[Federal Register Volume 88, Number 66 (Thursday, April 6, 2023)]
[Notices]
[Pages 20582-20586]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07141]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97232; File No. SR-Phlx-2023-09]


Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing 
of Proposed Rule Change To Permit the Listing and Trading of Options on 
the Nasdaq-100 ESG Index

March 31, 2023.
    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 March 28, 2023, 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 permit the listing and trading of options 
on the Nasdaq-100 ESG Index.
    The text of the proposed rule change is available on the Exchange's 
website at https://listingcenter.nasdaq.com/rulebook/phlx/rules, at the 
principal office of the Exchange, and at the Commission's Public 
Reference Room.

[[Page 20583]]

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 permit the listing and trading of options 
on the Nasdaq-100 ESG Index or ``NDXESG''.\3\ The Nasdaq-100 ESG Index 
is a broad based, modified ESG Risk Rating Score-adjusted market-
capitalization-weighted index that is designed to measure the 
performance of the companies in the Nasdaq-100 Index (``NDX'') that 
meet specific environmental, social and governance (``ESG'') 
criteria.\4\ The Nasdaq-100 ESG Index at all times consists of a 
selection of securities in NDX.\5\ In order to be selected for the 
Nasdaq-100 ESG Index, a Nasdaq-100 Index company must: (1) not be 
involved in specific business activities, as defined in the methodology 
\6\ and determined by Sustainalytics; \7\ (2) not be deemed non-
compliant with the principles of the United Nations Global Compact, as 
determined by Sustainalytics; (3) not have a controversy level higher 
than four (4), as defined by Sustainalytics; and (4) have a 
Sustainalytics ESG Risk Rating Score lower than 40. There are various 
stages in the constituent weighting process which are outlined in the 
methodology.\8\
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    \3\ These options would trade under the symbol ``EXGN.''
    \4\ Companies are evaluated and weighted on the basis of their 
business activities, controversies and ESG Risk Ratings.
    \5\ See https://indexes.nasdaqomx.com/docs/methodology_NDXESG.pdf.
    \6\ See supra note 5.
    \7\ Sustainalytics is a company that rates the sustainability of 
listed companies based on their ESG performance.
    \8\ See supra note 5.
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Initial and Maintenance Listing Criteria
    The Nasdaq-100 ESG Index meets the definition of a broad-based 
index as set forth in Options 4A, Section 2(a)(13) \9\ (i.e., an index 
designed to be representative of a stock market as a whole or of a 
range of companies in unrelated industries). Additionally, the Nasdaq-
100 ESG Index satisfies the initial listing criteria of a broad-based 
index, as set forth in Options 4A, Section 3(d):
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    \9\ The Exchange proposes to amend Options 4A, Section 3(d)(1) 
to correct a citation to the definition of a broad-based index from 
Section 2(a)(11) to Section 2(a)(13).

    (1) The index is broad-based, as defined in Options 4A, Section 
2(a)(13);
    (2) Options on the index are designated as A.M.-settled index 
options;
    (3) The index is capitalization-weighted, price-weighted, 
modified capitalization-weighted or equal dollar-weighted;
    (4) The index consists of 50 or more component securities;
    (5) Component securities that account for at least ninety-five 
percent (95%) of the weight of the index have a market 
capitalization of at least $ 75 million, except that component 
securities that account for at least sixty-five percent (65%) of the 
weight of the index have a market capitalization of at least $ 100 
million;
    (6) Component securities that account for at least eighty 
percent (80%) of the weight of the index satisfy the requirements of 
Options 4, Section 3 applicable to individual underlying securities;
    (7) Each component security that accounts for at least one 
percent (1%) of the weight of the index has an average daily trading 
volume of at least 90,000 shares during the last six month period;
    (8) No single component security accounts for more than ten 
percent (10%) of the weight of the index, and the five highest 
weighted component securities in the index do not, in the aggregate, 
account for more than thirty-three percent (33%) of the weight of 
the index;
    (9) Each component security must be an ``NMS Stock'' as defined 
in rule 600 of Regulation NMS under the Exchange Act;
    (10) Non-U.S. component securities (stocks or ADRs) that are not 
subject to comprehensive surveillance agreements do not, in the 
aggregate, represent more than twenty percent (20%) of the weight of 
the index;
    (11) The current index value is widely disseminated at least 
once every fifteen (15) seconds by one or more major market data 
vendors during the time options on the index are traded on the 
Exchange;
    (12) The Exchange reasonably believes it has adequate System 
capacity to support the trading of options on the index, based on a 
calculation of the Exchange's current Independent System Capacity 
Advisor (ISCA) allocation and the number of new messages per second 
expected to be generated by options on such index;
    (13) An equal dollar-weighted index is rebalanced at least once 
every calendar quarter;
    (14) If an index is maintained by a broker-dealer, the index is 
calculated by a third-party who is not a broker-dealer, and the 
broker-dealer has erected an informational barrier around its 
personnel who have access to information concerning changes in, and 
adjustments to, the index;
    (15) The Exchange has written surveillance procedures in place 
with respect to surveillance of trading of options on the index.

    The Nasdaq-100 ESG Index will also be subject to the maintenance 
listing standards set forth in Options 4A, Section 3(e):

    (1) The conditions set forth in subparagraphs (d)(1), (2), (3), 
(9), (10), (11), (12), (13), (14) and (15) must continue to be 
satisfied. The conditions set forth in subparagraphs (d)(5), (6), 
(7) and (8) must be satisfied only as of the first day of January 
and July in each year;
    (2) The total number of component securities in the index may 
not increase or decrease by more than ten percent (10%) from the 
number of component securities in the index at the time of its 
initial listing.\10\
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    \10\ As is the case with other index options authorized for 
listing and trading on Phlx, in the event the Nasdaq-100 ESG Index 
fails to satisfy the maintenance listing standards, the Exchange 
will not open for trading any additional series of options of that 
class unless such failure is determined by the Exchange not to be 
significant and the Commission concurs in that determination, or 
unless the continued listing of that class of index options has been 
approved by the Commission under Section 19(b)(2) of the Act.
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Expiration Months, Settlement, and Exercise Style
    Consistent with existing rules for certain index options, the 
Exchange will allow up to twelve near-term expiration months for the 
Nasdaq-100 ESG Index options (``NDXESG options'') \11\ as well as 
LEAPS.\12\ Options on NDX may list up to twelve near-term expiration 
months pursuant to Phlx Options 4A, Section 12(a)(4). The Nasdaq-100 
ESG Index consists of components that are also included in NDX, as 
discussed above. Because of the relationship between the Nasdaq-100 ESG 
Index and NDX, which will likely result in market participants' 
investment and hedging strategies consisting of options over both, the 
Exchange believes it is appropriate to permit the same number of 
monthly expirations for the Nasdaq-100 ESG Index and NDX. Strike price 
intervals would be at no less than $2.50 intervals.\13\
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    \11\ See Phlx Options 4A, Section 12(a)(4).
    \12\ See Phlx Options 4A, Section 12(b)(2).
    \13\ See proposed Phlx Options 4A, Section 12(a)(2).
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    The NDXESG options will be a.m.-settled \14\ and cash-settled 
contracts with European-style exercise.\15\ A.M.-

[[Page 20584]]

settlement is consistent with the generic listing criteria for broad-
based indexes,\16\ and thus it is common for index options to be a.m.-
settled. The Exchange proposes to amend Phlx Options 4A, Section 
12(e)(II) to add the Nasdaq-100 ESG Index options to the list of other 
a.m.-settled options. European-style exercise is consistent with many 
index options, as set forth in Options 4A, Section 12(a)(5). The 
Exchange proposes to amend Options 4A, Section 12(a)(5) to add the 
NDXESG options to the list of European-style index options. Standard 
third-Friday NDX options are a.m.-settled with European-style exercise. 
Because of the relationship between the Nasdaq-100 ESG Index and the 
NDX, which will likely result in market participants' investment and 
hedging strategies consisting of options over both, the Exchange 
believes it is appropriate to list the NDXESG options with the same 
settlement and exercise style as the other NDX options.
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    \14\ See proposed Phlx Options 4A, Section 12(e)(II).
    \15\ See proposed Phlx Options 4A, Section 12(a)(5).
    \16\ See Phlx Options 4A, Section 3(d).
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Minimum Trading Increment
    The Exchange proposes the minimum trading increment for NDXESG 
options would be $0.05 for options trading below $3.00 and $0.10 for 
all other options.\17\
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    \17\ See Phlx Options 3, Section 3.
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Reporting Authority
    The Nasdaq Stock Market LLC would be the Reporting Authority for 
the Nasdaq-100 ESG Index.\18\
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    \18\ See proposed Phlx Supplementary Material .02 to Options 4A, 
Section 2.
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Position Limit and Exercise Limits
    The position limits for options on the Nasdaq-100 ESG Index would 
be 25,000 contracts on the same side of the market in accordance with 
Phlx Options 4A, Section 6(a). The exercise limits for options on the 
Nasdaq-100 ESG Index shall be equivalent to the position limits 
pursuant to Options 4A, Section 10. Each member or member organization 
that maintains a position on the same side of the market in excess of 
100,000 contracts for its own account or for the account of a customer 
in NDXESG options must file a report with the Exchange pursuant to 
proposed Phlx Options 4A, Section 6(c).\19\ The Exchange also proposes 
to make a technical correction to Phlx Options 4A, Section 6(c) to add 
an ``or'' within that paragraph.
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    \19\ The report would include, but would not be limited to, data 
related to the option positions, whether such positions are hedged 
and if applicable, a description of the hedge and information 
concerning collateral used to carry the positions. Market Makers are 
exempt from this reporting requirement. See proposed Phlx Options 
4A, Section 6(c).
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    Likewise, the position and exercise limits for FLEX options on the 
Nasdaq-100 ESG Index would be 25,000 contracts on the same side of the 
market. In amending Phlx Options 8, Section 34(e), regarding position 
limits for FLEX options, the Exchange proposes to align the position 
limits for FLEX options within Phlx Options 8, Section 34, with the 
position limits for standard options within Phlx Options 4A, Section 6, 
which are specifically related to index options. Today, FLEX index 
options are subject to the same position limits governing standard 
index options as provided for within Options 4A, Section 6, unless 
otherwise noted within Options 8, Section 34. At this time, Phlx 
proposes to amend Options 8, Section 34(e) to add a sentence that 
provides that the position limits are the same for FLEX index options 
as with standard index options, unless otherwise noted. This amendment 
is intended to be non-substantive and would not change any position 
limits. Rather, the amendment would simply cross-reference the position 
limits in Options 4A, Section 6 as opposed to restating each position 
limit.\20\ Today, the position limits for standard index options are 
identical to the FLEX index options on the same index. With this 
proposal those position limits would continue to be identical.
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    \20\ In light of this proposal, the Exchange proposes to remove 
the remainder of the rule text related to index options within 
Options 8, Section 34(e).
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Trading Hours
    NDXESG options will be available for trading during the Exchange's 
standard trading hours for index options, i.e., from 9:30 a.m. to 4:15 
p.m. New York time.\21\
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    \21\ See proposed Phlx Supplementary .01 to Options 4A, Section 
12.
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Margin and Sales Practice
    The margin requirements for NDXESG options would be subject to Phlx 
Options 6C, Section 3, Proper and Adequate Margin. Phlx General 9, 
Section 10, Recommendations to Customers (Suitability), and Phlx 
Options 10, Section 8, Suitability, would also apply to NDXESG options.
Surveillance and Capacity
    Finally, the Exchange represents that it has sufficient capacity to 
handle additional quotations and message traffic associated with the 
proposed listing and trading of NDXESG options. Further, the Exchange 
has analyzed its capacity and represents that it believes the Exchange 
and the Options Price Reporting Authority (``OPRA'') have the necessary 
systems capacity to handle any additional traffic associated with the 
listing of NDXESG options.
    Index options are integrated into the Exchange's existing 
surveillance system architecture and are thus subject to the relevant 
surveillance processes. The Exchange represents that it has adequate 
surveillance procedures to monitor trading in NDXESG options thereby 
aiding in the maintenance of a fair and orderly market.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\22\ in general, and furthers the objectives of Section 
6(b)(5) of the Act,\23\ 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, or to regulate by virtue of any authority 
conferred by the Act matters not related to the purposes of the Act or 
the administration of the Exchange. The Exchange believes that the 
proposed rule change is also consistent with Section 6(b)(8) of the Act 
\24\ in that it does not impose any burden on competition not necessary 
or appropriate in furtherance of the purposes of the Act. Specifically, 
the Exchange believes that the introduction of NDXESG options will 
attract order flow to the Exchange, increase the variety of listed 
options to investors, and provide a valuable hedge tool to investors.
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    \22\ 15 U.S.C. 78f(b)
    \23\ 15 U.S.C. 78f(b)(5).
    \24\ 15 U.S.C. 78(f)(b)(8).
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    In particular, the Exchange believes that the proposal to list and 
trade options on the Nasdaq-100 ESG Index will remove impediments to 
and perfect the mechanism of a free and open market and a national 
market system, because the Exchange believes that the proposed rule 
change will further the Exchange's goal of introducing new and 
innovative products to the marketplace. Additionally, the Exchange 
believes that the proposed rule change will remove impediments to and 
perfect the mechanism of a free and open market and a national market 
system, as the

[[Page 20585]]

Exchange believes there is unmet market demand for exchange-listed 
security options listed on this new ESG index. NDXESG options are 
designed to provide different and additional opportunities for 
investors who have a desire to invest in companies that meet certain 
environmental, social and governance criteria to hedge on the market 
risk associated with this index by listing an option directly on this 
index. Further, the Exchange believes that this new product will 
provide market participant with an additional investment opportunity.
    The Exchange believes that the introduction of the Nasdaq-100 ESG 
Index will likely result in market participants' investment and hedging 
strategies consisting of options over both the Nasdaq-100 ESG Index and 
NDX. The Exchange notes that the Nasdaq-100 ESG Index consists of 
companies within NDX that meet specific ESG criteria. Because of this 
relationship between the Nasdaq-100 ESG Index and NDX, the Exchange 
believes the proposed rule change will benefit investors, as it will 
provide market participants with additional investment and hedging 
strategies consisting of options over each of these indexes.
    The Exchange believes the proposed rule change will remove 
impediments to and perfect the mechanism of a free and open market and 
a national market system, as well as protect investors and the public 
interest, because the proposed rule change is consistent with current 
rules already applicable to the listing and trading of options on Phlx, 
which were previously filed with and approved as consistent with the 
Act by the Commission. Particularly, the NDXESG options satisfy the 
initial listing standards for a broad-based index in Phlx's rules, 
which the Commission previously deemed consistent with the Act.\25\
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    \25\ See Securities Exchange Act Release No. 54158 (July 17, 
2006), 71 FR 41853 (July 24, 2006) (SR-Phlx-2006-17) (Notice of 
Filing and Order Granting Accelerated Approval of a Proposed Rule 
Change and Amendment Nos. 1 and 2 Thereto Relating to Listing 
Standards for Broad-Based Index Options).
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    With this proposal NDXESG options would be permitted to list up to 
twelve near-term expiration months and LEAPS. The Exchange believes 
that its proposal is consistent with the Act and promotes just and 
equitable principles of trade because the listings of these options is 
consistent with existing rules for certain index options, including 
options on NDX which may list up to twelve near-term expiration months 
pursuant to Phlx Options 4A, Section 12(a)(4), as well as LEAPs 
pursuant to Options 4A, Section 12(b)(2). As noted herein, the Nasdaq-
100 ESG Index consists of components that are also included in NDX, as 
discussed above. Because of the relationship between the Nasdaq-100 ESG 
Index and NDX, the Exchange believes it is appropriate to permit the 
same number of monthly expirations for the Nasdaq-100 ESG Index and 
NDX. Further, the Exchange's proposal for strike price intervals to be 
at no less than $2.50 intervals is consistent with the Act and promotes 
just and equitable principles of trade because the proposed strike 
prices align with NDX options strike price intervals.\26\
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    \26\ See Phlx Options 4A, Section 12(a)(2).
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    The NDXESG options will be a.m.-settled \27\ and cash-settled 
contracts with European-style exercise.\28\ The Exchange believes that 
it is consistent with the Act for NDXESG options to be a.m.-settled as 
this is consistent with the generic listing criteria for broad-based 
indexes,\29\ and thus it is common for index options to be a.m.-
settled. Additionally, standard third-Friday NDX options are a.m.-
settled. Further, the Exchange believes that it is consistent with the 
Act for NDXESG options to be European-style as standard third-Friday 
NDX options have European-style exercises. Further, European-style 
exercise is consistent with many index options, as set forth in Options 
4A, Section 12(a)(5) including NDX options. Because of the relationship 
between the Nasdaq-100 ESG Index and the NDX, which will likely result 
in market participants' investment and hedging strategies consisting of 
options over both, the Exchange believes it is appropriate to list the 
NDXESG options with the same settlement and exercise style as the other 
NDX options. Additionally, the Reporting Authority shall be the same 
for NDXESG as it is for NDX.
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    \27\ See proposed Phlx Options 4A, Section 12(e)(II).
    \28\ See proposed Phlx Options 4A, Section 12(a)(5).
    \29\ See Phlx Options 4A, Section 3(d).
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    The Exchange's proposal to utilize $0.05 for options trading below 
$3.00 and $0.10 for all other options for the minimum trading increment 
for NDXESG options is consistent with the Act as this is consistent 
with the minimum trading increments for a majority of index options 
including NDX options.
    Setting position and exercise limits for options on the Nasdaq-100 
ESG Index at 25,000 contracts on the same side of the market for both 
standard and FLEX options will promote just and equitable principles of 
trade and protect investors and the public interest because these 
position limits should serve to reduce potential manipulative schemes 
and adverse market impacts surrounding the use of options, such as 
disrupting the market in the security underlying the options.
    The amendments to Phlx Options 8, Section 34(e) to include a cross-
cite to the standard options within Phlx Options 4A, Section 6 is 
consistent with the Act because this amendment will reflect that the 
position limits for standard index options are identical to the FLEX 
index options on the same index. This amendment is non-substantive.
    Proposing standard trading hours for NDXESG options is consistent 
with the Act and serves to remove impediments to and perfects the 
mechanism of a free and open market because these trading hours align 
with trading hours in other index options including NDX options.
    Subjecting NDXESG options to the same margin and suitability rules 
that apply to other index options serves to remove impediments to and 
perfects the mechanism of a free and open market.
    Finally, the Exchange represents that it has the necessary systems 
capacity to support the new option series given these proposed 
specifications. The Exchange believes that its existing surveillance 
and reporting safeguards are designed to deter and detect possible 
manipulative behavior which might arise from listing and trading 
options on the Nasdaq-100 ESG Index. The Exchange further notes that 
current Exchange rules that apply to the trading of other index options 
traded on the Exchange, such as options on the NDX, would also apply to 
the trading of options on the Nasdaq-100 ESG Index, such as, for 
example, Exchange Rules governing customer accounts, margin 
requirements and trading halt procedures.
    Finally, this proposal is not novel as Cboe Exchange, Inc. 
(``Cboe'') lists options on the S&P 500 ESG Index.

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

    This proposed rule change does not impose any burden on intra-
market competition that is not necessary or appropriate in furtherance 
of the purposes of the Act. Any member or member organization may 
transact NDXESG options. Further, the Nasdaq-100 ESG Index satisfies 
initial listing standards set forth in the rules, and the proposed 
number of expirations, settlement, and exercise style are consistent 
with current rules applicable to index options, including standard

[[Page 20586]]

third-Friday NDX options. Because of the relationship between the 
Nasdaq-100 ESG Index and the NDX, which will likely result in market 
participants' investment and hedging strategies consisting of options 
over each of these indexes, the Exchange believes it is appropriate to 
have the same number of expirations, settlement, and exercise style for 
options on each index. The NDXESG options will provide investors with 
different and additional opportunities to hedge or speculate on the 
market associated with this index.
    This proposed rule change does not impose any burden on inter-
market competition that is not necessary or appropriate in furtherance 
of the purposes of the Act because this proposal will facilitate the 
listing and trading of a new option product that will enhance 
competition among market participants, to the benefit of investors and 
the marketplace. Today, Cboe lists options on the S&P 500 ESG Index. 
Also, other options exchanges may develop similar products.

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

    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 Exchange consents, the Commission shall: (a) by order approve 
or disapprove such 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 (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-Phlx-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-Phlx-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 (https://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-2023-09 and should be 
submitted on or before April 27, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\30\
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    \30\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-07141 Filed 4-5-23; 8:45 am]
BILLING CODE 8011-01-P


