[Federal Register Volume 85, Number 238 (Thursday, December 10, 2020)]
[Notices]
[Pages 79552-79555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27090]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90573; File No. SR-Phlx-2020-41]


Self-Regulatory Organizations; Nasdaq PHLX LLC; Order Instituting 
Proceedings To Determine Whether To Approve or Disapprove a Proposed 
Rule Change To List and Trade Options on a Nasdaq-100 Volatility Index

December 4, 2020.

I. Introduction

    On August 24, 2020, Nasdaq PHLX LLC (``Exchange'' or ``Phlx'') 
filed with the Securities and Exchange Commission (``Commission''), 
pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to 
list and trade options on a Nasdaq-100 Volatility Index (``VOLQ'' or 
``Volatility Index''). The proposed rule change was published for 
comment in the Federal Register on September 8, 2020.\3\ On October 20, 
2020, pursuant to Section 19(b)(2) of the Act,\4\ the Commission 
designated a longer period within which to approve the proposed rule 
change, disapprove the proposed rule change, or institute proceedings 
to determine whether to disapprove the proposed rule change.\5\ This 
order institutes proceedings under Section 19(b)(2)(B) of the Act \6\ 
to determine whether to approve or disapprove the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 89725 (September 1, 
2020), 85 FR 55544 (``Notice''). Comment received on the Notice is 
available on the Commission's website at: https://www.sec.gov/comments/sr-phlx-2020-41/srphlx202041.htm.
    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release No. 90226, 85 FR 67781 
(October 26, 2020). The Commission designated December 7, 2020 as 
the date by which the Commission shall approve or disapprove, or 
institute proceedings to determine whether to disapprove, the 
proposed rule change.
    \6\ 15 U.S.C. 78s(b)(2)(B).
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II. Description of and Comment on the Proposed Rule Change

A. Description of the Proposal

    The Exchange proposes to list and trade options on VOLQ, a new 
index that measures changes in 30-day implied volatility of the Nasdaq-
100 Index (``Nasdaq-100 Index'' or ``NDX''). As proposed, options on 
the VOLQ will be cash-settled and will have European-style exercise 
provisions. The Exchange states that the Volatility Index will measure 
``at-the-money'' volatility. The Volatility Index, calculated using

[[Page 79553]]

published real-time bid/ask quotes of NDX options, represents 30-day 
implied volatility and will be disseminated in annualized percentage 
points.\7\
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    \7\ The Exchange proposes to amend Phlx Options 4A, Section 12, 
``Terms of Option Contracts,'' at subparagraphs (b)(2), (b)(6) and 
(e) as well as Supplementary Material .01 to Options 4A, Section 12. 
The Exchange also proposes to amend Phlx Options 3. Section 3, 
``Minimum Increments'' and Options 4A, Section 6, ``Position 
Limits.''
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    The Exchange proposes to list up to six weekly expirations and up 
to 12 standard (monthly) expirations in Volatility Index options. The 
six weekly expirations will be for the nearest weekly expirations from 
the actual listing date, and the weekly expirations will not expire in 
the same week in which standard (monthly) Volatility Index options 
expire. Standard (monthly) expirations in the Volatility Index options 
will not be counted as part of the maximum six weekly expirations 
permitted for Volatility Index options.\8\ In addition, the Exchange 
proposes that long term option series having up to sixty months to 
expiration may be listed and traded.\9\
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    \8\ See Phlx Options 4A, Section 12, Terms of Option Contracts, 
proposed new section (b)(viii)(A).
    \9\ Phlx Options 4A, Section 12(b)(2), as proposed to be 
amended. Phlx Rule Options 4A, Section 12(b)(2) currently applies 
only to stock index options and would be amended to permit listing 
of long term Volatility Index options.
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Volatility Index Design and Composition \10\
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    \10\ For the Exchange's complete description of the proposal, 
including more information about the Volatility Index calculation 
methodology, see Notice, supra note 3.
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    The Exchange states that the Volatility Index \11\ reflects changes 
in 30-day implied volatility, which measures the magnitude of changes 
of the underlying broad-based securities index, NDX. The Exchange 
further states that NDX includes 100 of the largest \12\ domestic and 
international non-financial companies listed on The Nasdaq Stock Market 
LLC based on market capitalization. According to the Exchange, the 
Volatility Index, which the Exchange considers a broad-based securities 
index pursuant to Phlx Options 4A, Section 2(a)(13),\13\ measures the 
expectation for market volatility over the next thirty calendar days as 
expressed by options on NDX. The Exchange explains that the Volatility 
Index uses the bid and offer prices of certain listed options on NDX 
\14\ to obtain the prices of synthetic precisely at-the-money (``ATM'') 
options, which are then used to calculate 30-day closed-form implied 
volatility. Finally, the 30-day closed-form implied volatility is 
multiplied by 100 to calculate the Volatility Index level. The 
Volatility Index is quoted in annualized percentage points. For 
example, an Index level of 17.90 represents an annualized implied 
volatility of 17.90%.
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    \11\ The calculation of the Volatility Index is based on the 
methodology developed by NShares LLC.
    \12\ The Exchange reports that as of June 30, 2020, there were 
78 components in the bottom 25% of Nasdaq-100 Index weight. From 
January 1 through June 30, 2020, these components had an Average 
Daily Dollar Trading Volume of $29.7 billion. The Average Daily 
Dollar Trading Volume of the least active component was $41.1 
million. The aggregate market capitalization of the 78 components 
was $2.60 trillion. The Exchange states that the Nasdaq-100 Index 
reflects companies across major industry groups including computer 
hardware and software, telecommunications, retail/wholesale trade, 
and biotechnology. It does not contain securities of financial 
companies including investment companies.
    \13\ Phlx Options 4A, Section 2(a)(13) define a ``market index'' 
and ``broad-based index'' to mean an index designed to be 
representative of a stock market as a whole or of a range of 
companies in unrelated industries. The Exchange states that, like 
the Cboe Volatility Index (``VIX''), VOLQ is an implied volatility 
index and not a realized volatility index.
    \14\ For any calculation of synthetic precisely ATM option 
prices, a total of thirty-two component options are used, comprising 
four calls and four puts from each of four consecutive weeks.
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    The Exchange believes that the proposed product does not have 
single or aggregated component concentration risk. The Exchange states 
that the methodology caps each single component as well as the top five 
weighted components. The Exchange further states that no component 
security of the Volatility Index comprises more than 12.50% of the 
index's weighting and that the five weighted component securities of 
the Volatility Index in the aggregate do not comprise more than 43.75% 
of the index's weighting.
Index Calculation and Maintenance
    The Exchange states that the level of the Volatility Index will 
reflect the current 30-day implied volatility of NDX. The Volatility 
Index will be updated on a real-time basis on each trading day 
beginning at 9:30 a.m. and ending at 4:15 p.m. (New York time). If the 
current published value of a component is not available, the last 
published value will be used in the calculation. Values of the 
Volatility Index will be disseminated via the Nasdaq GIDS market data 
system every fifteen seconds during the Exchange's regular trading 
hours to market information vendors such as Bloomberg and Thomson 
Reuters. In the event the Volatility Index ceases to be maintained or 
calculated the Exchange will not list any additional series for trading 
and will limit all transactions in such options to closing transactions 
only for the purpose of maintaining a fair and orderly market and 
protecting investors.
Exercise and Settlement Value
    The exercise settlement value calculation used for Volatility Index 
option settlement will be calculated on the same day as the Volatility 
Index Options expiration date. The exercise settlement value of a 
Volatility Index option will be calculated on the specific date 
(usually a Wednesday) identified in the option symbol for the series. 
If that Wednesday or the Friday that is thirty days following that 
Wednesday is an Exchange holiday, the exercise settlement value will be 
calculated on the business day immediately preceding that Wednesday. 
The last trading day for a Volatility Index option will be the business 
day immediately preceding the expiration date of the Volatility Index 
option. When the last trading day is moved because of an Exchange 
holiday, the last trading day for an expiring Volatility Index option 
contract will be the day immediately preceding the last regularly 
scheduled business day.\15\
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    \15\ See Phlx Options 4A, Section 12, ``Terms of Option 
Contracts,'' proposed new section (b)(6)(B) and (C).
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    Monthly options on the Volatility Index will expire on the 
Wednesday that is thirty days prior to the third Friday of the calendar 
month immediately following the expiring month. Trading in expiring 
options on the Volatility Index will normally cease at 4:15 p.m. (New 
York time) on the Tuesday preceding an expiration Wednesday.
Final Settlement \16\
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    \16\ For a full description of the final settlement process, see 
Notice supra note 3.
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    The Exchange states that the final settlement price (Ticker Symbol: 
VOLS) will be calculated as described below on Wednesday commencing at 
9:32:000 a.m. (New York time) on the expiration day, and continuing 
each second for the next 300 seconds (``Closing Settlement Period''). 
The exercise settlement amount will be equal to the difference between 
the final settlement price and the exercise price of the option, 
multiplied by $100. Exercise will result in the delivery of cash on the 
business day following expiration.
    The Volatility Index's component NDX options are listed on Phlx as 
well as on the Exchange's affiliates, Nasdaq ISE, LLC (``ISE'') and 
Nasdaq GEMX, LLC (``GEMX''). The settlement value for the Volatility 
Index options (VOLS) will be the Closing Volume Weighted Average Price 
(``Closing VWAP''), to be determined by reference to the prices and 
sizes of executed transactions or

[[Page 79554]]

quotes in the thirty-two underlying NDX component options \17\ on the 
Exchange calculated at the opening of trading on the expiration date. 
As part of the Exchange's calculation of the Closing VWAP, the Exchange 
will observe the number of contracts of the then-current NDX component 
options traded on Phlx at each price during individual one-second 
intervals of the Closing Settlement Period on the expiration day.\18\ 
If no transactions occur on Phlx in a NDX component option during any 
one-second observation period, the NBBO midpoint of each of the NDX 
component options for which a transaction has not occurred \19\ at the 
end of the one second observation period will be considered the One 
Second VWAP for that observation period for purposes of the settlement 
methodology. The NBBO midpoint will be the midpoint of the best bid and 
best offer from Phlx, ISE, and GEMX.\20\ Each One Second VWAP for each 
component option is then used to calculate the Volatility Index, 
resulting in the calculation of 300 sequential Volatility Index values. 
Finally, all 300 Volatility Index values will be arithmetically 
averaged (i.e., the sum of 300 Volatility Index calculations is divided 
by 300) and the resulting figure is rounded to the nearest .01 to 
arrive at the settlement value.
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    \17\ The Exchange states that, dependent upon movement in the 
Nasdaq-100 Index, the thirty-two underlying NDX component options 
can change every second.
    \18\ The Exchange calculates a volume weighted average price for 
each one-second observation period (a ``One Second VWAP'') for each 
component option.
    \19\ The Volatility Index's component NDX options are listed on 
Phlx as well as on the Exchange's affiliates, ISE and GEMX. The 
Exchange reports that NDX average bid/ask spreads for all component 
options at each second for each of four expiration dates (11/21/
2018, 12/19/2018, 1/16/2019, and 2/13/2019) commencing at 9:30:15 
a.m. is 5.52%. Commencing at 9:32.010 a.m. the NDX average bid/ask 
spreads for all component options at each second for each of four 
expiration dates is 3.72%. The Exchange believes that this 
demonstrates quote stability at 2 minutes after the opening.
    \20\ By considering the NBBO of all three markets, the Exchange 
believes the risk of manipulation is tempered by the consideration 
of a larger number of quotes from multiple Market Makers.
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    The Exchange believes that the Volatility Index final settlement 
has exceedingly high hurdles for potential manipulation. First, the 
Exchange believes that market participants cannot predict which 
components will be included in the final settlement. Second, the 
Exchange believes that traders are subject to highly competitive market 
forces of deep and established market liquidity. For example, the 
Exchange notes that during each second of the final settlement 
observation period on January 16, 2019 and February 13, 2019, the 
average notional value of each bid of the thirty-two components was 
$21.1 million; the average notional value of each offer was $13.5 
million. Third, the Exchange states that since the Volatility Index 
assesses each second of all listed NDX options, this is a continuous 
assessment of competitive price action and voluminous trading activity 
for all Nasdaq-100 Index stock components. In support, the Exchange 
notes that during the final settlement observation period (five-minute 
period) on January 16, 2019 and February 13, 2019, the average 
summation of traded volume for all Nasdaq-100 Index component shares 
was 18.8 million shares. The average total value of all Nasdaq-100 
Index shares traded during the final settlement observation period was 
$1.93 billion. The corresponding market capitalization for all Nasdaq-
100 Index components during the final settlement period was $7.8 
trillion.
Contract Specifications
    The proposed Options on the Volatility Index are European-style and 
cash-settled. The Exchange's standard trading hours for broad-based 
index options (9:30 a.m. to 4:15 p.m., New York time) will apply to the 
Volatility Index options under Phlx Options 4A, Section 12 at 
Supplementary Material .01, as proposed to be amended. The Exchange 
proposes to apply margin requirements for the purchase and sale of 
options on the Volatility Index that are identical to those applied for 
its other broad-based index options.
    The trading of options on the Volatility Index will be subject to 
the trading halt procedures applicable to other index options traded on 
the Exchange.\21\ Options on the Index will be quoted and traded in 
U.S. dollars.\22\ Accordingly, the Exchange believes that all Exchange 
and The Options Clearing Corporation members will be able to 
accommodate trading, clearance and settlement of the Volatility Index 
without alteration. All options on the index will have a minimum 
increment of $0.05 for options trading below $3.00 and $0.10 for all 
other series.
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    \21\ Phlx Options 4A, Section 18(c), ``Trading Rotations, Halts 
or Reopenings.''
    \22\ Phlx Options 4A, Section 12(a)(1) titled ``Meaning of 
Premium Bids and Offers,'' provides that bids and offers shall be 
expressed in terms of dollars and decimal equivalents of dollars per 
unit of the index (e.g., a bid of 85.50 would represent a bid of 
$85.50 per unit).
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    The Exchange proposes to set the minimum strike price interval for 
options on the Volatility Index at $0.50 or greater where the strike 
price is less than $75, $1 or greater where the strike price is $200 or 
less and $5 or greater where the strike price is more than $200.\23\ 
The Exchange proposes that there shall be no position or exercise 
limits for options on the Volatility Index.
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    \23\ Phlx Options 4A, Section 12 ``Terms of Option Contracts,'' 
proposed new section (b)(6)(E).
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    The trading of options on the Volatility Index will be subject to 
the same rules that presently govern the trading of Exchange index 
options, including sales practice rules, margin requirements, and 
trading rules.\24\
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    \24\ The Exchange states that Phlx Options 10, Section 6, which 
is designed to protect public customer trading, will apply to 
trading in options on the Volatility Index. Specifically, the rule 
prohibits members and member organizations from accepting a customer 
order to purchase or write an option, including options on the 
Volatility Index, unless such customer's account has been approved 
in writing by an Options Principal. Additionally, Phlx Options 10, 
Section 8, ``Suitability,'' is designed to ensure that options, 
including options on the Volatility Index, are only sold to 
customers capable of evaluating and bearing the risks associated 
with trading in this instrument. Further, Phlx Options 10, Section 
9, ``Discretionary Accounts,'' permits members and member 
organizations to exercise discretionary power with respect to 
trading options, including options on the Volatility Index, in a 
customer's account only if the customer has given prior written 
authorization and the account has been accepted in writing by a 
Registered Options Principal. Phlx Options 10, Section 9 also 
requires a record to be made of every option transaction for an 
account in respect to which a member or member organization or a 
partner, officer or employee of a member organization is vested with 
any discretionary authority, such record to include the name of the 
customer, the designation, number of contracts and premium of the 
option contracts, the date and time when such transaction took place 
and clearly reflecting the fact that discretionary authority was 
exercised. Finally, Phlx Options 10, Section 7, ``Supervision of 
Accounts,'' Phlx Options 10, Section 10,''Confirmations to 
Customers,'' and Phlx Options 10, Section 13, ``Delivery of Options 
Disclosure Documents,'' will also apply to trading in options on the 
Volatility Index.
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    The Exchange represents that it has an adequate surveillance 
program in place for options traded on the Volatility Index and intends 
to apply those same program procedures that it applies to the 
Exchange's other options products. Additionally, the Exchange states 
that it is a member of the Intermarket Surveillance Group, through 
which it can coordinate surveillance and investigative information 
sharing in the stock and options markets with all of the U.S. 
registered stock and options markets. The Exchange believes that it is 
unlikely that the Volatility Index settlement value could be 
manipulated because the likelihood of gaming the components over a 300 
second period is extremely low. Phlx believes that its surveillance 
procedures currently in place, coupled with additional measures,\25\ 
will allow it to adequately

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surveil for any potential manipulation in the trading of Volatility 
Index options. The Exchange also represents that it has the necessary 
system capacity to support additional quotations and messages that will 
result from the listing and trading of options on the Volatility Index.
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    \25\ See Notice, supra note 3.
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B. Comment on the Proposal

    A commenter, who states it is the provider of the VOLQ methodology, 
expressed support for the proposal. The commenter states that VOLQ is a 
response to requests from market participants and that competition and 
innovation generated by VOLQ are in the public interest and will 
benefit investors.\26\
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    \26\ See letter dated September 16, 2020 from Scott Nations, 
President, Nations Indexes, to Vanessa Countryman, Secretary, 
Commission, available at: https://www.sec.gov/comments/sr-phlx-2020-41/srphlx202041-7783670-223493.pdf.
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III. Proceedings To Determine Whether To Approve or Disapprove SR-Phlx-
2020-41 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Sections 
19(b)(2)(B) of the Act \27\ to determine whether the proposed rule 
change should be approved or disapproved. Institution of proceedings is 
appropriate at this time in view of the legal and policy issues raised 
by the proposed rule change. Institution of proceedings does not 
indicate that the Commission has reached any conclusions with respect 
to any of the issues involved. Rather, as described below, the 
Commission seeks and encourages interested persons to provide 
additional comment on the proposed rule change to inform the 
Commission's analysis of whether to approve or disapprove the proposed 
rule change.
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    \27\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Act,\28\ the Commission is 
providing notice of the grounds for possible disapproval under 
consideration. The Commission is instituting proceedings to allow for 
additional analysis of and input concerning the proposed rule change's 
consistency with the Section 6(b)(5) of the Act, which requires, among 
other things, that the rules of a national securities exchange be 
designed to prevent fraudulent and manipulative acts and practices, 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.\29\
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    \28\ Id.
    \29\ 15 U.S.C. 78f(b)(5).
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IV. Procedure: Request for Written Comments

    The Commission requests that interested persons provide written 
submissions of their views, data, and arguments with respect to the 
issues identified above, as well as any other concerns they may have 
with the proposal. In particular, the Commission invites the written 
views of interested persons concerning whether the proposal is 
consistent with Section 6(b)(5) \30\ of the Act or any other provision 
of the Act, or the rules and regulations thereunder. Although there do 
not appear to be any issues relevant to approval or disapproval that 
would be facilitated by an oral presentation of views, data, and 
arguments, the Commission will consider, pursuant to Rule 19b-4 under 
the Act,\31\ any request for an opportunity to make an oral 
presentation.\32\
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    \30\ 15 U.S.C. 78f(b)(5).
    \31\ 17 CFR 240.19b-4.
    \32\ Section 19(b)(2) of the Act, as amended by the Securities 
Act Amendments of 1975, Pub. L. 94-29 (June 4, 1975), grants the 
Commission flexibility to determine what type of proceeding--either 
oral or notice and opportunity for written comments--is appropriate 
for consideration of a particular proposal by a self-regulatory 
organization. See Securities Act Amendments of 1975, Senate Comm. on 
Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st 
Sess. 30 (1975).
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    Interested persons are invited to submit written data, views, and 
arguments regarding whether the proposed rule change should be approved 
or disapproved by December 31, 2020. Any person who wishes to file a 
rebuttal to any other person's submission must file that rebuttal by 
January 14, 2021. The Commission asks that commenters address the 
sufficiency of the Exchange's statements in support of the proposal, 
which are set forth in the Notice,\33\ in addition to any other 
comments they may wish to submit about the proposed rule change. In 
this regard, the Commission seeks commenters' views regarding whether 
the Exchange's proposal to list and trade options on the Volatility 
Index, a new index that measures changes in 30-day implied volatility 
of the Nasdaq-100 Index, is adequately designed to prevent fraudulent 
and manipulative acts and practices, to promote just and equitable 
principles of trade, and to protect investors and the public interest.
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    \33\ See Notice, supra note 3.
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    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 No. SR-Phlx-2020-41 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 No. SR-Phlx-2020-41. The 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 such 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 publicly available. All submissions 
should refer to File No. SR-Phlx-2020-41 and should be submitted on or 
before December 31, 2020. Rebuttal comments should be submitted by 
January 14, 2021.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\34\
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    \34\ 17 CFR 200.30-3(a)(57).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-27090 Filed 12-9-20; 8:45 am]
BILLING CODE 8011-01-P