Notice2021-13247
Self-Regulatory Organizations; Cboe BYX Exchange, Inc.; Cboe BZX Exchange, Inc.; Cboe C2 Exchange, Inc.; Cboe EDGA Exchange, Inc.; Cboe EDGX Exchange, Inc.; Cboe Exchange, Inc.; NASDAQ BX, Inc.; Nasdaq GEMX, LLC; Nasdaq ISE, LLC; Nasdaq MRX, LLC; NASDAQ PHLX LLC and The NASDAQ Stock Market LLC; Suspension of and Order Instituting Proceedings To Determine Whether To Approve or Disapprove Proposed Rule Changes To Adopt a Fee Schedule To Establish Fees for Industry Members Related to the National Market System Plan Governing the Consolidated Audit Trail
Primary source
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Published
June 24, 2021
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 86 Issue 119 (Thursday, June 24, 2021)</title>
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[Federal Register Volume 86, Number 119 (Thursday, June 24, 2021)]
[Notices]
[Pages 33448-33454]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-13247]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-92207; File Nos. SR-BX-2021-018; SR-C2-2021-008; SR-
CBOE-2021-030; SR-CboeBYX-2021-011; SR-CboeBZX-2021-034; SR-CboeEDGA-
2021-010; SR-CboeEDGX-2021-024; SR-GEMX-2021-03; SR-ISE-2021-08; SR-
MRX-2021-05; SR-NASDAQ-2021-029; SR-PHLX-2021-25]
Self-Regulatory Organizations; Cboe BYX Exchange, Inc.; Cboe BZX
Exchange, Inc.; Cboe C2 Exchange, Inc.; Cboe EDGA Exchange, Inc.; Cboe
EDGX Exchange, Inc.; Cboe Exchange, Inc.; NASDAQ BX, Inc.; Nasdaq GEMX,
LLC; Nasdaq ISE, LLC; Nasdaq MRX, LLC; NASDAQ PHLX LLC and The NASDAQ
Stock Market LLC; Suspension of and Order Instituting Proceedings To
Determine Whether To Approve or Disapprove Proposed Rule Changes To
Adopt a Fee Schedule To Establish Fees for Industry Members Related to
the National Market System Plan Governing the Consolidated Audit Trail
June 17, 2021.
I. Introduction
On April 21, 2021, Cboe BYX Exchange, Inc. (``CboeBYX''), Cboe BZX
Exchange, Inc. (``CboeBZX''), Cboe C2 Exchange, Inc. (``C2''), Cboe
EDGA Exchange, Inc. (``Cboe EDGA''), Cboe EDGX Exchange, Inc. (``Cboe
EDGX''), Cboe Exchange, Inc. (``Cboe''), NASDAQ BX, Inc. (``BX''),
Nasdaq GEMX, LLC (``GEMX''), Nasdaq ISE, LLC (``ISE''), Nasdaq MRX, LLC
(``MRX''), NASDAQ PHLX LLC (``Phlx''), The NASDAQ Stock Market LLC
(``Nasdaq'') (collectively, the ``Nasdaq and Cboe Participants'') 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\ proposed rule changes \3\ to adopt a
fee schedule to establish fees for Industry Members \4\ related to the
National Market System Plan Governing the Consolidated Audit Trail
(``CAT NMS Plan'' or ``Plan'').\5\ The proposed rule changes were
immediately effective upon filing with the Commission pursuant to
Section 19(b)(3)(A) of the Act.\6\ The proposed rule changes were
published for comment in the Federal Register on May 10, 2021.\7\ The
Commission has received no comments on the proposed rule changes.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ See Securities Exchange Act Release Nos. 91750 (May 4,
2021), 86 FR 25045 (May 10, 2021) (SR-BX-2021-018) (``Notice'');
91751 (May 4, 2021), 86 FR 24941 (May 10, 2021) (SR-PHLX-2021-25);
91752 (May 4, 2021), 86 FR 24921 (May 10, 2021) (SR-NASDAQ-2021-
029); 91753 (May 4, 2021), 86 FR 24994 (May 10, 2021) (SR-MRX-2021-
05); 91755 (May 4, 2021), 86 FR 25035 (May 10, 2021) (SR-ISE-2021-
08); 91756 (May 4, 2021), 86 FR 24979 (May 10, 2021) (SR-GEMX-2021-
03); 91757 (May 4, 2021), 86 FR 24911 (May 10, 2021) (SR-C2-2021-
008); 91758 (May 4, 2021), 86 FR 25004 (May 10, 2021) (SR-CboeEDGX-
2021-024); 91759 (May 4, 2021), 86 FR 24956 (May 10, 2021) (SR-
CboeEDGA-2021-010); 91760 (May 4, 2021), 86 FR 24966 (May 10, 2021)
(SR-CBOE-2021-030); 91761 (May 4, 2021), 86 FR 25016 (May 10, 2021)
(SR-CboeBYX-2021-011); and 91762 (May 4, 2021), 86 FR 24931 (May 10,
2021) (SR-CboeBZX-2021-034).
\4\ The CAT NMS Plan defines ``Industry Member'' as ``a member
of a national securities exchange or a member of a national
securities association.'' See CAT NMS Plan, infra note 5, at Section
1.1.
\5\ The CAT NMS Plan is a national market system plan approved
by the Commission pursuant to Section 11A of the Act and the rules
and regulations thereunder. See Securities Exchange Act Release No.
79318 (November 15, 2016), 81 FR 84696 (November 23, 2016). The CAT
NMS Plan functions as the limited liability company agreement of the
jointly owned limited liability company formed under Delaware state
law through which the Participants conduct the activities of the CAT
(``Company''). On August 29, 2019, the Participants replaced the CAT
NMS Plan in its entirety with the limited liability company
agreement of a new limited liability company named Consolidated
Audit Trail, LLC, which became the Company. See Securities Exchange
Act Release No. 87149 (September 27, 2019), 84 FR 52905 (October 3,
2019).
\6\ 15 U.S.C. 78s(b)(3)(A). A proposed rule change may take
effect upon filing with the Commission if it is designated by the
exchange as ``establishing or changing a due, fee, or other charge
imposed by the self-regulatory organization on any person, whether
or not the person is a member of the self-regulatory organization.''
15 U.S.C. 78s(b)(3)(A)(ii).
\7\ See supra note 3.
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Pursuant to Section 19(b)(3)(C) of the Act, the Commission is
hereby: (1) Temporarily suspending the proposed rule changes; and (2)
instituting proceedings to determine whether to approve or disapprove
the proposals.
II. Summary of the Proposed Rule Changes \8\
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\8\ For a more detailed description of the proposed rule
changes, see Notice, supra note 3.
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In July 2012, the Commission adopted Rule 613 of Regulation NMS,
which required national securities exchanges and national securities
associations (``Participants'') \9\ to jointly develop and submit to
the Commission a national market system plan (``NMS plan'') to create,
implement, and maintain a consolidated audit trail (``CAT'') \10\ that
would capture customer and order event information for orders in NMS
securities. On November 15, 2016, the Commission approved the CAT NMS
Plan required by Rule 613.\11\ Under the CAT NMS Plan, the Operating
Committee of a newly formed company--CAT NMS, LLC, of which each
Participant is a member--has the discretion (subject to the funding
principles set forth in the CAT NMS Plan) to establish funding for the
Company to operate the CAT, including establishing fees to be paid by
the Participants and Industry Members.\12\
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\9\ The Participants include BOX Exchange LLC, Cboe BYX
Exchange, Inc., Cboe BZX Exchange, Inc., Cboe C2 Exchange, Inc.,
Cboe EDGA Exchange, Inc., Cboe EDGX Exchange, Inc., Cboe Exchange,
Inc., Financial Industry Regulatory Authority, Inc., Investors'
Exchange LLC, Long-Term Stock Exchange, Inc., MEMX LLC, Miami
International Securities Exchange LLC, MIAX Emerald, LLC, MIAX
PEARL, LLC, Nasdaq BX, Inc., Nasdaq GEMX, LLC, Nasdaq ISE, LLC,
Nasdaq MRX, LLC, Nasdaq PHLX LLC, The Nasdaq Stock Market LLC, New
York Stock Exchange LLC, NYSE American LLC, NYSE Arca, Inc., NYSE
Chicago, Inc., and NYSE National, Inc.
\10\ See Securities Exchange Act Release No. 67457 (July 18,
2012), 77 FR 45722 (August 1, 2012).
\11\ See supra note 5.
\12\ See CAT NMS Plan, supra note 5, at Section 11.1(b).
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The Plan specified that, in establishing the funding of the
Company, the Operating Committee shall establish ``a tiered fee
structure in which the fees charged to: (i) CAT Reporters that are
Execution Venues, including ATSs, are based upon the level of market
share; (ii) Industry Members' non-ATS activities are based upon message
traffic; and (iii) the CAT Reporters with the most CAT-related activity
(measured by market share and/or message traffic, as applicable) are
generally comparable (where, for these comparability purposes, the
tiered fee structure takes into consideration affiliations between or
among CAT Reporters, whether Execution Venues and/or Industry
Members).'' \13\ Under the Plan, such fees are to be implemented in
accordance with various funding principles, including an ``allocation
of the Company's related costs among Participants and Industry Members
that is consistent with the Exchange Act taking into account . . .
distinctions in the securities trading operations of Participants and
Industry Members and their relative impact upon the Company resources
and operations'' and the ``avoid[ance of] any disincentives such as
placing an inappropriate burden on competition and reduction in market
quality.'' \14\
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\13\ Id. at Section 11.2(c). See Article XI of the CAT NMS Plan
for additional detail. Id. at Article XI.
\14\ Id. at Section 11.2(b) and (e).
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[[Page 33449]]
On May 15, 2020, the Commission adopted amendments to the CAT NMS
Plan designed to increase the Participants' financial accountability
for the timely completion of the CAT (``Financial Accountability
Amendments'').\15\ The Financial Accountability Amendments added
Section 11.6 to the CAT NMS Plan to govern the recovery from Industry
Members of any fees, costs, and expenses (including legal and
consulting fees, costs and expenses) incurred by or for the Company in
connection with the development, implementation and operation of the
CAT from June 22, 2020 until such time that the Participants have
completed Full Implementation of CAT NMS Plan Requirements \16\
(``Post-Amendment Expenses''). Section 11.6 establishes target
deadlines for four critical implementation milestones (Periods 1, 2, 3
and 4) \17\ and reduces the amount of fee recovery available to the
Participants if these deadlines are missed.\18\
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\15\ See Securities Exchange Act Release No. 88890, 85 FR 31322
(May 22, 2020).
\16\ See CAT NMS Plan, supra note 5, at Section 1.1.
\17\ Id. at Section 11.6(a)(i).
\18\ Id. at Section 11.6(a)(ii) and (iii).
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The Participants filed an amendment to the CAT NMS Plan on March
31, 2021 (``Proposed CAT Fee Plan Amendment'') to implement a revised
funding model (``Proposed Funding Model'') and to establish the CAT
fees to be charged to themselves.\19\ On April 21, 2021, the Proposed
CAT Fee Plan Amendment was published for comment in the Federal
Register.\20\ The Commission has not acted on the Proposed CAT Fee Plan
Amendment. In the meantime, the Nasdaq and Cboe Participants submitted
the proposed rule changes that are the subject of this Order \21\ to
adopt a fee schedule to establish CAT fees applicable to their Industry
Members in accordance with the Proposed CAT Fee Plan Amendment.\22\ In
their filings, the Nasdaq and Cboe Participants stated that the fee
schedule provisions will become operative upon the Commission's
approval of the Proposed CAT Fee Plan Amendment.\23\
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\19\ See Securities Exchange Act Release No. 91555 (April 14,
2021), 86 FR 21050 (April 21, 2021).
\20\ Id.
\21\ Section 11.1(b) of the CAT NMS Plan requires the
Participants to file with the Commission under Section 19(b) of the
Act any CAT fees applicable to Industry Members that the Operating
Committee approves. See CAT NMS Plan, supra note 5, at Section
11.1(b).
\22\ For additional details regarding these fees, see, e.g.,
Notice, supra note 3.
\23\ Id. at 25045.
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A. Allocation of Total CAT Costs
Under the Proposed Funding Model, ``Total CAT Costs'' would include
costs associated with developing, implementing and operating the CAT
for the relevant period.\24\ The Nasdaq and Cboe Participants propose
to recover 75% of the Total CAT Costs from Industry Members (``Industry
Member Allocation'').\25\ As detailed below, the proposed rule changes
would recover the Total CAT Costs from Industry Members on a quarterly
basis through four categories of CAT fees: A Historical CAT
Assessment,\26\ a Period 3 CAT Fee,\27\ a Period 4 CAT Fee \28\ and a
Quarterly CAT Fee.\29\ The Historical CAT Assessment would be designed
to recover certain CAT costs incurred prior to January 1, 2021
(``Historical CAT Assessment Costs'').\30\ Excluding certain costs,\31\
the Total CAT Costs for this period are $193,273,342.\32\ Under the
proposed rule changes, the Historical CAT Assessment would recover 75%
of these costs from Industry Members ($144,955,006).\33\ As proposed,
the Period 3 CAT Fee would recover from Industry Members 75% of the
Total CAT Costs incurred from January 1, 2021 through December 31,
2021.\34\ The Period 4 CAT Fee would recover 75% of Total CAT Costs
incurred from January 1, 2022 through December 30, 2022.\35\ Beginning
in the second quarter of 2023, Industry Members would be assessed a
Quarterly CAT Fee on an ongoing basis of 75% of the budgeted Total CAT
Costs for the relevant year.\36\ The proposed rule changes state that
the budgeted Total CAT Costs would be set forth in the annual operating
budget approved by the Operating Committee for the relevant year
pursuant to Section 11.1(a) of the CAT NMS Plan.\37\ The Total CAT
Costs applicable to the Period 3 and 4 CAT Fees would be set forth in
the year-end financial statements of the Company for 2021 and 2022,
respectively.\38\
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\24\ Id. at 25045-6.
\25\ Id. at 25046.
\26\ See infra Section II.D.a.
\27\ See infra Section II.D.b.
\28\ See infra Section II.D.c.
\29\ See infra Section II.D.d.
\30\ See, e.g., Notice, supra note 3, at 25049.
\31\ Proposed CAT Fee Plan Amendment, supra note 19, at 21064.
\32\ See, e.g., Notice, supra note 3, at 25049.
\33\ Id.
\34\ Id. at 25050.
\35\ Id. at 25051.
\36\ Id. at 25052.
\37\ The proposed rule changes state that the budgeted Total CAT
Costs may be adjusted on a quarterly basis, and if the Operating
Committee adjusts such costs within a year, the adjusted costs would
be used in calculating the remaining CAT fees for that year. Id. at
25052.
\38\ See, e.g., Notice, supra note 3, at 25050, 25051.
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[[Page 33450]]
B. Message Traffic
Under the proposed rule changes, each Industry Member would pay a
CAT fee calculated by multiplying its message traffic percentage of
total Industry Member message traffic per quarter \39\ by the Industry
Member Allocation, subject to market maker discounts for message
traffic, as applicable, as well as a minimum fee and a maximum fee.\40\
Under the proposed rule changes, when calculating the message traffic
of an Industry Member that is an Options Market Maker,\41\ its market
making message traffic would be discounted by multiplying its Listed
Options \42\ market making message traffic by the Listed Options trade-
to-quote ratio.\43\ The trade-to-quote ratio would be calculated each
quarter based on the prior quarter's SIP Data \44\ that is included in
CAT Data.\45\ The proposed discount would be calculated by dividing the
adjusted trade count \46\ by the total number of quotes received by the
SIPs.\47\
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\39\ The proposed rule changes state that message traffic would
be calculated based on Industry Members' Reportable Events reported
to the CAT, as defined in the CAT Reporting Technical Specifications
for Industry Members. Reportable Events that would be counted as
message traffic would include the New Order Event, the Order Route
Event and the Trade Event. Message traffic would not include
reporting activity related to Customer information as set forth in
the CAT Reporting Customer and Account Technical Specifications for
Industry Members. Id. at 25047.
\40\ See infra Section II.C.
\41\ The CAT NMS Plan defines ``Options Market Maker'' as ``a
broker-dealer registered with an exchange for the purpose of making
markets in options contracts traded on the exchange.'' See CAT NMS
Plan, supra note 5, at Section 1.1.
\42\ The CAT NMS Plan states that ``Listed Option'' has the
meaning set forth in Regulation NMS. Id. Rule 600(b)(43) of
Regulation NMS defines ``Listed Option'' as ``any option traded on a
registered national securities exchange or automated facility of a
national securities association.'' See 17 CFR 242.600(b)(43).
\43\ See, e.g., BX Proposed Rule General 7A(g)(1).
\44\ See, e.g., Notice, supra note 3, at 25047. See also CAT NMS
Plan, supra note 5, at Section 1.1., Section 6.5(a)(ii).
\45\ See, e.g., Notice, supra note 3, at 25047. See also CAT NMS
Plan, supra note 5, at Section 1.1.
\46\ The proposed rule changes describe the adjusted trade count
as ``the total number of trades for the quarter minus the total
number of trade busts.'' See, e.g., Notice, supra note 3, at 25047.
\47\ For each Options Market Maker, the discount would apply to
``(1) all message traffic reported to the CAT by the Options Market
Maker related to an order originated by a market maker in its market
making account for a security in which it is registered . . . and
(2) all message traffic for which a `quote sent time' is reported by
an Options Exchange on behalf of the given Options Market Maker.''
Id.
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Under the proposed rule changes, when calculating the message
traffic of an Industry Member that is an equity market maker in NMS
Stocks (``Equity Market Maker''), its market making message traffic
would be discounted by multiplying its market making message traffic in
NMS Stocks by the NMS Stock trade-to-quote ratio.\48\ The trade-to-
quote ratio would be calculated each quarter based on the prior
quarter's SIP Data that is included in CAT Data.\49\ The proposed
discount would be calculated by dividing the adjusted trade count by
the total number of quotes received by the SIPs.\50\ The discounted
message traffic of Options Market Makers and Equity Market Makers would
be counted as part of total Industry Member message traffic.\51\
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\48\ See, e.g., BX Proposed Rule General 7A(g)(2).
\49\ See, e.g., Notice, supra note 3, at 25048.
\50\ Id. See also supra note 46.
\51\ See, e.g., Notice, supra note 3, at 25047.
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C. Minimum and Maximum Industry Member CAT Fee
Under the proposed rule changes, each Industry Member would be
subject to a minimum Industry Member CAT fee of $125 per quarter
(``Minimum Industry Member CAT Fee'').\52\ If an Industry Member's CAT
fee would be less than $125 per quarter, it would pay the Minimum
Industry Member CAT Fee, even if it has not yet begun to report to the
CAT.\53\ If any Industry Member is required to pay the Minimum Industry
Member CAT Fee, the total additional amount paid by all such Industry
Members over the amount they otherwise would have paid as a result of
their message traffic calculation would be discounted from all Industry
Members other than those that were subject to a Minimum Industry Member
CAT Fee in accordance with their message traffic percentage (``Minimum
Industry Member CAT Fee Re-Allocation'').\54\
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\52\ Id. at 25048; see, e.g., BX Proposed Rule General 7A(h)(1).
\53\ See, e.g., Notice, supra note 3, at 25048.
\54\ See, e.g., BX Proposed Rule General 7A(h)(2). Options
Market Makers and Equity Market Makers would be required to pay the
Minimum Industry Member CAT Fee if their quarterly CAT fee
calculated with the market maker discounts is less than $125 per
quarter. See, e.g., Notice, supra note 3, at 25048, n.32.
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Under the proposed rule changes, each Industry Member's CAT fee
would also be subject to a maximum Industry Member CAT fee, which would
be the fee calculated based on 8% of the total Industry Member message
traffic for the relevant quarter (``Maximum Industry Member CAT
Fee'').\55\ If any Industry Member's fee is subject to the Maximum
Industry Member CAT Fee, any excess amount which the Industry Member
would have paid as a fee above such Maximum Industry Member CAT Fee
will be re-allocated among all Industry Members (including any Industry
Members subject to the Maximum Industry Member CAT Fee and any Industry
Members subject to the Minimum Industry Member CAT Fee) in accordance
with their percentage of total message traffic (``Maximum Industry
Member CAT Fee Re-Allocation'').\56\
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\55\ Id. at 25048. The Commission notes that the proposed rule
text states ``[t]he Maximum Industry Member CAT Fee for each quarter
is 8% of the total CAT costs for the relevant quarter'' (emphasis
added). See, e.g., BX Proposed Rule General 7A(f)(1).
\56\ See, e.g., BX Proposed Rule General 7A(f)(2).
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D. Amount and Timing of Proposed CAT Fees
As discussed above, the proposed rule changes would recover the
Total CAT Costs from Industry Members through the assessment of four
categories of CAT fees on a quarterly basis: A Historical CAT
Assessment, a Period 3 CAT Fee, a Period 4 CAT Fee and a Quarterly CAT
Fee.
a. Historical CAT Assessment
The proposed rule changes state that, for four calendar quarters
commencing ``in the first quarter after SEC approval of the Historical
CAT Assessment, based on CAT Data from the quarter in which the SEC
approved the CAT fees,'' \57\ each Industry Member would pay a
Historical CAT Assessment which would be the greater of: (1) The
Minimum Industry Member CAT Fee (plus any applicable Maximum Industry
Member CAT Fee Re-Allocation); or (2) the amount calculated by
multiplying the percentage of the Industry Member's message traffic of
the total Industry Member message traffic based on the prior quarter's
message traffic by $36,238,752 \58\ (subject to the proposed market
maker discounts for message traffic, as applicable, as well as the
Maximum Industry Member CAT Fee, Maximum Industry Member CAT Fee Re-
Allocation and Minimum Industry Member CAT Fee Re-Allocation).\59\
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\57\ See, e.g., Notice, supra note 3, at 25049.
\58\ The Commission notes that $36,238,752 is one-quarter of the
$144,955,006 Historical CAT Assessment Costs. See supra Section
II.A.
\59\ See, e.g., BX Proposed Rule General 7A(b).
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As discussed above, the proposed Historical CAT Assessment is
intended to recover the Historical CAT Assessment Costs, which comprise
certain CAT costs incurred prior to January 1, 2021.\60\ These costs
would include costs incurred through June 22, 2020, the effective date
of Section 11.6 of the CAT NMS Plan, and costs related to Post-
Amendment Expenses incurred during Period 1 (June 22, 2020 through July
31, 2020, the date of Initial Industry
[[Page 33451]]
Member Core Equity and Options Reporting \61\) and during Period 2
(August 1, 2020 through December 31, 2020, the date of the Full
Implementation of Core Equity Reporting \62\).\63\ The Historical CAT
Assessment Costs would include fees, costs and expenses incurred by or
for the Company in connection with the development, implementation and
operation of the CAT during Periods 1 and 2.\64\
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\60\ See supra Section II.A.
\61\ See CAT NMS Plan, supra note 5, at Section 1.1.
\62\ Id.
\63\ See, e.g., Notice, supra note 3, at 25049, 25050.
\64\ Id.
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b. Period 3 CAT Fee
Under the proposed rule changes, for four quarters commencing in
the second quarter of 2022, each Industry Member would pay a Period 3
CAT Fee which would be the greater of: (1) The Minimum Industry Member
CAT Fee (plus any applicable Maximum Industry Member CAT Fee Re-
Allocation); or (2) the amount calculated by multiplying the percentage
of the Industry Member's message traffic of the total Industry Member
message traffic based on the prior quarter's message traffic by \1/4\
of 75% of the Period 3 Total CAT Costs \65\ (subject to the proposed
market maker message traffic discounts, as applicable, as well as the
Maximum Industry Member CAT Fee, Maximum Industry Member CAT Fee Re-
Allocation and Minimum Industry Member CAT Fee Re-Allocation).\66\
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\65\ The Period 3 CAT Costs would be the Total CAT Costs
incurred from January 1, 2021 through December 31, 2021. Id. at
25050.
\66\ See, e.g., BX Proposed Rule General 7A(c).
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According to the Nasdaq and Cboe Participants, the proposed Period
3 CAT Fee is intended to recover a percentage of the Total CAT Costs
incurred from January 1, 2021 through December 31, 2021.\67\ The Period
3 CAT Costs would be related to Post-Amendment Expenses \68\ and would
include fees, costs and expenses incurred by or for the Company in
connection with the development, implementation and operation of the
CAT during Period 3.\69\ The Period 3 CAT Costs would be calculated at
the end of 2021 and would be set forth in the 2021 financial statements
for the Company.\70\ Through a CAT alert after the end of 2021, the
Operating Committee would announce the Total CAT Costs for 2021 to be
used to calculate the Period 3 CAT Fees.\71\ Industry Members would be
required to commence paying the Period 3 CAT Fee in the second quarter
of 2022, based on CAT Data from the first quarter of 2022.\72\
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\67\ See, e.g., Notice, supra note 3, at 25050.
\68\ Id. at 25051.
\69\ Id.
\70\ Id. at 25050. The proposed rule changes state that the
Period 3 CAT Costs will be the total actual CAT costs incurred for
the CAT for 2021 as set forth in the year-end financial statements
of the Company for 2021. Id.
\71\ Id.
\72\ See, e.g., Notice, supra note 3, at 25050.
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The proposed rule changes state that collection of the full amount
of the Period 3 CAT Fee will depend upon achievement of Full
Availability and Regulatory Utilization of Transaction Database
Functionality \73\ by December 31, 2021.\74\ If such achievement is not
met, the amount of the Period 3 CAT Fee that may be recovered from
Industry Members will depend upon the fee limitations in Section
11.6(a)(ii) of the CAT NMS Plan, as established by the Financial
Accountability Amendments.\75\
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\73\ See CAT NMS Plan, supra note 5, at Section 1.1.
\74\ See, e.g., Notice, supra note 3, at 25051.
\75\ Id. See also supra note 15.
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c. Period 4 CAT Fee
Under the proposed rule changes, for four quarters commencing in
the second quarter of 2023, each Industry Member shall pay a Period 4
CAT Fee which shall be the greater of: (1) The Minimum Industry Member
CAT Fee (plus any applicable Maximum Industry Member CAT Fee Re-
Allocation); or (2) the amount calculated by multiplying the percentage
of the Industry Member's message traffic of the total Industry Member
message traffic based on the prior quarter's message traffic by \1/4\
of 75% of the Period 4 Total CAT Costs \76\ (subject to the proposed
market maker message traffic discounts, as applicable, as well as the
Maximum Industry Member CAT Fee, Maximum Industry Member CAT Fee Re-
Allocation and Minimum Industry Member CAT Fee Re-Allocation).\77\
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\76\ The Period 4 CAT Costs would be the Total CAT Costs
incurred from January 1, 2022 through December 30, 2022. See, e.g.,
Notice, supra note 3, at 25050.
\77\ See, e.g., BX Proposed Rule General 7A(d).
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According to the Nasdaq and Cboe Participants, the proposed Period
4 CAT Fee is intended to recover a percentage of the Total CAT Costs
incurred from January 1, 2022 through December 30, 2022 (the date of
Full Implementation of CAT NMS Plan Requirements).\78\ The Period 4 CAT
Costs would recover costs related to Post-Amendment Expenses \79\ and
would include fees, costs and expenses incurred by or for the Company
in connection with the development, implementation and operation of the
CAT during Period 4.\80\ The Period 4 CAT Costs would be calculated at
the end of 2022 and will be set forth in the 2022 financial statements
for the Company.\81\ Through a CAT alert after the end of 2022, the
Operating Committee would announce the Total CAT Costs for 2022 to be
used to calculate the Period 4 CAT Fees.\82\
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\78\ See, e.g., Notice, supra note 3, at 25051.
\79\ Id.
\80\ Id. at 25051-2.
\81\ Id. at 25051. The proposed rule changes state that the
Period 4 CAT Costs will be the total actual CAT costs incurred for
the CAT in 2022 as set forth in the year-end financial statements of
the Company for 2022. Id.
\82\ Id.
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The proposed rule changes state that collection of the full amount
of the Period 4 CAT Fee will depend upon achievement of Full
Implementation of CAT NMS Plan Requirements by December 30, 2022.\83\
If such achievement is not met, the amount of the Period 4 CAT Fee that
may be recovered from Industry Members will depend upon the fee
limitations in Section 11.6(a)(ii) of the CAT NMS Plan, as established
by the Financial Accountability Amendments.\84\
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\83\ See, e.g., Notice, supra note 3, at 25052.
\84\ Id. at 25051. See also supra note 15.
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d. Quarterly CAT Fee
Under the proposed rule changes, on an ongoing basis commencing in
the second quarter of 2023, each Industry Member would pay a Quarterly
CAT Fee which would be the greater of: (1) The Minimum Industry Member
CAT Fee (plus any applicable Maximum Industry Member CAT Fee Re-
Allocation); or (2) the amount calculated by multiplying the percentage
of the Industry Member's message traffic of the total Industry Member
message traffic based on the prior quarter's message traffic by \1/4\
of 75% of the budgeted Total CAT Costs \85\ (subject to the proposed
market maker message traffic discounts, as applicable, as well as the
Maximum Industry Member CAT Fee, Maximum Industry Member CAT Fee Re-
Allocation and Minimum Industry Member CAT Fee Re-Allocation).\86\
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\85\ The proposed rule changes state that the budgeted Total CAT
Costs for the relevant year would be the total CAT costs set forth
in the annual operating budget approved by the Operating Committee
pursuant to Section 11.1(a) of the CAT NMS Plan for the relevant
year. See, e.g., Notice, supra note 3, at 25052.
\86\ See, e.g., BX Proposed Rule General 7A(a).
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According to the Nasdaq and Cboe Participants, the proposed
Quarterly CAT Fee is intended to recover estimated Total CAT Costs
budgeted for an upcoming year.\87\ The budgeted Total CAT Costs would
include Plan Processor costs, insurance costs, third-party support
costs and an operational
[[Page 33452]]
reserve.\88\ The Operating Committee may adjust the budgeted Total CAT
Costs on a quarterly basis for the prudent operation of the Company, in
which case, the adjusted budgeted costs for the CAT would be used to
calculate the remaining CAT fees for that year.\89\ Through a CAT alert
at the beginning of the relevant year, the Operating Committee would
announce the budgeted Total CAT Costs to be used to calculate the
Quarterly CAT Fee for the year.\90\
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\87\ See, e.g., Notice, supra note 3, at 25052.
\88\ Id.
\89\ Id.
\90\ Id.
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e. Multiple Payments
According to the proposed rule changes, to the extent that any two
or more of the four categories of Industry Member CAT fees are due
during the same quarter, any Industry Member that is obligated to pay
one or more categories of fees would be required to pay each category
of fee for that quarter.\91\ The proposed rule changes explain, ``[f]or
example, if an Industry Member would be subject to the Minimum Industry
Member CAT Fee for the Period 4 CAT Fee and the Minimum Industry Member
CAT Fee for the Quarterly CAT Fee during the same quarter, the Industry
Member would be required to pay two minimum $125 fees that quarter for
a total of $250. As another example, suppose that an Industry Member
owed a CAT fee (other than the minimum fee of $125) for both the
Historical CAT Assessment and the Period 3 CAT Fee, the Industry Member
would be required to pay both fees that quarter.'' \92\
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\91\ Id. at n.44.
\92\ Id.
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f. Timing and Manner of Payment
Under the proposed rule changes, the Company would provide one
invoice to each Industry Member per payment period for the Historical
CAT Assessment, Period 3 CAT Fee, Period 4 CAT Fee and Quarterly CAT
Fee.\93\ An Industry Member that is a member of multiple self-
regulatory organizations would only receive one invoice from the
Company per payment period.\94\
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\93\ See, e.g., Notice, supra note 3, at 25053.
\94\ Id.
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Industry Members would pay their CAT fees to the Company through a
centralized system.\95\ Payment of CAT fees would be due within 30 days
after receipt of an invoice, unless a longer period is indicated.\96\
If an Industry Member's payment is late, the Industry Member would pay
interest on the outstanding balance from the due date until such fee is
paid at a per annum rate equal to the lesser of (i) the Prime Rate plus
300 basis points, or (ii) the maximum rate permitted by applicable
law.\97\
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\95\ Id.
\96\ Id.
\97\ Id.
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III. Suspension of the Proposed Rule Changes
Pursuant to Section 19(b)(3)(C) of the Act,\98\ at any time within
60 days of the date of filing of an immediately effective proposed rule
change in accordance with Section 19(b)(1) of the Act,\99\ the
Commission summarily may temporarily suspend the change in the rules of
a self-regulatory organization (``SRO'') made thereby 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. The Commission believes a
temporary suspension of the proposed rule changes is warranted here.
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\98\ 15 U.S.C. 78s(b)(3)(C).
\99\ 15 U.S.C. 78s(b)(1).
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As Participants of the CAT NMS Plan, the Nasdaq and Cboe
Participants are subject to Rule 608 of Regulation NMS under the
Act,\100\ which governs the filing and amendment of NMS plans. Rule
608(c) of Regulation NMS \101\ requires each SRO that is a sponsor or
participant of an effective NMS plan to comply with the terms of the
plan. In temporarily suspending the proposed rule changes, the
Commission intends to consider whether, among other things, the
following aspects of the proposed rule changes are consistent with the
CAT NMS Plan, and, consequently, Rule 608(c) of Regulation NMS:
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\100\ 17 CFR 242.608.
\101\ 17 CFR 242.608(c).
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Alternative Trading Systems: The proposed rule changes include all
alternative trading system (``ATS'') message traffic in calculating
Industry Member CAT fees. The Commission is considering whether the
proposed rule changes are consistent with Section 11.3(b) of the Plan,
which requires the Operating Committee to establish fixed fees to be
payable by Industry Members, that include message traffic generated by:
(i) An ATS that does not execute orders that is sponsored by an
Industry Member; and (ii) routing orders to and from any ATS sponsored
by an Industry Member.\102\ In addition, the Commission is considering
whether the proposed rule changes are consistent with Section 11.2(c)
of the CAT NMS Plan, which requires the Operating Committee to
establish a tiered fee structure whereby Industry Members are charged
fees based on message traffic for non-ATS activities.\103\
---------------------------------------------------------------------------
\102\ See CAT NMS Plan, supra note 5, at Section 11.3(b).
\103\ Id. at Section 11.2(c).
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Tiered Fixed Fees: Under the proposed rule changes, Industry Member
CAT fees would be calculated based on an Industry Member's percentage
of total Industry Member message traffic without any tiering (subject
to the proposed market maker message traffic discounts, as applicable,
as well as the Maximum Industry Member CAT Fee, the Maximum Industry
Member CAT Fee Re-Allocation and the Minimum Industry Member CAT Fee
Re-Allocation). The Commission is considering whether the proposed rule
changes are consistent with Section 11.3(b) of the CAT NMS Plan, which
requires the Operating Committee to establish at least five, but no
more than nine, tiers of fixed fees to be payable by Industry
Members,\104\ and Section 11.1(d) of the Plan, which requires the
Operating Committee to adopt policies, procedures, and practices
regarding the assignment of tiers.\105\
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\104\ Id. at Section 11.3(b).
\105\ Id. at Section 11.1(d).
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Comparability: The proposed rule changes do not require that CAT
fees for Industry Members and Participants with the most CAT-related
activity be generally comparable. The Commission is considering whether
the proposed rule changes are consistent with Section 11.2(c) of the
CAT NMS Plan, which requires the tiered fee structure to charge fees
whereby ``CAT Reporters with the most CAT-related activity (measured by
market share and/or message traffic, as applicable) are generally
comparable (where, for these comparability purposes, the tiered fee
structure takes into consideration affiliations between or among CAT
Reporters, whether Execution Venues and/or Industry Members).'' \106\
---------------------------------------------------------------------------
\106\ Id. at Section 11.2(c).
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Minimum and Maximum Industry Member CAT Fees and Market Maker
Discounts: In calculating an Industry Member's CAT fee, the proposed
rule changes would require the application of the Minimum Industry
Member CAT Fee, Minimum Industry Member CAT Fee Allocation, Maximum
Industry Member CAT Fee, Maximum Industry Member CAT Fee Allocation,
and, as applicable, discounts on the message traffic of Options Market
Makers and Equity Market Makers. The Commission is considering whether
the proposed rule changes are consistent with Section 11.3(b) of the
CAT NMS Plan, which
[[Page 33453]]
requires the Operating Committee to establish fixed fees to be payable
by Industry Members, based on the message traffic generated by such
Industry Member, subject to tiering.\107\
---------------------------------------------------------------------------
\107\ Id. at Section 11.3(b).
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Financial Accountability Milestones: In describing the costs to be
recovered by the Historical CAT Assessment, the proposed rule changes
refer to ``certain costs from Period 1 of the Financial Accountability
Milestones (which covered the period from June 22, 2020-July 31, 2020
and certain costs from Period 2 of the Financial Accountability
Milestones (which covered the period from August 1, 2020-December 31,
2020).'' \108\ For the Period 3 CAT Fee, the proposed rule changes
refer to ``Total CAT Costs incurred from January 1, 2021 through
December 31, 2021.'' \109\ For the Period 4 CAT Fee, the proposed rule
changes refer to ``Total CAT Costs incurred from January 1, 2022
through December 30, 2022.'' \110\
---------------------------------------------------------------------------
\108\ See, e.g., Notice, supra note 3, at 25049.
\109\ Id. at 25050.
\110\ Id. at 25051.
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Section 11.6 of the CAT NMS Plan provides that the Participants may
recover from Industry Members Post-Amendment Expenses \111\ over four
Periods: Period 1, Period 2, Period 3 and Period 4. Section 11.6(a)
sets target deadlines for each Period and establishes a fee reduction
schedule if those target deadlines are missed.\112\ The target dates
for Period 1, Period 2, Period 3 and Period 4 are July 31, 2020,
December 31, 2020, December 31, 2021 and December 30, 2022,
respectively.\113\ To enable the Commission to determine whether the
fee reduction provisions should be applied to fees associated with a
specific Period,\114\ Section 11.6(b) further requires that filings
submitted by the Participants to the Commission under Section 19(b) of
the Act, to establish or implement fees to recover Post-Amendment
Expenses, must clearly indicate whether such fees are related to Post-
Amendment Expenses incurred during Period 1, Period 2, Period 3, or
Period 4.\115\ The Commission is considering whether the aspects of the
proposed rule changes related to the Financial Accountability
Milestones are consistent with Section 11.6 of the CAT NMS Plan.\116\
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\111\ See text accompanying notes 15-16.
\112\ See CAT NMS Plan, supra note 5, at Section 11.6(a)
\113\ Id.
\114\ See Securities Exchange Act Release No. 86901 (September
9, 2019), 84 FR 48458, 48472 (``Requiring the Participants to
specify whether any proposed fees are related to Post-Amendment
Expenses, and the Period to which they are related, will help the
Commission to determine whether it must consider the provisions of
proposed Section 11.6 in evaluating the proposed fees.'').
\115\ See CAT NMS Plan, supra note 5, at Section 11.6(b).
\116\ Id. at Section 11.6.
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IV. Proceedings To Determine Whether To Approve or Disapprove the
Proposed Rule Changes
The Commission also hereby institutes proceedings pursuant to
Sections 19(b)(3)(C) \117\ and 19(b)(2)(B) of the Act \118\ to
determine whether the proposed rule changes should be approved or
disapproved. Institution of proceedings does not indicate that the
Commission has reached any conclusions with respect to any of the
issues involved. Rather, as stated below, the Commission seeks and
encourages interested persons to provide comment on the proposed rule
change to inform the Commission's analysis of whether to disapprove the
proposed rule change.
---------------------------------------------------------------------------
\117\ 15 U.S.C. 78s(b)(3)(C). Once the Commission temporarily
suspends a proposed rule change, Section 19(b)(3)(C) of the Act
requires that the Commission institute proceedings under Section
19(b)(2)(B) to determine whether a proposed rule change should be
approved or disapproved.
\118\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------
Pursuant to Section 19(b)(2)(B) of the Act,\119\ the Commission is
hereby providing notice of the grounds for disapproval under
consideration. The Commission believes that instituting proceedings
will allow for additional analysis of, and input from commenters with
respect to, the proposed rule change's consistency with Section 11A of
the Act \120\ and Rule 608(c) of Regulation NMS thereunder.\121\
Section 11A of the Act directs the Commission, with due regard for the
public interest, the protection of investors, and the maintenance of
fair and orderly markets, to use its authority to facilitate the
establishment of a national market system for securities, including by
authorizing or requiring SROs to act jointly to plan, develop, operate,
or regulate an NMS plan. Rule 608(c) requires each SRO to comply with
the terms of any effective NMS plan of which it is a sponsor or a
participant. As discussed above, the Commission is considering whether
the proposed rule changes are consistent with Section 11A of the Act
\122\ and the rules and regulations thereunder, including Rule
608(c).\123\ The Commission also is considering whether the proposed
rule changes are consistent with Sections 11.1(d), 11.2(c), 11.3(b) and
11.6 of the CAT NMS Plan.\124\
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\119\ 15 U.S.C. 78s(b)(2)(B). Section 19(b)(2)(B) of the Act
also provides that proceedings to determine whether to disapprove a
proposed rule change must be concluded within 180 days of the date
of publication of notice of the filing of the proposed rule change.
See id. The time for conclusion of the proceedings may be extended
for up to 60 days if the Commission finds good cause for such
extension and publishes its reasons for so finding, or if the
exchanges consent to the longer period. See id.
\120\ 15 U.S.C. 78k-1.
\121\ 17 CFR 242.608(c).
\122\ See supra note 120.
\123\ See supra note 121.
\124\ See CAT NMS Plan, supra note 5, at Sections 11.1(d),
11.2(c), 11.3(b) and 11.6.
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V. Commission's Solicitation of Comments
The Commission requests written views, data, and arguments with
respect to the concerns identified above as well as any other relevant
concerns. Such comments should be submitted by July 15, 2021. Rebuttal
comments should be submitted by July 29, 2021. The Commission asks that
commenters address the sufficiency and merit of the Participants'
statements in support of the proposal, which are set forth in the
proposed rule changes,\125\ in addition to any other comments they may
wish to submit about the proposed rule changes.
---------------------------------------------------------------------------
\125\ See, e.g., Notice, supra note 3.
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Interested persons are invited to submit written data, views, and
arguments concerning the proposed rule changes, including whether the
proposed rule changes are consistent with the Act. Comments may be
submitted by any of the following methods:
Electronic Comments
<bullet> Use the Commission's internet comment form (<a href="http://www.sec.gov/rules/sro.shtml">http://www.sec.gov/rules/sro.shtml</a>); or
<bullet> Send an email to <a href="/cdn-cgi/l/email-protection#b3c1c6dfd69ed0dcdeded6ddc7c0f3c0d6d09dd4dcc5"><span class="__cf_email__" data-cfemail="9be9eef7feb6f8f4f6f6fef5efe8dbe8fef8b5fcf4ed">[email protected]</span></a>. Please include any
of: File Nos. SR-BX-2021-018; SR-C2-2021-008; SR-CBOE-2021-030; SR-
CboeBYX-2021-011; SR-CboeBZX-2021-034; SR-CboeEDGA-2021-010; SR-
CboeEDGX-2021-024; SR-GEMX-2021-03; SR-ISE-2021-08; SR-MRX-2021-05; SR-
NASDAQ-2021-029; or SR-PHLX-2021-25 on the subject line.
Paper Comments
<bullet> Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to any of: File Nos. SR-BX-2021-018; SR-
C2-2021-008; SR-CBOE-2021-030; SR-CboeBYX-2021-011; SR-CboeBZX-2021-
034; SR-CboeEDGA-2021-010; SR-CboeEDGX-2021-024; SR-GEMX-2021-03; SR-
ISE-2021-08; SR-MRX-2021-05; SR-NASDAQ-2021-029; or SR-PHLX-2021-25 on
the subject line. The file numbers should be included on the subject
line if email is used. To help the Commission process and review
[[Page 33454]]
your comments more efficiently, please use only one method. The
Commission will post all comments on the Commission's internet website
(<a href="http://www.sec.gov/rules/sro.shtml">http://www.sec.gov/rules/sro.shtml</a>). Copies of the submission, all
subsequent amendments, all written statements with respect to the
proposed rule changes that are filed with the Commission, and all
written communications relating to the proposed rule changes 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 Participants. 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 any of:
File Nos. SR-BX-2021-018; SR-C2-2021-008; SR-CBOE-2021-030; SR-CboeBYX-
2021-011; SR-CboeBZX-2021-034; SR-CboeEDGA-2021-010; SR-CboeEDGX-2021-
024; SR-GEMX-2021-03; SR-ISE-2021-08; SR-MRX-2021-05; SR-NASDAQ-2021-
029; or SR-PHLX-2021-25 and should be submitted on or before July 15,
2021. Rebuttal comments should be submitted by July 29, 2021.
VI. Conclusion
It is therefore ordered, pursuant to Section 19(b)(3)(C) of the
Act,\126\ that File Nos. SR-BX-2021-018; SR-C2-2021-008; SR-CBOE-2021-
030; SR-CboeBYX-2021-011; SR-CboeBZX-2021-034; SR-CboeEDGA-2021-010;
SR-CboeEDGX-2021-024; SR-GEMX-2021-03; SR-ISE-2021-08; SR-MRX-2021-05;
SR-NASDAQ-2021-029; and SR-PHLX-2021-25 be and hereby are, temporarily
suspended. In addition, the Commission is instituting proceedings to
determine whether the proposed rule changes should be approved or
disapproved.
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\126\ 15 U.S.C. 78s(b)(3)(C).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\127\
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\127\ 17 CFR 200.30-3(a)(57) and (58).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-13247 Filed 6-23-21; 8:45 am]
BILLING CODE 8011-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.