[Federal Register Volume 87, Number 220 (Wednesday, November 16, 2022)]
[Notices]
[Pages 68777-68779]
[FR Doc No: 2022-24891]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-96286; File No. SR-Phlx-2022-45]

Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Extend the
Expiration Date of the Temporary Amendments Concerning Video Conference
Hearings

November 9, 2022.
    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 October 28, 2022, 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 Exchange has designated
the proposed rule change as constituting a ``non-controversial'' rule
change under paragraph (f)(6) of Rule 19b-4 under the Act,\3\ which
renders the proposal effective upon receipt of this filing by the
Commission. 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.
    \3\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to extend the expiration date of the
temporary amendments in SR-Phlx-2020-53 from October 31, 2022, to
January 31, 2023.\4\ The proposed rule change would not make any
changes to the text of the Exchange rules.
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    \4\ If the Exchange seeks to provide additional temporary relief
from the rule requirements identified in this proposed rule change
beyond January 31, 2023, the Exchange will submit a separate rule
filing to further extend the temporary extension of time. The
amended Exchange rules will revert to their original form at the
conclusion of the temporary relief period and any extension thereof.
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    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.

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 continue to harmonize Exchange Rule
General 3, Section 16 with recent changes by the Financial Industry
Regulatory Authority, Inc. (``FINRA'') to its Rule 1015 in response to
the COVID-19 global health crisis and the corresponding need to
restrict in-person activities.\5\ The Exchange originally filed
proposed rule change SR-Phlx-2020-53, which allows the Exchange Review
Council (``ERC'') to conduct hearings in connection with appeals of
Membership Application Program decisions, on a temporary basis, by
video conference, if warranted by the current COVID-19-related public
health risks posed by an in-person hearing. In July 2022, the Exchange
filed a proposed rule change, SR-Phlx-2022-32, to extend the expiration
date of the temporary amendments in SR-Phlx-2020-53 from July 31, 2022,
to October 31, 2022.\6\ Although there has been a downward trend in the
number of COVID-19 cases since July 2022, the Exchange believes there
is a continued need for temporary relief beyond October 31, 2022. In
this regard, the Exchange notes that COVID-19 still remains a public
health concern. For example, according to the Centers for Disease
Control and Prevention (``CDC''), the 7-day moving average of new
deaths from COVID-19 in the United States during September 2022 ranged
from approximately 300 to 500 deaths per day,\7\ and approximately 19
percent of counties in the United States have a medium or high COVID-19
Community Level based on the CDC's most recent calculations.\8\ 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
\9\ and the dissimilar vaccination rates (completed primary series and
a first booster dose) throughout the United States.
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    \5\ See Securities Exchange Act Release No. 96107 (October 19,
2022), 87 FR 64526 (October 25, 2022) (Notice of Filing and
Immediate Effectiveness of File No. SR-FINRA-2022-029). (``FINRA
Filing''). The Exchange notes that the FINRA Filing also proposed to
temporarily amend FINRA Rules 9261, 9524, and 9830, which govern
hearings in connection with appeals of disciplinary actions,
eligibility proceedings, and temporary and permanent cease and
desist orders. The Exchange's Rules 9261, 9524, and 9830 incorporate
by reference The Nasdaq Stock Market LLC rules, which are the
subject of a separate filing. See SR-NASDAQ-2022-059. Therefore, the
Exchange is not proposing to adopt that aspect of the FINRA Filing.
    \6\ See Securities Exchange Act Release No. 95435 (August 5,
2022), 87 FR 49635 (August 11, 2022) (Notice of Filing and Immediate
Effectiveness of File No. SR-Phlx-2022-32); see also Securities
Exchange Act Release No. 94611 (April 5, 2022), 87 FR 21230 (April
11, 2022) (Notice of Filing and Immediate Effectiveness of File No.
SR-Phlx-2022-15); Securities Exchange Act Release No. 93853
(December 22, 2021), 86 FR 74164 (December 29, 2021) (Notice of
Filing and Immediate Effectiveness of File No. SR-Phlx-2021-75);
Securities Exchange Act Release No. 92906 (September 9, 2021), 86 FR
51404 (September 15, 2021) (Notice of Filing and Immediate
Effectiveness of File No. SR-Phlx-2021-49); Securities Exchange Act
Release No. 91766 (May 4, 2021), 86 FR 25014 (May 10, 2021) (Notice
of Filing and Immediate Effectiveness of File No. SR-Phlx-2021-27);
Securities Exchange Act Release No. 90758 (December 21, 2020), 85 FR
85782 (December 29, 2020) (Notice of Filing and Immediate
Effectiveness of File No. SR-Phlx-2020-053).
    \7\ See CDC, COVID Data Tracker--Trends in Number of COVID-19
Cases and Deaths in the US Reported to CDC, by State/Territory,
https://covid.cdc.gov/covid-data-tracker/#trends_dailydeaths_select_00 (last visited Oct. 24, 2022).
    \8\ 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 Oct. 24,
2022).
    \9\ These new Omicron variants include BA.4.6, BF.7, and
BA.2.75. See CDC, COVID Data Tracker--Variant Proportions, https://covid.cdc.gov/covid-data-tracker/#variant-proportions (last visited
Oct. 24, 2022).
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    As set forth in SR-Phlx-2020-53, the Exchange also relies on COVID-
19 data and criteria to determine whether the current public health
risks presented by an in-person hearing may warrant a hearing by video
conference. Based on that data and criteria, the Exchange believes that
there will be a continued need for this temporary relief beyond October
31, 2022. Accordingly, the Exchange proposes to extend the expiration
date of the temporary rule amendments originally set forth in SR-Phlx-
2020-53 from October 31, 2022, to January 31, 2023. The extension of
the temporary amendments allowing for specified ERC hearings to proceed
by video conference will allow the Exchange's critical adjudicatory
functions to continue to operate effectively in these extraordinary
circumstances--enabling the Exchange to fulfill its statutory
obligations to protect investors and maintain fair and

orderly markets--while also protecting the health and safety of hearing
participants.
    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 Exchange believes that its proposal is consistent with Section
6(b) of the Act,\10\ in general, and furthers the objectives of Section
6(b)(5) of the Act,\11\ in particular, in that it is 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, by providing greater harmonization between the Exchange rules
and FINRA rules of similar purpose,\12\ resulting in less burdensome
and more efficient regulatory compliance.
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    \10\ 15 U.S.C. 78f(b).
    \11\ 15 U.S.C. 78f(b)(5).
    \12\ See supra note 5.
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    The proposed rule change, which extends the expiration date of the
temporary amendments to the Exchange rules set forth in SR-Phlx-2020-
53, will continue to aid the Exchange's efforts to timely conduct
hearings in connection with its core adjudicatory functions. 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
ERC hearings to proceed by video conference, the Exchange might be
required to postpone some or almost all hearings for a significant
period of time. The Exchange must be able to perform its critical
adjudicatory functions to fulfill its statutory obligations to protect
investors and maintain fair and orderly markets. As such, this relief
is essential to the Exchange's ability to fulfill its statutory
obligations and allows hearing participants to avoid the serious COVID-
19-related health and safety risks associated with in-person hearings.
    Among other things, this relief will allow the ERC to timely
provide members, disqualified individuals and other applicants an
approval or denial of their applications. As set forth in detail in SR-
Phlx-2020-53, this temporary relief allowing ERC hearings to proceed by
video conference accounts for fair process considerations and will
continue to provide fair process while avoiding the COVID-19-related
public health risks for hearing participants. 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 temporary proposed rule
change will impose any burden on competition not necessary or
appropriate in furtherance of the purposes of the Act. As set forth in
SR-Phlx-2020-53, the proposed rule change is intended solely to extend
temporary relief necessitated by the continued presence 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 its 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 October 31, 2022.

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 which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A)(iii) of the Act \13\ and
subparagraph (f)(6) of Rule 19b-4 thereunder.\14\
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    \13\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \14\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires a self-regulatory organization to give the Commission
written notice of its intent to file 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 under Rule 19b-4(f)(6) \15\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\16\ 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 believes the COVID-19 related health concerns
necessitating this relief will continue beyond October 31, 2022.\17\
Importantly, extending the temporary relief provided in SR-Phlx-2020-53
immediately upon filing and without a 30-day operative delay will allow
the Exchange to continue critical adjudicatory and review processes in
a reasonable and fair manner and meet its critical investor protection
goals, while also following best practices with respect to the health
and safety of hearing participants.\18\ The Commission also notes that
this proposal extends without change the temporary relief previously
provided by SR-Phlx-2020-53.\19\ As proposed, the temporary changes
would be in place through January 31, 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.\20\ 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 operative delay and designates the proposal operative upon
filing.\21\
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    \15\ 17 CFR 240.19b-4(f)(6).
    \16\ 17 CFR 240.19b-4(f)(6)(iii).
    \17\ See supra Item II.
    \18\ See 87 FR 64526, at 64528-29 (noting the same in granting
FINRA's request to waive the 30-day operative delay so that SR-
FINRA-2022-029 would become operative immediately upon filing).
    \19\ See supra note 6.
    \20\ See supra note 4. As noted above, the Exchange states that
if it requires temporary relief from the rule requirements
identified in this proposal beyond January 31, 2023, it may submit a
separate rule filing to extend the effectiveness of the temporary
relief under these rules.
    \21\ 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 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 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 [email protected]. Please include
File Number SR-Phlx-2022-45 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-2022-45. 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; the Commission does not edit
personal identifying information from submissions. You should submit
only information that you wish to make available publicly.
    All submissions should refer to File Number SR-Phlx-2022-45 and
should be submitted on or before December 7, 2022.
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    \22\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\22\
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2022-24891 Filed 11-15-22; 8:45 am]
BILLING CODE 8011-01-P