Notice2022-14983
In the Matter of the: Order Granting Temporary Conditional Exemptive Relief Pursuant to Section 36 of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 608(e) of Regulation NMS Under the Exchange Act, Relating to Certain Requirements of the National Market System Plan Governing the Consolidated Audit Trail; In the Matter of the: Order Granting Temporary Conditional Exemptive Relief Pursuant to Section 36 of the Exchange Act and Rule 608(e) of Regulation NMS Under the Exchange Act, From Section 8.1.1 and Section 8.1.2 of Appendix D of the National Market System Plan Governing the Consolidated Audit Trail; Order Denying Stay
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Published
July 14, 2022
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 87 Issue 134 (Thursday, July 14, 2022)</title>
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[Federal Register Volume 87, Number 134 (Thursday, July 14, 2022)]
[Notices]
[Pages 42242-42243]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-14983]
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SECURITIES AND EXCHANGE COMMISSION
[Securities Exchange Act of 1934: Release No. 34-95235/July 8, 2022]
In the Matter of the: Order Granting Temporary Conditional
Exemptive Relief Pursuant to Section 36 of the Securities Exchange Act
of 1934 (``Exchange Act'') and Rule 608(e) of Regulation NMS Under the
Exchange Act, Relating to Certain Requirements of the National Market
System Plan Governing the Consolidated Audit Trail; In the Matter of
the: Order Granting Temporary Conditional Exemptive Relief Pursuant to
Section 36 of the Exchange Act and Rule 608(e) of Regulation NMS Under
the Exchange Act, From Section 8.1.1 and Section 8.1.2 of Appendix D of
the National Market System Plan Governing the Consolidated Audit Trail;
Order Denying Stay
On December 16, 2020, the Commission issued two orders pursuant to
Section 36 of the Exchange Act and Rule 608(e) of Regulation NMS under
the Exchange Act: (1) an Order Granting Temporary Conditional Exemptive
Relief Pursuant to Section 36 of the Exchange Act and Rule 608(e) of
Regulation NMS Under the Exchange Act Relating to Certain Requirements
of the National Market System Plan Governing the Consolidated Audit
Trail, Release No. 34-90688 (Dec. 16, 2020) (the ``First Order''); and
(2) an Order Granting Temporary Conditional Exemptive Relief Pursuant
to Section 36 of the Exchange Act and Rule 608(e) of Regulation NMS
Under the Exchange Act From Section 8.1.1 and Section 8.1.2 of Appendix
D of the National Market System Plan Governing the Consolidated Audit
Trail, Release No. 34-90689 (Dec. 16, 2020) (the ``Second Order'')
(together, the ``prior Orders''). On February 14, 2021, Petitioner
Consolidated Audit Trail, LLC (``Petitioner'' or ``CAT LLC''), on
behalf of itself and a majority of the Participants in the National
Market System Plan Governing the Consolidated Audit Trail (``CAT NMS
Plan'' or ``Plan'') (together, ``Petitioners'') \1\ filed with the
Commission the pending motions for partial stays of the prior Orders.
That same day, Petitioners \2\ filed petitions in the U.S. Court of
Appeals for the District of Columbia Circuit seeking review of the
Orders. See Case Nos. 21-1065, 21-1066. Petitioners sought a partial
stay of the prior Orders until the Commission ``had an opportunity to
consider all the Participants' arguments and supporting evidence'' and
``reevaluate whether the Order[s] [are] appropriate in light of that
information,'' or, in the alternative, pending resolution of the
petitions for judicial review. Since that time, the Participants and
Commission staff have been engaged in ongoing discussions with the goal
of resolving or narrowing their differences with respect to the issues
raised in the Participants' stay motions. On January 12, 2022, the
Participants requested that the Commission supplement the record to
include certain additional materials prepared in connection with those
discussions.\3\
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\1\ The Participants joining the motion include BOX Exchange
LLC; Cboe BYX Exchange, Inc., Cboe BZX Exchange, Inc., Cboe EDGA
Exchange, Inc., Cboe EDGX Exchange, Inc., Cboe C2 Exchange, Inc. and
Cboe Exchange, Inc.; Investors Exchange LLC; 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; and
New York Stock Exchange LLC, NYSE American LLC, NYSE Arca, Inc.,
NYSE Chicago, Inc., and NYSE National, Inc. Participants FINRA and
Long-Term Stock Exchange, Inc. did not approve the stay motions.
\2\ The following Participants joined in the stay motions but
did not approve the filing of a petition for judicial review:
Investors Exchange LLC, MEMX LLC, Miami International Securities
Exchange LLC, MIAX Emerald, LLC, and MIAX PEARL, LLC. Participants
FINRA and Long-Term Stock Exchange, Inc. did not approve the stay
motions or the filing of a petition for judicial review.
\3\ See Letter from K. King, Counsel for Consolidated Audit
Trail, LLC, Covington & Burling LLP, to Vanessa Countryman,
Secretary, Commission (January 12, 2022).
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On July 8, 2022, after careful review of the arguments and evidence
proffered by the Participants, the Commission issued an Order Granting
Temporary Conditional Exemptive Relief, Pursuant to Section 36 of the
Exchange Act and Rule 608(e) of Regulation NMS under the Exchange Act,
from Certain Requirements of the National Market System Plan Governing
the Consolidated Audit Trail (the ``Third Order''), which supersedes
the prior Orders. The Third Order clarifies certain aspects of the
prior Orders and modifies
[[Page 42243]]
other aspects of the prior Orders in light of subsequent developments
and/or additional information provided by the Participants. It also
gives the Participants until July 31, 2024 to either come into
compliance with the relevant provisions of the CAT NMS Plan or to
develop alternative solutions that achieve the regulatory goals of Rule
613 and the CAT NMS Plan in a more cost-effective manner. Because the
terms of the Third Order now govern, the terms of the prior Orders are
no longer in force, and the pending motions are moot.\4\
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\4\ On February 14, 2021, the Participants also filed a motion
for a protective order shielding from public disclosure certain
documents submitted in connection with their stay motions as well as
portions of the motions that refer to those documents, pursuant to
SEC Rule of Practice 322. Finding that the harm resulting from
disclosure of that material would outweigh the benefits of
disclosure, we grant the motion for a protective order.
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Accordingly, it is ordered that the motions for a stay of the prior
Orders be denied as moot.
By the Commission.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2022-14983 Filed 7-13-22; 8:45 am]
BILLING CODE 8011-01-P
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