[Federal Register Volume 88, Number 48 (Monday, March 13, 2023)]
[Notices]
[Pages 15476-15480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05032]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97052; File No. SR-NYSECHX-2023-09]


Self-Regulatory Organizations; NYSE Chicago, Inc.; Notice of 
Filing of Proposed Rule Change To Adopt New NYSE Chicago Rule 29 To 
Establish Listing Standards Related To Recovery of Erroneously Awarded 
Incentive-Based Executive Compensation

March 7, 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 February 22, 2023, 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, II, 
and III 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 to adopt new Rule 29 to require issuers to 
develop and implement a policy providing for the recovery of 
erroneously awarded incentive-based compensation received by current or 
former executive officers. 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
    On October 26, 2022, the Securities and Exchange Commission 
(``SEC'') adopted a new rule and rule amendments \4\ to implement 
Section 954 of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act of 2010 (``Dodd-Frank Act''),\5\ which added Section 10D 
to the Act.\6\ In accordance with Section 10D of the Act, the final 
rules direct the national securities exchanges and associations that 
list securities to establish listing standards that require each issuer 
to develop and implement a policy providing for the recovery, in the 
event of a required accounting restatement, of incentive-based 
compensation received by current or former executive officers where 
that compensation is based on the erroneously reported financial 
information. The listing standards must also require the disclosure of 
the policy. Additionally, the final rules require a listed issuer to 
file the policy as an exhibit to its annual report and to include other 
disclosures in the event a recovery analysis is triggered under the 
policy.
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    \4\ See Release Nos. 33-11126; 34-96159; IC- 34732; File No. S7-
12-15; 87 FR 73076 (November 28, 2022).
    \5\ 2 Public Law 111-203, 124 Stat. 1900 (2010).
    \6\ 15 U.S.C. 78j-4.
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    Specifically, the rule amendments the SEC adopted pursuant to 
Section 10D of the Act \7\ require specific disclosure of the listed 
issuer's policy on recovery of

[[Page 15477]]

incentive-based compensation and information about actions taken 
pursuant to such recovery policy. Rule 10D-1 requires listing exchanges 
to require that listed issuers file all disclosures with respect to 
their recovery policies in accordance with the requirements of the 
Federal securities laws, including the disclosures required by the 
applicable SEC filings. The rule amendments require listing exchanges 
to require each listed issuer to: (i) file their written recovery 
policies as exhibits to their annual reports; (ii) indicate by check 
boxes on their annual reports whether the financial statements included 
in the filings reflect correction of an error to previously issued 
financial statements and whether any of those error corrections are 
restatements that required a recovery analysis; and (iii) disclose any 
actions they have taken pursuant to such recovery policies.
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    \7\ See footnote 5 supra.
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    Rule 10D-1 requires that the issuer will recover reasonably 
promptly the amount of erroneously awarded incentive-based compensation 
in the event that the issuer is required to prepare an accounting 
restatement due to the material noncompliance of the issuer with any 
financial reporting requirements under the securities laws. In the 
adopting release for Rule 10D-1, the SEC states that the issuer and its 
directors and officers must comply with this requirement in a manner 
that is consistent with the exercise of their fiduciary duty to 
safeguard the assets of the issuer (including the time value of any 
potentially recoverable compensation). The issuer's obligation to 
recover erroneously awarded incentive based compensation reasonably 
promptly will be assessed on a holistic basis with respect to each such 
accounting restatement prepared by the issuer. In evaluating whether an 
issuer is recovering erroneously awarded incentive-based compensation 
reasonably promptly, the Exchange will consider whether the issuer is 
pursuing an appropriate balance of cost and speed in determining the 
appropriate means to seek recovery, and whether the issuer is securing 
recovery through means that are appropriate based on the particular 
facts and circumstances of each executive officer that owes a 
recoverable amount.
    Rule 10D-1 became effective on January 27, 2023. Exchanges are 
required to file proposed listing standards no later than February 27, 
2023, and the listing standards must be effective no later than 
November 28, 2023. Issuers subject to such listing standards will be 
required to adopt a recovery policy no later than 60 days following the 
date on which the applicable listing standards become effective.
Proposed NYSE Chicago Rule
    NYSE Chicago proposes to comply with Rule 10D-1 by adding new Rule 
29 to Chapter 22 of the NYSE Chicago Rules. Proposed Rule 29 is 
designed to conform closely to the applicable language of Rule 10D-1. 
Proposed Rule 29 would prohibit the initial or continued listing of any 
security of an issuer that is not in compliance with the requirements 
of any portion thereof.
Implementation
    Proposed Rule 29(b) would establish the timeframe within which 
listed companies must comply with proposed Rule 29. Specifically:
     Each listed issuer must adopt the recovery policy required 
by proposed Rule 29 (``Recovery Policy'') no later than 60 days from 
the adoption of the proposed listing standard (``Effective Date'').
     Each listed issuer must comply with its Recovery Policy 
for all incentive-based compensation Received (as such term is defined 
in proposed Rule 29(e) as set forth below) by executive officers on or 
after the Effective Date that results from attainment of a financial 
reporting measure based on or derived from financial information for 
any fiscal period ending on or after the Effective Date.
     Each listed issuer must provide the required disclosures 
in the applicable SEC filings required on or after the Effective Date.
Requirements of Proposed Rule
    The requirements of proposed Rule 29 would be as follows:
     The issuer must adopt and comply with a written Recovery 
Policy providing that the issuer will recover reasonably promptly the 
amount of erroneously awarded incentive-based compensation in the event 
that the issuer is required to prepare an accounting restatement due to 
the material noncompliance of the issuer with any financial reporting 
requirement under the securities laws, including any required 
accounting restatement to correct an error in previously issued 
financial statements that is material to the previously issued 
financial statements, or that would result in a material misstatement 
if the error were corrected in the current period or left uncorrected 
in the current period.
     The issuer's Recovery Policy must apply to all incentive-
based compensation received by a person:
    [cir] After beginning service as an executive officer;
    [cir] Who served as an executive officer at any time during the 
performance period for that incentive-based compensation;
    [cir] While the issuer has a class of securities listed on a 
national securities exchange or a national securities association; and
    [cir] During the three completed fiscal years immediately preceding 
the date that the issuer is required to prepare an accounting 
restatement as described in paragraph (c)(1) of proposed Rule 29. In 
addition to these last three completed fiscal years, the Recovery 
Policy must apply to any transition period (that results from a change 
in the issuer's fiscal year) within or immediately following those 
three completed fiscal years. However, a transition period between the 
last day of the issuer's previous fiscal year end and the first day of 
its new fiscal year that comprises a period of nine to 12 months would 
be deemed a completed fiscal year. An issuer's obligation to recover 
erroneously awarded compensation is not dependent on if or when the 
restated financial statements are filed.
     For purposes of determining the relevant recovery period, 
the date that an issuer is required to prepare an accounting 
restatement as described in paragraph (c)(1) of Rule 29 is the earlier 
to occur of:
    [cir] The date the issuer's board of directors, a committee of the 
board of directors, or the officer or officers of the issuer authorized 
to take such action if board action is not required, concludes, or 
reasonably should have concluded, that the issuer is required to 
prepare an accounting restatement as described in paragraph (c)(1) of 
proposed Rule 29; or
    [cir] The date a court, regulator, or other legally authorized body 
directs the issuer to prepare an accounting restatement as described in 
paragraph (c)(1) of proposed Rule 29.
     The amount of incentive-based compensation that must be 
subject to the issuer's Recovery Policy (``erroneously awarded 
compensation'') is the amount of incentive-based compensation received 
that exceeds the amount of incentive-based compensation that otherwise 
would have been received had it been determined based on the restated 
amounts, and must be computed without regard to any taxes paid. For 
incentive-based compensation based on stock price or total shareholder 
return, where the amount of erroneously awarded compensation is not 
subject to mathematical recalculation directly

[[Page 15478]]

from the information in an accounting restatement:
    [cir] The amount must be based on a reasonable estimate of the 
effect of the accounting restatement on the stock price or total 
shareholder return upon which the incentive-based compensation was 
received; and
    [cir] The issuer must maintain documentation of the determination 
of that reasonable estimate and provide such documentation to the 
Exchange.
     The issuer must recover erroneously awarded compensation 
in compliance with its Recovery Policy except to the extent that the 
conditions in one of the three bullets set forth below are met, and the 
issuer's committee of independent directors responsible for executive 
compensation decisions, or in the absence of such a committee, a 
majority of the independent directors serving on the board, has made a 
determination that recovery would be impracticable.
    [cir] The direct expense paid to a third party to assist in 
enforcing the policy would exceed the amount to be recovered. Before 
concluding that it would be impracticable to recover any amount of 
erroneously awarded compensation based on expense of enforcement, the 
issuer must make a reasonable attempt to recover such erroneously 
awarded compensation, document such reasonable attempt(s) to recover, 
and provide that documentation to the Exchange.
    [cir] Recovery would violate home country law where that law was 
adopted prior to November 28, 2022. Before concluding that it would be 
impracticable to recover any amount of erroneously awarded compensation 
based on violation of home country law, the issuer must obtain an 
opinion of home country counsel, acceptable to the Exchange, that 
recovery would result in such a violation, and must provide such 
opinion to the Exchange.
    [cir] Recovery would likely cause an otherwise tax-qualified 
retirement plan, under which benefits are broadly available to 
employees of the registrant, to fail to meet the requirements of 26 
U.S.C. 401(a)(13) or 26 U.S.C. 411(a) and regulations thereunder.
     The issuer is prohibited from indemnifying any executive 
officer or former executive officer against the loss of erroneously 
awarded compensation.
Disclosure in SEC Filings
    The issuer must file all disclosures with respect to such Recovery 
Policy in accordance with the requirements of the Federal securities 
laws, including the disclosure required by the applicable Commission 
filings.
General Exemptions
    The requirements of proposed Rule 29 would not apply to the listing 
of:
     A security futures product cleared by a clearing agency 
that is registered pursuant to section 17A of the Act \8\ or that is 
exempt from the registration requirements of section 17A(b)(7)(A); \9\
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    \8\ 15 U.S.C. 78q-1.
    \9\ 15 U.S.C. 78q-1(b)(7)(A).
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     A standardized option, as defined in 17 CFR 240.9b-
1(a)(4), issued by a clearing agency that is registered pursuant to 
section 17A of the Act; \10\
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    \10\ 15 U.S.C. 78q-1.
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     Any security issued by a unit investment trust, as defined 
in 15 U.S.C. 80a-4(2); (4) Any security issued by a management company, 
as defined in 15 U.S.C. 80a-4(3), that is registered under section 8 of 
the Investment Company Act of 1940,\11\ if such management company has 
not awarded incentive-based compensation to any executive officer of 
the company in any of the last three fiscal years, or in the case of a 
company that has been listed for less than three fiscal years, since 
the listing of the company.
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    \11\ 15 U.S.C. 80a-8.
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Definitions Under Proposed Rule 29
    Unless the context otherwise requires, the following definitions 
apply for purposes of proposed Rule 29:
    Executive Officer. An executive officer is the issuer's president, 
principal financial officer, principal accounting officer (or if there 
is no such accounting officer, the controller), any vice-president of 
the issuer in charge of a principal business unit, division, or 
function (such as sales, administration, or finance), any other officer 
who performs a policy-making function, or any other person who performs 
similar policy-making functions for the issuer. Executive officers of 
the issuer's parent(s) or subsidiaries are deemed executive officers of 
the issuer if they perform such policy making functions for the issuer. 
In addition, when the issuer is a limited partnership, officers or 
employees of the general partner(s) who perform policy-making functions 
for the limited partnership are deemed officers of the limited 
partnership. When the issuer is a trust, officers, or employees of the 
trustee(s) who perform policy-making functions for the trust are deemed 
officers of the trust. Policy-making function is not intended to 
include policy-making functions that are not significant. 
Identification of an executive officer for purposes of Rule 29 would 
include at a minimum executive officers identified pursuant to 17 CFR 
229.401(b).
    Financial reporting measures. Financial reporting measures are 
measures that are determined and presented in accordance with the 
accounting principles used in preparing the issuer's financial 
statements, and any measures that are derived wholly or in part from 
such measures. Stock price and total shareholder return are also 
financial reporting measures. A financial reporting measure need not be 
presented within the financial statements or included in a filing with 
the Commission.
    Incentive-based compensation. Incentive-based compensation is any 
compensation that is granted, earned, or vested based wholly or in part 
upon the attainment of a financial reporting measure.
    Received. Incentive-based compensation is deemed received in the 
issuer's fiscal period during which the financial reporting measure 
specified in the incentive-based compensation award is attained, even 
if the payment or grant of the incentive-based compensation occurs 
after the end of that period.
Delisting
    The Exchange proposes to adopt new Rule 29(f) (``Noncompliance with 
Rule 29 (Erroneously Awarded Compensation)'').
    Proposed Rule 29(f)(i) would provide that in any case where the 
Exchange determines that a listed issuer has not recovered erroneously-
awarded compensation as required by its Recovery Policy reasonably 
promptly after such obligation is incurred, trading in all listed 
securities of such listed issuer would be immediately suspended and the 
Exchange would immediately commence delisting procedures with respect 
to all such listed securities. Rule 10D-1 does not specify the time by 
which the issuer must complete the recovery of excess incentive-based 
compensation, NYSE Chicago would however determine whether the steps an 
issuer is taking constitute compliance with its compensation Recovery 
Policy. A listed issuer would not be eligible to follow the procedures 
outlined in Rules 17A or 22, as applicable, with respect to such a 
delisting determination, and any such listed issuer would be subject to 
delisting procedures as set forth in Rule 4.
    Proposed Rule 29(f)(ii) would deem a listed issuer to be below 
standards in the event of any failure by such listed issuer to adopt 
its required Recovery Policy by the Effective Date (a ``Late Recovery 
Policy Adoption Delinquency''). The listed issuer would be required to 
notify the Exchange in

[[Page 15479]]

writing within five days of the Effective Date if it fails to adopt its 
Recovery Policy by that date.
    Upon the occurrence of a Late Recovery Policy Adoption Delinquency, 
the Exchange will promptly send written notification (the ``Late 
Recovery Policy Adoption Delinquency Notification'') to a listed issuer 
of the procedures set forth below. Within five days of the date of the 
Late Recovery Policy Adoption Delinquency Notification, the listed 
issuer will be required to (a) contact the Exchange to discuss the 
status of the delayed Recovery Policy and (b) issue a press release 
disclosing the occurrence of the Late Recovery Policy Adoption 
Delinquency, the reason for the Late Recovery Policy Adoption 
Delinquency and, if known, the anticipated date such Late Recovery 
Policy Adoption Delinquency will be cured. If the listed issuer has not 
issued the required press release within five days of the date of the 
Late Recovery Policy Adoption Delinquency Notification, the Exchange 
will issue a press release stating that the issuer has incurred a Late 
Recovery Policy Adoption Delinquency.
    During the six-month period from the date of the Late Recovery 
Policy Adoption Delinquency (the ``Initial Late Recovery Policy 
Adoption Cure Period''), the Exchange will monitor the listed issuer 
and the status of the delayed Recovery Policy, including through 
contact with the company, until the Late Recovery Policy Adoption 
Delinquency is cured. If the listed issuer fails to cure the Late 
Recovery Policy Adoption Delinquency within the Initial Late Recovery 
Policy Adoption Cure Period, the Exchange may, in the Exchange's sole 
discretion, allow the company's securities to be traded for up to an 
additional six-month period (the ``Additional Late Recovery Policy 
Adoption Cure Period'') depending on the company's specific 
circumstances. If the Exchange determines that an Additional Late 
Recovery Policy Adoption Cure Period is not appropriate, suspension and 
delisting procedures will commence in accordance with the procedures 
set out in Rule 4. A listed issuer is not eligible to follow the 
procedures outlined in Rules 17A or 22, as applicable, with respect to 
these criteria. Notwithstanding the foregoing, however, the Exchange 
may in its sole discretion decide (i) not to afford a listed issuer any 
Initial Late Recovery Policy Adoption Cure Period or Additional Late 
Recovery Policy Adoption Cure Period, as the case may be, at all or 
(ii) at any time during the Initial Late Recovery Policy Adoption Cure 
Period or Additional Late Recovery Policy Adoption Cure Period, to 
truncate the Initial Cure Period or Additional Cure Period, as the case 
may be, and immediately commence suspension and delisting procedures if 
the listed issuer is subject to delisting pursuant to any other 
provision of the Company Guide, including if the Exchange believes, in 
the Exchange's sole discretion, that continued listing and trading of a 
company's securities on the Exchange is inadvisable or unwarranted in 
accordance with Rules 17A or 22. The Exchange may also commence 
suspension and delisting procedures without affording any cure period 
at all or at any time during the Initial Late Recovery Policy Adoption 
Cure Period or Additional Late Recovery Policy Adoption Cure Period if 
the Exchange believes, in the Exchange's sole discretion, that it is 
advisable to do so on the basis of an analysis of all relevant factors.
    In determining whether an Additional Late Recovery Policy Adoption 
Cure Period after the expiration of the Initial Late Recovery Policy 
Adoption Cure Period is appropriate, the Exchange will consider the 
likelihood that the delayed Recovery Policy can be adopted during the 
Additional Late Recovery Policy Adoption Cure Period. If the Exchange 
determines that an Additional Late Recovery Policy Adoption Cure Period 
is appropriate and the listed issuer fails to adopt a Recovery Policy 
by the end of such Additional Late Recovery Policy Adoption Cure 
Period, suspension and delisting procedures will commence immediately 
in accordance with the procedures set out in Rule 4. In no event will 
the Exchange continue to trade a company's securities if that listed 
issuer has failed to cure its Late Recovery Policy Adoption Delinquency 
on the date that is twelve months after the commencement of the 
company's Late Recovery Policy Adoption Delinquency.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\12\ in general, and furthers the 
objectives of Section 6(b)(5) of the Act \13\ in particular, in that it 
is designed to promote just and equitable principles of trade, to 
foster cooperation and coordination with persons engaged in regulating, 
clearing, settling, processing information with respect to, and 
facilitating transactions in securities, 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 
and is not designed to permit unfair discrimination between customers, 
issuers, brokers, or dealers. The Exchange believes that proposed new 
Rule 29 is consistent with the protection of investors and the public 
interest because it furthers the goal of ensuring the accuracy of the 
financial disclosure of listed issuers. Specifically, the Exchange 
believes the recovery requirement may provide executive officers with 
an increased incentive to take steps to reduce the likelihood of 
inadvertent misreporting and will reduce the financial benefits to 
executive officers who choose to pursue impermissible accounting 
methods, which we expect will further discourage such behavior. The 
Exchange believes that these increased incentives may improve the 
overall quality and reliability of financial reporting, which further 
benefits investors. The new proposed Rule 29 is also consistent with 
the requirements of Section 10D of the Act and Rule 10D-1 thereunder, 
as it would establish a listing standard that is consistent with the 
requirements of Rule 10D-1.
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    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(5).
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    The Exchange proposes to adopt continued listing standards for 
proposed Rule 29 in proposed Rule 29(f). Pursuant to proposed Rule 
29(f)(i), a listed issuer would be subject to immediate suspension and 
delisting without eligibility for cure periods if the Exchange has 
determined that the listed issuer has failed to recover reasonably 
promptly erroneously-awarded compensation as requited by its Recovery 
Policy. Proposed Rule 29(f)(ii) would provide compliance periods of up 
to 12 months for a listed issuer that is delayed in adopting its 
Recovery Policy. The Exchange believes that the compliance procedures 
set forth in proposed Rule 29(f) are appropriately rigorous and are 
consistent with the public interest and the interests of investors.

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

    The Exchange 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. The Exchange notes that Rule 
10D-1 under the Act requires all listing exchanges to adopt rules with 
respect to the recovery of erroneously awarded compensation that are 
substantively identically to proposed Rule 29.

[[Page 15480]]

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

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period up to 90 days (i) as the 
Commission may designate if it finds such longer period to be 
appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:
    (A) by order approve or disapprove the proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule 
change should be 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 [email protected]. Please include 
File Number SR-NYSECHX-2023-09 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-2023-09. 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-2023-09, and should be submitted 
on or before April 3, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-05032 Filed 3-10-23; 8:45 am]
BILLING CODE 8011-01-P


