appeal the Department's recommendation to deny 
a firm or sponsoring firm's application to the NAC. See id. Under 
the Exchange's version of Rule 10.9524, if the CRO rejects the 
application, the ETP Holder or applicant may request a review by the 
Exchange Board of Directors. This differs from FINRA's process, 
which provides for a hearing before the NAC and further 
consideration by the FINRA Board of Directors.
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    FINRA represented in its filing that its protocol for conducting 
hearings by video conference would ensure that such hearings maintain 
fair process for the parties by, among other things, FINRA's use of a 
high quality, secure and user-friendly video conferencing service and 
provide thorough instructions, training and technical support to all 
hearing participants.\9\ According to FINRA, the proposed changes were 
a reasonable interim solution to allow FINRA's critical adjudicatory 
processes to continue to function while protecting the health and 
safety of hearing participants as FINRA works towards resuming in-
person hearings in a manner that is compliant with the current guidance 
of public health authorities.\10\
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    \9\ See Initial FINRA Filing, 85 FR at 55713.
    \10\ See id.
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    Since the Initial FINRA Filing (in 2020), FINRA periodically 
extended the temporary relief as the COVID-19 pandemic and concerns 
surrounding its spread persisted, with the most recent extension until 
January 31, 2023.\11\ In August 2022, the Exchange first filed to 
temporarily grant the Chief or Deputy Chief Hearing Officer the 
authority to order that hearings be conducted by video conference if 
warranted by public health risks posed by in-person hearings

[[Page 9923]]

during the ongoing COVID-19 pandemic, which relief it has likewise 
extended.\12\ Due to the continued presence and uncertainty of COVID-
19, FINRA believes that there is a continued need for temporary relief 
beyond January 31, 2023.\13\
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    \11\ See, e.g., Securities Exchange Act Release Nos. 94430 
(March 16, 2022), 87 FR 16262 (March 22, 2022) (SR-FINRA-2022-018); 
96107 (October 19, 2022), 87 FR 64526 (October 25, 2022) (SR-FINRA-
2022-029).
    \12\ See supra note 4, SR-NYSECHX-2022-19; see also Securities 
Exchange Act Release No. 96260 (November 8, 2022), 87 FR 68529 
(November 15, 2022) (SR-NYSECHX-2022-24).
    \13\ See Securities Exchange Act Release No. 96746 (January 25, 
2023) (``SR-FINRA-2023-001'').
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    According to FINRA, due to the upward trend in the number of COVID-
19 cases since October 2022--when FINRA last filed to extend the 
temporary relief, COVID-19 still remains a public health concern.\14\ 
For example, according to the Centers for Disease Control and 
Prevention (``CDC''), approximately 61.73 percent of counties in the 
United States have a medium or high COVID-19 Community Level based on 
the CDC's most recent calculations.\15\ The daily average number of 
hospital admissions is also on the rise.\16\ Much uncertainty also 
remains as to whether there will be a significant increase in the 
number of cases of COVID-19 in the future given the emergence of new 
Omicron variants that the CDC currently is tracking \17\ and the 
dissimilar vaccination rates (completed primary series and a first 
booster dose) throughout the United States.\18\ Due to the continued 
presence and uncertainty of COVID-19, FINRA believes that there is a 
continued need for temporary relief beyond January 31, 2023.\19\ On 
January 18, 2023, FINRA accordingly filed to extend the expiration date 
of the temporary rule amendments to, among other rules, FINRA Rule 9261 
and 9830 from January 31, 2023 to April 30, 2023.\20\
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    \14\ See id.
    \15\ See CDC, COVID Data Tracker--COVID-19 Integrated County 
View, https://covid.cdc.gov/covid-data-tracker/#county-view?list_select_state=all_states&list_select_county=all_counties&data-type=CommunityLevels&null=CommunityLevels (last visited Jan. 9, 
2023).
    \16\ See CDC, COVID Data Tracker Weekly Review--Daily Trend in 
Number of New COVID-19 Hospital Admissions in the United States, 
https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html (last visited Jan. 9, 2023) (``The current 7-day daily 
average for December 28, 2022-January 3, 2023, was 6,519. This is a 
16.1% increase from the prior 7-day average (5,613) from December 
21-27, 2022.'').
    \17\ These new Omicron variants include BQ.1.1, XBB.1.5 and 
BQ.1. See CDC, COVID Data Tracker--Variant Proportions, https://covid.cdc.govicovid-data-trackerNvariant-proportions (last visited 
Jan. 9, 2023).
    \18\ A state-by-state comparison of vaccination rates is 
available at https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-people-additional-dose-totalpop (last visited 
Jan. 9, 2023).
    \19\ See SR-FINRA-2023-001.
    \20\ See generally SR-FINRA-2023-001. As a further basis for 
extending the temporary rule relief until April 30, 2023, FINRA 
noted that its Board has approved the submission of a rule proposal 
to the Commission to make permanent, with some modifications, the 
temporary rules to allow hearings to be conducted by video 
conference originally set forth in the Initial FINRA Filing and SR-
FINRA-2020-015. See https://www.finra.org/about/governance/finra-board-governors/meetings/update-finra-board-governors-meeting-december-2022. See id., at n 14. FINRA indicated that the extension 
of the temporary rule amendments until April 30, 2023 would help 
avoid FINRA's rules reverting to their original form and allow FINRA 
time to file for (and the Commission time to approve) the permanent 
rules. See id.
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Proposed Rule Change
    Consistent with FINRA's recent proposal, the Exchange proposes to 
extend the expiration date of the temporary rule amendments to NYSE 
Chicago Rules 10.9261 and 10.9830 as set forth in SR-NYSECHX-2022-19 
from January 31, 2023 to April 30, 2023.
    As set forth in SR-FINRA-2023-001, due to the upward trend in the 
number of COVID-19 cases since October 2022--when FINRA last filed to 
extend the temporary relief, COVID-19 still remains a public health 
concern. For example, according to the Centers for Disease Control and 
Prevention (``CDC''), approximately 61.73 percent of counties in the 
United States have a medium or high COVID-19 Community Level based on 
the CDC's most recent calculations.\21\ The daily average number of 
hospital admissions is also on the rise.\22\ Much uncertainty also 
remains as to whether there will be a significant increase in the 
number of cases of COVID-19 in the future given the emergence of new 
Omicron variants that the CDC currently is tracking \23\ and the 
dissimilar vaccination rates (completed primary series and a first 
booster dose) throughout the United States.\24\ Due to the continued 
presence and uncertainty of COVID-19, FINRA believes that there is a 
continued need for temporary relief beyond January 31, 2023.\25\ FINRA 
accordingly proposed to extend the expiration date of the temporary 
rule amendments from January 31, 2023 to April 30, 2023.
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    \21\ See supra note 15 (CDC, COVID Data Tracker--COVID-19 
Integrated County View).
    \22\ See supra note 16 (CDC, COVID Data Tracker Weekly Review--
Daily Trend in Number of New COVID-19 Hospital Admissions in the 
United States).
    \23\ See supra note 17 (regarding the new Omicron variants 
described in CDC, COVID Data Tracker--Variant Proportions).
    \24\ See supra note 18 (regarding state-by-state comparison of 
COVID-19 vaccination rates).
    \25\ See SR-FINRA-2023-001.
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    The Exchange proposes to similarly extend the expiration date of 
the temporary rule amendments to NYSE Chicago Rules 10.9261 and 10.9830 
as set forth in SR-NYSECHX-2022-19 from January 31, 2023 to April 30, 
2023. The Exchange agrees with FINRA that due to the upward trend in 
the number of COVID-19 cases since October 2022--when FINRA last filed 
to extend the temporary relief, COVID-19 still remains a public health 
concern. The Exchange also agrees that due to the continued presence 
and uncertainty of COVID-19, for the reasons set forth in SR-FINRA-
2023-001, there is a continued need for this temporary relief beyond 
January 31, 2023. The proposed change would permit OHO to continue to 
assess, based on critical COVID-19 data and criteria and the guidance 
of health and security consultants, whether an in-person hearing would 
compromise the health and safety of the hearing participants such that 
the hearing should proceed by video conference. As noted in SR-FINRA-
2023-001, in deciding whether to schedule a hearing by video 
conference, OHO may consider a variety of other factors in addition to 
COVID-19 trends. Similarly, as noted in SR-FINRA-2023-001, in the 
Initial FINRA Filing, FINRA provided a non-exhaustive list of other 
factors OHO may take into consideration, including a hearing 
participant's individual health concerns and access to the connectivity 
and technology necessary to participate in a video conference 
hearing.\26\ The Exchange believes that this is a reasonable procedure 
to continue to follow for hearings under Rules 10.9261 and 10.9830 
chaired by a FINRA employee.
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    \26\ See SR-FINRA-2023-001.
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    As noted below, the Exchange has filed the proposed rule change for 
immediate effectiveness and has requested that the SEC waive the 
requirement that the proposed rule change not become operative for 30 
days after the date of the filing, so the Exchange can implement the 
proposed rule change immediately.
2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the 
Act,\27\ in general, and furthers the objectives of Section 
6(b)(5),\28\ in particular, because it is designed to prevent 
fraudulent and manipulative acts and practices, to promote just and 
equitable principles of trade, to foster cooperation and coordination 
with persons engaged in facilitating transactions in securities, to 
remove

[[Page 9924]]

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. Additionally, the Exchange believes the proposed 
rule change is designed to provide a fair procedure for the 
disciplining of members and persons associated with members, consistent 
with Sections 6(b)(7) and 6(d) of the Act.\29\
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    \27\ 15 U.S.C. 78f(b).
    \28\ 15 U.S.C. 78f(b)(5).
    \29\ 15 U.S.C. 78f(b)(7) and 78f(d).
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    The Exchange believes that the proposed rule change supports the 
objectives of the Act by providing greater harmonization between 
Exchange rules and FINRA rules of similar purpose, resulting in less 
burdensome and more efficient regulatory compliance. As such, the 
proposed rule change will foster cooperation and coordination with 
persons engaged in facilitating transactions in securities and will 
remove impediments to and perfect the mechanism of a free and open 
market and a national market system.
    The proposed rule change, which extends the expiration date of the 
temporary amendments to Exchange rules consistent with FINRA's 
extension to its Rules 9261 and 9830 as set forth in SR-FINRA-2023-001, 
will permit the Exchange to continue to effectively conduct hearings 
given the continued presence and uncertainty of COVID-19. Given that 
COVID-19 remains a public health concern and the uncertainty around a 
potential spike in cases of the disease, without this relief allowing 
OHO to proceed by video conference, some or all hearings may have to be 
postponed. The ability to conduct hearings by video conference will 
permit the adjudicatory functions of the Exchange's disciplinary rules 
to continue unabated, thereby avoiding protracted delays. The Exchange 
believes that this is especially important in matters where temporary 
and permanent cease and desist orders are sought because the proposed 
rule change would enable those hearings to continue to proceed without 
delay, thereby enabling the Exchange to continue to take immediate 
action to stop significant, ongoing customer harm, to the benefit of 
the investing public.
    As set forth in detail in NYSECHX-2022-19, the temporary relief to 
permit hearings to be conducted via video conference maintains fair 
process and will continue to provide fair process consistent with 
Sections 6(b)(7) and 6(d) of the Act \30\ while striking an appropriate 
balance between providing fair process and enabling the Exchange to 
fulfill its statutory obligations to protect investors and maintain 
fair and orderly markets while avoiding the COVID-19-related public 
health risks for hearing participants. The Exchange notes that this 
proposal, like NYSECHX-2022-19, provides only temporary relief. As 
proposed, the changes would be in place through April 30, 2023. As 
noted in NYSECHX-2022-19 and above, the amended rules will revert back 
to their original state at the conclusion of the temporary relief 
period and, if applicable, any extension thereof.
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    \30\ 15 U.S.C. 78f(b)(7) and 78f(d).
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    Accordingly, the proposed rule change extending this temporary 
relief is in the public interest and consistent with the Act's purpose.

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

    The Exchange does not believe that the proposed temporary rule 
change will impose any burden on competition that is not necessary or 
appropriate in furtherance of the purposes of the Act. The proposed 
rule change is not intended to address competitive issues but is rather 
intended solely to extend temporary relief necessitated by the 
continued presence and uncertainty of COVID-19 and the related health 
and safety risks of conducting in-person activities. The Exchange 
believes that the proposed rule change will prevent unnecessary 
impediments to critical adjudicatory processes and its ability to 
fulfill its statutory obligations to protect investors and maintain 
fair and orderly markets that would otherwise result if the temporary 
amendments were to expire on January 31, 2023.

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

    The Exchange has filed the proposed rule change pursuant to Section 
19(b)(3)(A)(iii) of the Act \31\ and Rule 19b-4(f)(6) thereunder.\32\ 
Because the 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 prior to 
30 days from the date on which it was filed, or such shorter time as 
the Commission may designate, if consistent with the protection of 
investors and the public interest, the proposed rule change has become 
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.
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    \31\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \32\ 17 CFR 240.19b-4(f)(6).
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    A proposed rule change filed under Rule 19b-4(f)(6) \33\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b4(f)(6)(iii),\34\ the Commission 
may designate a shorter time if such action is consistent with the 
protection of investors and the public interest. The Exchange has asked 
the Commission to waive the 30-day operative delay so that the proposal 
may become operative immediately upon filing. The Exchange has 
indicated that there is a continued need to extend the temporary relief 
because the Exchange agrees with FINRA that the COVID-19 related health 
concerns necessitating this relief will continue beyond January 31, 
2023.\35\ The Exchange also states that extending the temporary relief 
provided in SR-NYSECHX-2022-19 immediately upon filing and without a 
30-day operative delay will allow the Exchange to continue critical 
adjudicatory and review processes so that the Exchange may continue to 
operate effectively and meet its critical investor protection goals, 
while also protecting the health and safety of hearing 
participants.\36\ The Commission also notes that this proposal extends 
without change the temporary relief previously provided by SR-NYSECHX-
2022-19.\37\ As proposed, the temporary changes would be in place 
through April 30, 2023 and the amended rules will revert back to their 
original state at the conclusion of the temporary relief period and, if 
applicable, any extension thereof.\38\ For these reasons, the 
Commission believes that waiver of the 30-day operative delay for this 
proposal is consistent with the protection of investors and the public 
interest. Accordingly, the Commission hereby waives the 30-day

[[Page 9925]]

operative delay and designates the proposal operative upon filing.\39\
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    \33\ 17 CFR 240.19b-4(f)(6).
    \34\ 17 CFR 240.19b-4(f)(6)(iii).
    \35\ See supra Item II; see also SR-FINRA-2023-001.
    \36\ See SR-FINRA-2023-001 (noting the same in granting FINRA's 
request to waive the 30-day operative delay so that SR-FINRA-2023-
001 would become operative immediately upon filing).
    \37\ See supra note 4.
    \38\ See supra note 5. As noted above, the Exchange states that 
if it requires temporary relief from the rule requirements 
identified in this proposal beyond April 30, 2023, it may submit a 
separate rule filing to extend the effectiveness of the temporary 
relief under these rules.
    \39\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposed rule change'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 such 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 under 
Section 19(b)(2)(B) \40\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \40\ 15 U.S.C. 78s(b)(2)(B).
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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 email to [email protected]. Please include 
File Number SR-NYSECHX-2023-07 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-NYSECHX-2023-07. 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-NYSECHX-2023-07 and should be submitted 
on or before March 8, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\41\
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    \41\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-03169 Filed 2-14-23; 8:45 am]
BILLING CODE 8011-01-P


