[Federal Register Volume 88, Number 177 (Thursday, September 14, 2023)]
[Notices]
[Pages 63173-63176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19847]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98331; File No. 4-809]


Notice of Filing and Request for Comment on ICE Clear Europe 
Limited's Request To Withdraw From Registration as a Clearing Agency

September 8, 2023.

I. Introduction

    Pursuant to section 19(a)(3) of the Securities Exchange Act of 1934 
(``Exchange Act'' or ``Act''),\1\ on August 10, 2023, ICE Clear Europe 
Limited (``ICE Clear Europe'') filed with the Securities and Exchange 
Commission (``Commission'') a written request (the ``Written Request'') 
\2\ to withdraw from registration as a clearing agency under section 
17A of the Exchange Act.\3\ The Commission is publishing this notice to 
solicit comments from interested persons concerning ICE Clear Europe's 
Written Request.
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    \1\ 15 U.S.C. 78s(a)(3).
    \2\ See Letter from Hester Serafini, President, ICEEU, to 
Vanessa Countryman, Secretary, Securities and Exchange Commission 
(dated August 10 2023).
    \3\ 15 U.S.C. 78q-1.

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[[Page 63174]]

II. Description

    The statements in this Item II concerning the background of ICE 
Clear Europe's request for withdrawal from registration as a clearing 
agency and its reasons for making the request have been submitted by 
ICE Clear Europe in its Written Request. ICE Clear Europe is registered 
with the Commission as a clearing agency under section 17A of the 
Exchange Act.\4\ In its Written Request, ICE Clear Europe represents 
that it intends to terminate its credit default swap clearing business 
as of October 27, 2023 and, on that basis, seeks to withdraw its 
registration as a clearing agency pursuant to section 19(a)(3) of the 
Act on that date or as soon thereafter as is practicable.\5\
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    \4\ 15 U.S.C. 78q-1.
    \5\ See 15 U.S.C. 78s(a)(3).
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A. Background

    ICE Clear Europe states in the Written Request that it is a 
clearing agency registered with the Commission that is based in London, 
United Kingdom (``UK'') and incorporated as a private limited company 
under English law.\6\ ICE Clear Europe is an indirect wholly owned 
subsidiary of Intercontinental Exchange, Inc (``ICE''). ICE Clear 
Europe provides clearing and settlement services for two primary 
categories of derivative contracts: (1) exchange-traded futures and 
options contracts traded on the ICE Futures Europe, ICE Futures U.S., 
ICE Endex, and ICE Futures Abu Dhabi markets (the ``F&O Business''); 
and (2) over-the-counter index and single-name credit default swap 
(``CDS'') contracts (the ``CDS Business'').
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    \6\ ``Clearing agency'' is defined in section 3(a)(23)(A) of the 
Act as, in relevant part, ``any person who acts as an intermediary 
in making payments or deliveries or both in connection with 
transactions in securities or who provides facilities for comparison 
of data respecting the terms of settlement of securities 
transactions, to reduce the number of settlements of securities 
transactions, or for the allocation of securities settlement 
responsibilities.'' 15 U.S.C. 78c(a)(23)(A).
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    In addition to its registration as a clearing agency under the Act, 
ICE Clear Europe further states in the Written Request that it is: 
authorized as a recognized clearing house under UK law; \7\ recognized 
as a third-country central counterparty under the European Market 
Infrastructure Regulation; \8\ registered as a derivatives clearing 
organization (``DCO'') under the Commodity Exchange Act; \9\ recognized 
as a foreign central counterparty under the Swiss Financial Market 
Infrastructure Act; \10\ and recognized as a remote clearing house in 
the Abu Dhabi Global Market.\11\
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    \7\ See UK Financial Services and Markets Act of 2000 c. 8, 
available at https://www.legislation.gov.uk/ukpga/2000/8/contents.
    \8\ See Regulation (EU) No 648/2012 of the European Parliament 
and of the Council of 4 July 2012 on OTC derivatives, central 
counterparties and trade repositories.
    \9\ See 7 U.S.C. 7a-1.
    \10\ See Federal Act on Financial Market Infrastructures and 
Market Conduct in Securities and Derivatives Trading of 19 June 
2015.
    \11\ See Abu Dhabi Global Market Financial Services and Markets 
Regulations 2015, available at https://en.adgm.thomsonreuters.com/rulebook/financial-services-and-markets-regulations-2015-0.
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    In addition, on July 23, 2009, the Commission granted ICE Clear 
Europe a temporary conditional exemption from the requirement to 
register as a clearing agency under section 17A of the Act solely to 
perform the functions of a clearing agency for ``Cleared CDS.'' \12\
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    \12\ See Order Granting Temporary Exemptions Under the 
Securities Exchange Act of 1934 in Connection with Request on Behalf 
of Ice Clear Europe Limited Related to Central Clearing of Credit 
Default Swaps, and Request for Comments, Securities Exchange Act 
Release No. 60372 (July, 23, 2009), 74 FR 37748 (July 29, 2009) 
(``Original Registration Exemption''). The Original Registration 
Exemption was extended on November 29, 2010. Order Extending 
Temporary Conditional Exemptions Under The Securities Exchange Act 
of 1934 in Connection with Request on Behalf of Ice Clear Europe, 
Limited Related to Central Clearing of Credit Default Swaps and 
Request for Comment, Securities Exchange Act Release No. 63389 (Nov. 
29, 2010), 75 FR 75520 (Dec. 3, 2010).
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    Section 763(b) of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act of 2010 (``Dodd-Frank Act'') \13\ added section 17A(l) 
to the Exchange Act,\14\ which provides, in relevant part, that a DCO 
registered with the CFTC that is required to register under section 17A 
is deemed to be registered under section 17A solely for the purpose of 
clearing SBS to the extent that, before the date of enactment of 
section 17A(l), the DCO cleared swaps pursuant to an exemption from 
registration as a clearing agency. Pursuant to section 17A(l) of the 
Act,\15\ ICE Clear Europe was deemed registered as a clearing agency 
for the purpose of clearing security-based swaps, specifically single-
name CDS.\16\ Effective July 16, 2011, ICE Clear Europe became a 
registered clearing agency for purposes of clearing single-name 
CDS.\17\ ICE Clear Europe constitutes a ``covered clearing agency'' for 
purposes of Commission Rule 17Ad-22.\18\
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    \13\ The Dodd-Frank Wall Street Reform and Consumer Protection 
Act, Public Law 111-203, 124 Stat. 1376 (2010).
    \14\ 15 U.S.C. 78q-1(1).
    \15\ Section 17A(l) of the Act was added by section 763(b) of 
the Dodd-Frank Wall Street Reform and Consumer Protection Act, 
Public Law 111-203, 124 Stat. 1376 (2010).
    \16\ See Amendment to Rule Filing Requirements for Dually-
Registered Clearing Agencies, Securities Exchange Act Release No. 
69284, 78 FR 21046, 21047 & n.20 (Apr. 9, 2013) (File No. S7-29-11). 
ICE Clear Europe does not clear security-based swaps other than 
single-name CDS.
    \17\ See id.
    \18\ See Definition of ``Covered Clearing Agency,'' Securities 
Exchange Act Release No. 88616, 85 FR 28853, 28855 n.21 (May 14, 
2020) (File No. S7-23-16).
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    Subsequently, in connection with the proposed merger of ICE Clear 
Europe's indirect parent company, Intercontinental Exchange, Inc., and 
NYSE Euronext, ICE Clear Europe requested from the Commission an 
exemption from clearing agency registration under section 17A(b) of the 
Act and Rule 17Ab2-1 thereunder in connection with ICE Clear Europe's 
clearing of certain futures and options contracts on underlying U.S. 
equity securities, which contracts were traded on the LIFFE 
Administration and Management Market (and subsequently have been traded 
on the ICE Futures Europe market), as part of ICE Clear Europe's F&O 
Business.\19\ By order dated June 27, 2013, the Commission granted ICE 
Clear Europe's request (the ``Securities Product Exemption'').\20\ ICE 
Clear Europe states that activity is unrelated to ICE Clear Europe's 
CDS Business.
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    \19\ See Order Pursuant to section 17A of the Securities 
Exchange Act of 1934 Granting Exemption from the Clearing Agency 
Registration Requirement Under section 17A(b) of the Exchange Act 
for ICE Clear Europe Limited in Connection with its Proposal to 
Clear Contracts Traded on the LIFFE Administration and Management 
Market, Exchange Act Release No. 69872 (June 27, 2013), 78 FR 40220 
(July 3, 2013).
    \20\ Id.
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B. Planned Termination of the CDS Business

    As it has publicly announced, ICE Clear Europe has determined to 
cease acting as a clearing agency for all classes of CDS contracts, 
thus terminating its CDS Business in its entirety.\21\ ICE Clear Europe 
Clearing Rules provide a procedure for the termination of clearing 
services in this product category and set out the rights and 
obligations of Clearing Members and ICE Clear Europe in connection with 
the termination, including ICE Clear Europe's obligation to provide 
advance notice of the termination by Circular.\22\
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    \21\ Cessation of Clearing of CDS Contracts, Circular C22/076 
(June 30, 2022), available at https://www.theice.com/publicdocs/clear_europe/circulars/C22076.pdf.
    \22\ See, e.g., ICE Clear Europe Rule 105. Capitalized terms 
used but not defined herein have the meanings specified in the ICE 
Clear Europe Clearing Rules (the ``ICE Clear Europe Rules''). In its 
rules, ICE Clear Europe defines the term ``Circular'' to mean a 
publication issued by ICE Clear Europe for the attention of all 
Clearing Members and posted on ICE Clear Europe's website in 
accordance with ICE Clear Europe's Rule 109(g).
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    By Circular, ICE Clear Europe has designated October 27, 2023 as 
the date on which it will terminate all services

[[Page 63175]]

related to its CDS Business.\23\ This date is defined in ICE Clear 
Europe's Rule 101 as the ``Withdrawal Date.'' \24\ CDS Clearing Members 
are required under ICE Clear Europe's Rules to use reasonable endeavors 
to close out all of their open cleared CDS positions by that date.\25\ 
Furthermore, until the Withdrawal Date, CDS Clearing Members are only 
permitted to submit for clearing new CDS transactions for risk reducing 
purposes.\26\ If a CDS Clearing Member has complied with its 
obligations to close out all of its cleared CDS positions at ICE Clear 
Europe by the Withdrawal Date, the ``Termination Date'' for that 
member's CDS clearing membership under ICE Clear Europe's Rules will 
occur as soon as practicable thereafter.\27\ To the extent any CDS 
Clearing Member has not closed out all of its own cleared CDS positions 
by the Withdrawal Date, ICE Clear Europe has the authority under ICE 
Clear Europe's Rules to terminate and cash settle those contracts \28\ 
and represents in the Written Request that it would expect to do so at 
that time. Following termination of all CDS positions, ICE Clear 
Europe's Rules require ICE Clear Europe to calculate a final settlement 
amount for each CDS Clearing Member reflecting any net amount due to or 
from the CDS Clearing Member.
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    \23\ See ICE Clear Europe, Circular C22/109, Cessations of 
clearing of CDS Contracts: Postponement of Withdrawal Date (dated 
Sep. 26, 2022), available at https://www.theice.com/publicdocs/clear_europe/circulars/C22109.pdf.
    \24\ Under ICE Clear Europe Rule 105(c), the Withdrawal Date, or 
October 27, 2023, will also be the ``Termination Close-Out Deadline 
Date'' and the ``Termination Date'' (i.e., the date on which a CDS 
Clearing Member's membership as such terminates) as those terms are 
defined in ICE Clear Europe Rule 101 and used in ICE Clear Europe 
Rule 918.
    \25\ See ICE Clear Europe Rules 105(c), 209(b), and 918(a)(i). 
As discussed in Circular C22/076, ICE Clear Europe will, upon 
request of a CDS Clearing Member, facilitate the termination and 
reestablishment of positions at another clearing house.
    \26\ See ICE Clear Europe Rules 105(c), 209(b), and 918(a)(iii).
    \27\ The occurrence of the Termination Date for a CDS Clearing 
Member has a number of consequences under the Rules, including that 
the CDS Clearing Member is not responsible for replenishment of the 
CDS Guaranty Fund in respect of Events of Default with respect to 
other CDS Clearing Members occurring after such date. See ICE Clear 
Europe Rule 918(d).
    \28\ See ICE Clear Europe Rule 105(b).
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    ICE Clear Europe states that, as a result of these provisions, 
effective as of the Withdrawal Date, it will cease to clear any CDS 
contracts, no additional CDS contracts will be accepted for clearing, 
and all outstanding CDS transactions will be terminated. Thus, as of 
the Withdrawal Date, ICE Clear Europe's CDS Business will be 
terminated. Both ICE Clear Europe and CDS Clearing Members will be 
obligated to satisfy any respective final settlement amount arising 
from such termination, including with respect to any final fees and 
interest payments (for the October 2023 period). ICE Clear Europe 
represents in the Written Request that the termination of the CDS 
Business will have no effect on the F&O Business, and that Clearing 
Members that are both F&O Clearing Members and CDS Clearing Members 
will continue in their capacities as F&O Clearing Members after the 
Withdrawal Date.

C. Request for Withdrawal of Clearing Agency Registration

    ICE Clear Europe represents in the Written Request that, upon 
termination of the CDS Business on the Withdrawal Date as described 
above, ICE Clear Europe would no longer be engaged in any clearing 
agency activity relating to security-based swaps. As a result, ICE 
Clear Europe would no longer be required to be registered as a clearing 
agency under section 17A of the Act. Accordingly, ICE Clear Europe 
requests withdrawal of its registration as of the Withdrawal Date, or 
as soon as practicable thereafter.
    In support of this request, ICE Clear Europe represents as follows:
    1. ICE Clear Europe has notified its CDS Clearing Members, by 
Circular, that under ICE Clear Europe Rule 105 they are obligated to 
use reasonable endeavors to close out all open positions in CDS 
Contracts by the Withdrawal Date of October 27, 2023.
    2. At end-of-day (18:00 London time) on October 26, 2023, ICE Clear 
Europe will be permanently closed for CDS trade submission. 
Accordingly, effective as of the Withdrawal Date, ICE Clear Europe will 
no longer accept any CDS Contracts for clearing, and all open positions 
in CDS Contracts will have been closed out by the CDS Clearing Members 
holding the positions. To the extent any CDS Clearing Member has not 
completed the closing out of any open CDS positions as of the 
Withdrawal Date, ICE Clear Europe will be entitled and expects, 
pursuant to ICE Clear Europe Rule 105(b), to terminate and cash settle 
such positions. As a result, all liabilities in respect of the close 
out and/or termination of any open positions in CDS Contracts will be 
finally determined by end-of-day (18:00 London time) on the Withdrawal 
Date.\29\
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    \29\ ICE Clear Europe states in its request letter that, if 
there were to be an Event of Default with respect to a CDS Clearing 
Member at or prior to the Withdrawal Date, other CDS Clearing 
Members would remain liable with respect to losses arising 
therefrom, to the extent provided in ICE Clear Europe's Rules, 
through application of their CDS Guaranty Fund Contributions and 
obligations to pay assessments as necessary. Under ICE Clear Europe 
Rule 105(a), ICE Clear Europe could also elect to further delay the 
Withdrawal Date until the completion of the CDS default management 
process. In such case, ICE Clear Europe would similarly expect to 
delay its withdrawal from clearing agency registration until the 
completion of the default management process.
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    3. Accordingly, effective as of the Withdrawal Date, ICE Clear 
Europe will no longer be performing any activities of a clearing agency 
with respect to security-based swaps that would require registration 
under the Act.
    4. On the next business day following the Withdrawal Date (i.e., 
October 30, 2023), any remaining Margin or Permitted Cover held by ICE 
Clear Europe in respect of CDS Contracts will be available to CDS 
Clearing Members for withdrawal in accordance with standard ICE Clear 
Europe procedures, either through ``auto-release'' under ICE Clear 
Europe's banking system or as instructed by the relevant CDS Clearing 
Member. On that same day (i.e., October 30, 2023), a new Guaranty Fund 
Period for the CDS Guaranty Fund will start. ICE Clear Europe will set 
the required CDS Guaranty Fund Contribution to ``zero'' and notify CDS 
Clearing Members in accordance with ICE Clear Europe Rule 1102 by end-
of-day that same day (i.e., 18:00 London Time on October 30, 2023). The 
next day, on October 31, 2023, the CDS Guaranty Fund Contributions of 
CDS Clearing Members will be available for withdrawal in accordance 
with standard ICE Clear Europe procedures, either through ``auto-
release'' under ICE Clear Europe's banking system or as instructed by 
the relevant CDS Clearing Member.
    5. On the following Monday, November 6, 2023, ICE Clear Europe will 
follow its business-as-usual established processes for clearing 
membership terminations to calculate a final settlement amount 
reflecting any remaining net amount owed to or by each CDS Clearing 
Member, including with respect to any final fees and interest payments 
for the October 2023 period. Any such final amounts will be settled by 
09:00 London time on November 7, 2023.
    6. ICE Clear Europe, based on the above, believes that all known 
claims of ICE Clear Europe and CDS Clearing Members relating to the CDS 
Business will have been determined and settled as of the Withdrawal 
Date or, if any claims are not yet settled as of the Withdrawal Date, 
they will be settled on November 7, 2023 pursuant to its business-as-
usual established processes described above. Based on ICE Clear

[[Page 63176]]

Europe's Rules, ICE Clear Europe expects that claims against it in 
respect of the CDS clearing business would be limited to those of CDS 
Clearing Members arising in connection with cleared CDS contracts. 
Accordingly, once such contracts are terminated and finally settled in 
accordance with ICE Clear Europe's Rules as described above, and the 
Margin, Permitted Cover, and CDS Guaranty Fund Contributions of CDS 
Clearing Members are made available for withdrawal as described above, 
ICE Clear Europe does not anticipate that there would be any further 
claims of CDS Clearing Members in respect of the CDS clearing business. 
ICE Clear Europe further does not believe other persons would have 
claims against it in respect of cleared CDS contracts \30\ and that it 
has no other known or anticipated claims by or against it that are 
associated with its CDS Business or clearing agency registration. 
However, to the extent any valid claims relating to the CDS business 
may nonetheless be brought against it in the five years following 
withdrawal from registration (or such longer period as may be required 
by law), ICE Clear Europe--which will remain a going concern--would 
expect to pay such claims in the ordinary course of its operations. 
Finally, ICE Clear Europe will maintain records necessary to evaluate 
and address any contingent or other claims that be brought against it 
after withdrawal of its registration, for the period and in the manner 
discussed in point 7 below.
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    \30\ See, e.g., ICE Clear Europe Rule 111(f).
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    7. ICE Clear Europe will retain and maintain all documents, books, 
and records, including correspondence, memoranda, papers, notices, 
accounts, and other records made or received by it in the ordinary 
course of its CDS Business and its activities as a registered clearing 
agency, in accordance with the requirements of Exchange Act Rule 17a-
1(a) and (b),\31\ for a period of at least five years from the 
effective date of the withdrawal of registration. ICE Clear Europe 
further will produce such records and furnish such information at the 
request of any representative of the Commission, in accordance with 
Exchange Act Rule 17a-1(c).\32\
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    \31\ 17 CFR 240.17a-1(a) and (b).
    \32\ See also 17 CFR 240.17a-1(c).
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    8. Following the effectiveness of its withdrawal from registration 
hereunder, ICE Clear Europe will not seek to engage in securities 
clearing activity relating to security-based swaps in reliance on any 
deemed registered status pursuant to section 17A(l) of the Act. ICE 
Clear Europe notes that its affiliate, ICE Clear Credit LLC, will 
continue to clear security-based swaps as a registered clearing agency. 
If other affiliates of ICE Clear Europe seek to clear security-based 
swaps or other securities products in a manner that requires 
registration with the Commission under the Act, such affiliate would do 
so after registration with the Commission pursuant to the process set 
forth in Exchange Act Rule 17Ab2-1.\33\
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    \33\ 17 CFR 240.17Ab2-1.
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    ICE Clear Europe therefore requests that the Commission issue an 
order, pursuant to section 19(a)(3) of the Act,\34\ that its 
registration as a clearing agency under section 17A of the Act \35\ 
with respect to security-based swaps be withdrawn as of the Withdrawal 
Date of October 27, 2023, or as soon as practicable thereafter.
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    \34\ 15 U.S.C. 78s(a)(3).
    \35\ 15 U.S.C. 78q-1.
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    In the Written Request, ICE Clear Europe also requests that, 
effective as of the withdrawal of its registration hereunder, the 
Securities Product Exemption be withdrawn. As noted above, ICE Clear 
Europe requested, and the Commission granted, the Securities Product 
Exemption in light of the combination of security-based swap clearing 
activity and securities option clearing activity contemplated by ICE 
Clear Europe at the time. ICE Clear Europe represents in the Written 
Request that, upon cessation of security-based swap clearing activity 
and withdrawal of its clearing agency registration, ICE Clear Europe 
will fall within the category of foreign clearing agencies for which 
registration (or an exemption) is not required due to its lack of 
contact with the U.S.\36\ Accordingly, in ICE Clear Europe's view, the 
Securities Product Exemption will not be necessary for ICE Clear 
Europe's continued operation of the F&O clearing service following 
withdrawal of its clearing agency registration. As a result, ICE Clear 
Europe requests that the Commission terminate the Securities Product 
Exemption at the same time it approves ICE Clear Europe's request to 
withdraw from registration as a clearing agency.
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    \36\ In the Written Request, ICE Clear Europe represents that it 
does not currently clear any equity options on U.S. securities or 
single stock futures on U.S. securities. ICE Clear Europe further 
represents that ICE Clear Europe Rule 207(g) is intended to 
comprehensively exclude U.S. person Clearing Members for the purpose 
of clearing contracts that are futures or options on underlying U.S. 
securities.
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III. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the requested 
withdrawal is consistent with the Exchange 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/other.shtml), or
     Send an email to [email protected]. Please include 
File No. 4-809 on the subject line.

Paper Comments

     Send paper comments to Secretary, Securities and Exchange 
Commission, 100 F Street NE, Washington, DC, 20549-1090.

All submissions should refer to File Number 4-809. 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). 
Comments are also 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 a.m. and 3 
p.m. Operating conditions may limit access to the Commission's Public 
Reference Room.
    Do not include personal identifiable information in submissions; 
you should submit only information that you wish to make available 
publicly. We may redact in part or withhold entirely from publication 
submitted material that is obscene or subject to copyright protection. 
All submissions should refer to File Number 4-809 and should be 
submitted on or before October 5, 2023.

    By the Commission.
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-19847 Filed 9-13-23; 8:45 am]
BILLING CODE 8011-01-P