[Federal Register Volume 85, Number 9 (Tuesday, January 14, 2020)]
[Notices]
[Pages 2212-2218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00358]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-87910; File No. S7-24-89]


Joint Industry Plan; Notice of Filing of the Forty-Seventh 
Amendment to the Joint Self-Regulatory Organization Plan Governing the 
Collection, Consolidation and Dissemination of Quotation and 
Transaction Information for Nasdaq-Listed Securities Traded on 
Exchanges on an Unlisted Trading Privileges Basis

January 8, 2020.
    Pursuant to Section 11A of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 608 of Regulation National Market System 
(``NMS'') thereunder,\2\ notice is hereby given that on November 25, 
2019,\3\ the Participants \4\ in the Joint Self-

[[Page 2213]]

Regulatory Organization Plan Governing the Collection, Consolidation 
and Dissemination of Quotation and Transaction Information for Nasdaq-
Listed Securities Traded on Exchanges on an Unlisted Trading Privileges 
Basis (``Nasdaq/UTP Plan'' or ``Plan'') filed with the Securities and 
Exchange Commission (``SEC'' or ``Commission'') a proposal to amend the 
Nasdaq/UTP Plan.\5\ The amendment represents the Forty-Seventh 
Amendment to the Plan (``Amendment''). As described in the Amendment, 
the Participants propose to adopt a confidentiality policy to provide 
guidelines for the Operating Committee and the Advisory Committee of 
the Plan, and all subcommittees thereof, regarding the confidentiality 
of any data or information generated, accessed, or transmitted to the 
Operating Committee, as well as discussions occurring at a meeting of 
the Operating Committee or any subcommittee. According to the 
Participants, the confidentiality policy is designed broadly (i) to 
protect against any potential misuse of confidential information, which 
includes, but is not limited to, protecting confidential information 
obtained or generated by the Administrator and Processor in connection 
with the operation of the Plan as well as (ii) to allow the Operating 
Committee to disclose confidential information to the Advisory 
Committee to obtain its input without concern that such confidential 
information may be shared beyond the Advisory Committee. The 
Participants believe that the proposed Amendment will allow for more 
sharing of information with the Advisory Committee regarding the 
operation of the Plan and elicit more input by the Advisory Committee 
on Plan matters that might otherwise be deemed confidential.\6\
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    \1\ 15 U.S.C. 78k-1(a)(3).
    \2\ 17 CFR 242.608.
    \3\ See Letter from Robert Books, Chairman, Operating Committee, 
Nasdaq/UTP Plan, to Vanessa Countryman, Secretary, Commission, dated 
November 19, 2019 (``Transmittal Letter'').
    \4\ The Participants are the national securities association and 
national securities exchanges that submit trades and quotes to the 
Plan and include: Cboe BYX Exchange, Inc., Cboe BZX Exchange, Inc., 
Cboe EDGA Exchange, Inc., Cboe EDGX Exchange, Inc., Cboe Exchange, 
Inc., Financial Industry Regulatory Authority, Inc., The Investors' 
Exchange LLC, Long-Term Stock Exchange, Inc., Nasdaq BX, Inc., 
Nasdaq ISE, LLC, Nasdaq PHLX, Inc., The Nasdaq Stock Market LLC, New 
York Stock Exchange LLC, NYSE American LLC, NYSE Arca, Inc., NYSE 
Chicago, Inc., and NYSE National, Inc. (each a ``Participant'' and 
collectively, the ``Participants''). Participants also are members 
of the Plan's Operating Committees. Other parties include the 
``Processor,'' who is charged with collecting, processing and 
preparing for distribution or publication all Plan information. The 
``Administrator'' is charged with administering the Plan to include 
data feed approval, customer communications, contract management, 
and related functions. ``Advisory Committee members'' are 
individuals who represent particular types of financial services 
firms or actors in the securities market, and who were selected by 
Plan participants to be on the Advisory Committee A list of the 
Processor, Administrator, and Advisory Committee members is 
available at http://www.utpplan.com/governance.
    \5\ The Plan governs the collection, processing, and 
dissemination on a consolidated basis of quotation information and 
transaction reports in Eligible Securities for its Participants. 
This consolidated information informs investors of the current 
quotation and recent trade prices of Nasdaq securities. It enables 
investors to ascertain from one data source the current prices in 
all the markets trading Nasdaq securities. The Plan serves as the 
required transaction reporting plan for its Participants, which is a 
prerequisite for their trading Eligible Securities. See Securities 
Exchange Act Release No. 55647 (April 19, 2007), 72 FR 20891 (April 
26, 2007).
    \6\ See Transmittal Letter at 1.
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    The proposed Amendment has been filed by the Participants pursuant 
to Rule 608(b)(2) under Regulation NMS.\7\ The Commission is publishing 
this notice to solicit comments from interested persons on the proposed 
Amendment.
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    \7\ 17 CFR 242.608(b)(2).
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    The Commission notes that, contemporaneously with the issuance of 
this notice, it has issued a notice of proposed order (``Governance 
Notice'') \8\ soliciting public comment on a proposed order that would 
direct the national securities exchanges and the Financial Industry 
Regulatory Authority, Inc. (collectively, ``SROs'') to act jointly in 
developing and filing with the Commission a proposed new single 
national market system plan, which will replace the existing national 
market system plans that govern the public dissemination of real-time, 
consolidated equity market data for national market system stocks 
(``Equity Data Plans''). The Commission stated in the Governance Notice 
its view that, among other concerns,

    \8\ See Securities Exchange Act Release No. 87906 (January 8, 
2020).
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    [i]n the operation of the Equity Data Plans, Participants and 
Participant representatives have been privy to confidential and 
proprietary information of substantial commercial or competitive 
value, including, among other things, information about core data 
usage, the [securities information processors' or] SIPs' customer 
lists, financial information, and subscriber audit results. However, 
the terms of the Equity Data Plans do not address commercial use of 
confidential or proprietary information by the Participants.\9\

    \9\ Id. at A-67 (footnotes omitted).
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    The Governance Notice solicits public comment on a proposed order 
that would direct the SROs to include provisions in the New Data Plan 
(as defined in the Governance Notice) addressing several issues arising 
from the current governance structure of the Plan, and discusses the 
Commission's view that the new data plan should include provisions 
regarding the treatment of confidential information.
    In addition, contemporaneously with the publication of notice of 
the Amendment set forth below, the Commission also is publishing a 
separate proposed amendment from the Plan concerning a conflicts of 
interest policy.

I. Text of the Amendment

    Set forth below is the entirety of the Amendment submission that 
the Participants filed with the Commission, which includes a statement 
of the purpose and summary of the Amendment, along with the information 
required by Rules 608(a) and 601(a) under the Act.\10\
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    \10\ See 17 CFR 242.608(a)(4) and (a)(5).
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A. Purpose of the Amendment

1. Background
    Under the provisions of the Plan, the Advisory Committee has the 
right to attend all meetings of the Operating Committee and receive any 
information concerning Plan matters distributed to the Operating 
Committee. The Advisory Committee also can attend meetings of most 
subcommittees. The Operating Committee, however, may meet in Executive 
Session without the Advisory Committee to discuss items that require 
confidential treatment, as determined by majority vote of the Operating 
Committee. Last year, the Participants adopted an Executive Session 
Policy, which provides a specified list of topics that are appropriate 
for Executive Session. Those topics include:
     Fees that require discussion of confidential financial 
information;
     subscriber audit findings;
     discussions that require the disclosure of Material Non-
Public Information;
     financial reports containing confidential financial 
information;
     the portion of a discussion or evaluation of administrator 
and processor performance that includes confidential, non-public 
information;
     contract negotiations, awards, and revocations that 
contain non-public information;
     Advisory Committee member selection;
     litigation matters; and
     confidential, non-public discussions with the SEC.
    The Participants currently use Executive Sessions sparingly to 
discuss confidential information. When used, the Executive Session 
usually lasts less than thirty minutes and is used to discuss a limited 
set of topics, often consisting of a single, discrete topic. Although 
the Executive Session is sparingly used, the Participants are now 
seeking additional ways to include the Advisory Committee in more 
discussions and to share additional confidential information with the 
Advisory Committee.
    Therefore, the Participants are proposing a confidentiality policy 
to

[[Page 2214]]

allow the Operating Committee to share confidential information with 
the Advisory Committee without concern that such information would be 
more broadly disseminated. By sharing information that would in the 
ordinary course be considered appropriate for confidential treatment, 
the Participants believe that the Advisory Committee will be able to 
provide more informed advice and recommendations with respect to the 
operation and governance of the Plan. Further, the confidentiality 
policy is designed to protect against any potential misuse of 
confidential information by: (1) Restricting the use and dissemination 
of customer-related information; (2) requiring the Administrator and 
Processor to maintain confidential information policies that will be 
reviewed by the Operating Committee at least every two years; (3) 
permitting disclosure of confidential information by a representative 
of a Participant to other employees or agents of the Participant or its 
affiliates only as needed to perform that representative's function on 
behalf of the Participant; and (4) setting clear procedures regarding 
the treatment of various forms of confidential information.
    The Participants discussed this proposal extensively with the 
Advisory Committee and this proposal reflects input and comments from 
the members of the Advisory Committee.
2. Proposed Confidentiality Policy
    In an effort to expand the information that the Operating Committee 
may provide to the Advisory Committee, and also to provide guidelines 
about what information can and cannot be shared outside the meetings of 
the Operating Committee, the Participants are proposing to adopt a 
confidentiality policy.
    The proposed confidentiality policy would apply to all 
representatives of the Participants, Pending Participants, the UTP 
Administrator and Processor, and the Advisory Committee. Additionally, 
it would apply to agents of the Operating Committee, including, but not 
limited to, attorneys, advisors, accountants, contractors or 
subcontractors (``Agents''), as well as any third parties invited to 
attend meetings of the Operating Committee or Plan subcommittees. These 
persons are collectively defined in the confidentiality policy as 
``Covered Persons.'' \11\
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    \11\ Covered Persons would not include staff of the Commission.
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    The proposed confidentiality policy creates three categories of 
confidential information: (1) Restricted Information; (2) Highly 
Confidential Information; and (3) Confidential Information. Restricted 
Information is defined as (i) highly sensitive customer-specific 
financial information, (ii) customer-specific audit information, (iii) 
other customer financial information, and (iv) Personal Identifiable 
Information. Highly Confidential Information is defined as (i) any data 
or information shared in an Executive Session or that would otherwise 
qualify for confidential treatment pursuant to the Plan's Executive 
Session Policy; \12\ and (ii) any other highly sensitive Participant-
specific, customer-specific, individual-specific, or otherwise 
sensitive information relating to the Operating Committee, 
Participants, or customers that is not otherwise Restricted 
Information. Highly Confidential Information includes: A Participant's 
contract negotiations with the Processor or Administrator; personnel 
matters; information concerning the intellectual property of 
Participants or customers; and any document subject to the Attorney-
Client Privilege or Work Product Doctrine. Finally, Confidential 
Information is defined as (i) any non-public data or information 
designated as Confidential by a majority vote of the Operating 
Committee; (ii) any document generated by a Participant or Advisor and 
designated by that Participant or Advisor as Confidential; (iii) the 
minutes of the Operating Committee or any subcommittee thereof unless 
approved by the Operating Committee for release to the public; and (iv) 
the individual views and statements of Covered Persons and SEC staff 
disclosed during a meeting of the Operating Committee or any 
subcommittees thereunder.
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    \12\ Although Highly Confidential Information includes data or 
information shared in an Executive Session, the Participants plan on 
including more information in General Session rather than Executive 
Session. The proposed confidentiality policy allows the Participants 
to share more sensitive information with the Advisory Committee 
without concerns that such information would be more broadly 
disseminated. Therefore, the Participants intend to share additional 
information, previously designated for Executive Session, with the 
Advisory Committee, including confidential financial information.
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    The confidentiality policy outlines the procedures with respect to 
identifying documents as Restricted, Highly Confidential, or 
Confidential as well as the procedures regarding how to treat documents 
and information in each category. With respect to general procedures, 
the confidentiality policy places the obligation on the Administrator 
and the Processor to be the custodian of all documents and to maintain 
the classification of such documents. The Administrator will ensure 
that all documents are properly labeled with the appropriate category. 
The Administrator may, under delegated authority, designate documents 
as Restricted, Highly Confidential, or Confidential, which will be 
determinative unless altered by a majority vote of the Operating 
Committee. Finally, all contracts between the Operating Committee and 
its Agents will require the Operating Committee information to be 
treated as Confidential Information that may not be disclosed to third 
parties, except as necessary to effect the terms of the contract or as 
required by law.
3. Procedures Governing Restricted Information
    With respect to Restricted Information, the proposed 
confidentiality policy provides that such information will be kept in 
confidence by the Administrator and Processor and will not be disclosed 
to the Operating Committee or any subcommittee thereof, or during 
Executive Session, or the Advisory Committee, except in the following 
circumstances:
    1. If an Administrator determines that it is appropriate to share a 
customer's financial information with the Operating Committee or a 
subcommittee thereof, the Administrator will first anonymize the 
information by redacting the customer's name and any other information 
that may lead to the identification of the customer.
    2. The Administrator may disclose the identity of a customer that 
is the subject of the Restricted Information in Executive Session only 
if the Administrator determines in good faith that it is necessary to 
disclose the customer's identity in order to obtain input or feedback 
from the Operating Committee or a subcommittee thereof about a matter 
of importance to the Plan. In such an event, the Administrator will 
change the designation of the information at issue from ``Restricted 
Information'' to ``Highly Confidential Information.''
    3. The Administrator may share Restricted Information related to 
any willful, reckless, or grossly negligent conduct by a customer 
discovered by the Administrator with the UTP Administrator or with the 
SEC, as appropriate, upon majority vote of the Operating Committee in 
Executive Session, provided that, in any report by the Administrator 
during Executive Session related to such disclosure, the Administrator 
anonymizes the information related to the wrongdoing

[[Page 2215]]

by removing the names of the party or parties involved, as well as any 
other information that may lead to the identification of such party or 
parties.
    The Participants believe that the procedures governing Restricted 
Information will ensure the protection of customer identities and 
customer-related information, and such information will be disclosed 
only when necessary to conduct Plan-related business.
4. Procedures Governing Highly Confidential Information
    With respect to Highly Confidential Information, the proposed 
confidentiality policy provides that such information may be disclosed 
only in Executive Session of the Operating Committee or to the Legal 
Subcommittee. Highly Confidential Information may also be disclosed to 
SEC staff, unless it is protected by the Attorney-Client Privilege or 
the Work Product Doctrine. Any disclosure of Highly Confidential 
Information to SEC staff will be accompanied by a FOIA Confidential 
Treatment Request. The confidentiality policy does not permit any other 
disclosure of Highly Confidential Information.
    In addition, a Covered Person that is a representative of a 
Participant may disclose Highly Confidential Information to other 
employees or agents of the Participant or its affiliates only as needed 
for such Covered Person to perform his or her function on behalf of the 
Participant, as reasonably determined by the Covered Person. A copy of 
the confidentiality policy will be made available to recipients of such 
information who are employees or agents of a Participant or its 
affiliates that are not Covered Persons, who will be required to abide 
by the confidentiality policy.
    Further, because of the heightened concerns regarding the 
disclosure of Highly Confidential Information, in the event a Covered 
Person is determined by a majority vote of the Operating Committee to 
have disclosed Highly Confidential Information, the Operating Committee 
will determine the appropriate remedy for the breach based on the facts 
and circumstances of the event. For the representatives of a 
Participant, appropriate remedies include a letter of complaint 
submitted to the SEC, which may be made public by the Operating 
Committee. For a member of the Advisory Committee, appropriate remedies 
include removal of that member from the Advisory Committee.
5. Procedures Governing Confidential Information
    Under the proposed confidentiality policy, Confidential Information 
may be disclosed to the Operating Committee, any subcommittee thereof, 
and the Advisory Committee. A Covered Person may not disclose 
Confidential Information to any individual that is not either a Covered 
Person or a member of the SEC staff, except with authorization of the 
Operating Committee, or as may be otherwise required by law. The 
Operating Committee or a subcommittee thereof may authorize the 
disclosure of Confidential Information by an affirmative vote of the 
number of members that represent a majority of the total number of 
members of the Operating Committee or subcommittee. However, with 
respect to Confidential Information that is generated by a Participant 
or member of the Advisory Committee, the Operating Committee may 
authorize its disclosure only with the consent of such Participant or 
member of the Advisory Committee.
    In order to elicit industry feedback, members of the Advisory 
Committee may be authorized by the Operating Committee to disclose 
particular Confidential Information to enable them to consult with 
third-party industry representatives or technical experts, provided 
that the member of the Advisory Committee takes any steps requested by 
the Operating Committee to prevent further dissemination of that 
Confidential Information, including providing the individuals consulted 
with a copy of the confidentiality policy and requesting that person to 
maintain the confidentiality of such information in a manner consistent 
with the confidentiality policy.
    A Covered Person that is a representative of a Participant may 
disclose Confidential Information to other employees or agents of the 
Participant or its affiliates only as needed for such Covered Person to 
perform his or her function on behalf of the Participant, as reasonably 
determined by the Covered Person. A copy of the confidentiality policy 
will be made available to recipients of such information who are 
employees or agents of a Participant or its affiliates that are not 
Covered Persons, who will be required to abide by the confidentiality 
policy.
    A Covered Person may disclose his or her own individual views and 
statements that may otherwise be considered Confidential Information 
without obtaining authorization of the Operating Committee provided 
that the Covered Person is not disclosing the views or statements of 
any other Covered Person or Participant that are considered 
Confidential Information.
    Finally, a Covered Person that discloses Confidential Information 
without the authorization of the Operating Committee will report such 
disclosure to the Chair of the Operating Committee. Such unauthorized 
disclosure of Confidential Information will be recorded in the minutes 
of the meeting of the Operating Committee and will contain: (a) The 
name(s) of the person(s) who disclosed such Confidential Information, 
and (b) a description of the Confidential Information disclosed. The 
name(s) of the person(s) who disclosed such Confidential Information 
will also be recorded in any publicly available summaries of Operating 
Committee minutes.

B. Governing or Constituent Documents

    Not applicable.

C. Implementation of Amendment

    Each of the Participants has approved the amendment in accordance 
with Section IV.C of the UTP Plan. The Participants also received and 
incorporated feedback from the Advisory Committee in preparing the 
confidentiality policy.

D. Development and Implementation Phases

    Not applicable.

E. Analysis of Impact on Competition

    The Participants believe that the proposed amendment does not 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act.
    The Participants believe that the proposed confidentiality policy 
will provide enhanced disclosure to the Advisory Committee regarding 
matters that the Participants consider confidential information. 
Currently, the Plan allows information to be discussed in Executive 
Session when the Operating Committee determines that an item of Plan 
business requires confidential treatment. Despite the confidential 
nature of the information, the Participants believe that inclusion of 
the Advisory Committee in certain discussions that involve confidential 
information would be beneficial for the operation and governance of the 
Plan.
    The confidentiality policy allows such information to be more 
freely shared with the Advisory Committee without concerns that the 
confidential information will be disseminated more broadly. 
Additionally, the confidentiality policy provides guidance

[[Page 2216]]

to the representatives of Participants on how to treat confidential 
information that they obtained through the course of participating on 
the Operating Committee, thereby reducing confusion among the 
representatives of the Participants. Finally, by requiring Agents of 
the Operating Committee to adhere to the confidentiality policy, the 
confidentiality policy will ensure that such Agents will be subject to 
the same requirements as the Operating Committee when handling 
confidential information.
    Additionally, the proposed confidentiality policy will protect 
customer-specific information in the possession of the Administrator 
and Processor. The procedures surrounding the use of Restricted 
Information will help to ensure that the dissemination of Restricted 
Information is limited to instances when necessary for the operation of 
the Plan. Further, the confidentiality policy requires the 
Administrator and Processor to establish written confidential 
information policies that provide for the protection of information 
under their control. Therefore, the confidentiality policy is designed 
to protect confidential information obtained or generated by the 
Administrator and Processor in connection with the operation of the 
Plan.
    Finally, as noted above, the proposal was vetted With the Advisory 
Committee to include its input into a policy that would enhance the 
amount of information available to the Advisory Committee.

F. Written Understanding or Agreement Relating to Interpretation of, or 
Participating in Plan

    Not applicable.

G. Approval by Sponsors in Accordance With Plan

    Section IV.C.1 of the UTP Plan require the Participants to 
unanimously approve the amendment proposed herein. They have so 
approved it.

H. Description of Operation of Facility Contemplated by the Proposed 
Amendment

    Not applicable.

I. Terms and Conditions of Access

    Not applicable.

J. Method of Determination and Imposition and Amount of, Fees and 
Charges

    Not applicable.

K. Method and Frequency of Processor Evaluation

    Not applicable.

L. Dispute Resolution

    Not applicable.

II. Regulation NMS Rule 601(a)

A. Equity Securities for Which Transaction Reports Shall be Required by 
the Plan

    Not applicable.

B. Reporting Requirements

    Not applicable.

C. Manner of Collecting, Processing, Sequencing, Making Available and 
Disseminating Last Sale Information

    Not applicable.

D. Manner of Consolidation

    Not applicable.

E. Standards and Methods Ensuring Promptness, Accuracy and Completeness 
of Transaction Reports

    Not applicable.

F. Rules and Procedures Addressed to Fraudulent or Manipulative 
Dissemination

    Not applicable.

G. Terms of Access to Transaction Reports

    Not applicable.

H. Identification of Marketplace of Execution

    Not applicable.

III. Solicitation of Comments

    The Commission seeks comments on the Amendment. Interested persons 
are invited to submit written data, views, and comments concerning the 
foregoing, including whether the Amendment is consistent with the Act 
and the rules thereunder. Among other things, the Commission asks 
commenters to consider whether the Amendment to the current Plan 
addresses the concerns outlined in the Governance Notice or whether 
they should be further enhanced regarding the identification and 
protection of confidential information. Accordingly, the Commission 
requests comments on matters including, but not limited to, the 
following:
    1. Do commenters believe that Participants involved in the 
operation or governance of each Plan have, by consequence of their 
position, access to information of substantial commercial and 
competitive value? If so, do commenters believe that certain of that 
information, including customer-specific financial information, 
customer-specific audit information, personally identifiable 
information, and information concerning the intellectual property of 
Participants or customers, is highly sensitive to such a degree that 
its possession and use should be more tightly controlled? Please 
explain. For example, should the Amendment require logs and written 
attestations when a Covered Person shares Highly Confidential 
Information with other employees or agents of the Participant or its 
affiliates? Do commenters believe the Amendment should specifically 
address commercial use of information that is of substantial 
competitive value?
    2. Do commenters believe that Participants' representatives should 
be subject to restrictions and/or information barriers as part of the 
confidentiality policy to address their direct or indirect involvement 
in the development or sale of proprietary data products to SIP 
customers? For example, do commenters believe that Participants' access 
to a list of the Processor's customers as well as information on those 
customers' data usage and fees paid to the Plan has competitive 
implications? Do commenters believe that the Plan should require 
recusal in certain circumstances (e.g., during Executive Sessions or 
Operating Committee meetings) because the potential for misuse of 
competitively sensitive confidential information is too great? If so, 
what should those circumstances be? Do commenters believe that any 
Participant or Advisory Committee member that is directly involved in 
the management, sale, or development of similar proprietary market data 
products that may be sold to customers of the SIPs should have access 
to any customer information from the SIPs? Do commenters believe that 
Operating Committee members, as well as the Administrator, Processor, 
and auditor should be prohibited, unless otherwise required by law, 
from sharing confidential information with individuals that are not 
involved with the operation of the Plan and individuals employed by or 
affiliated with the same entity if such individuals are involved in the 
management, sale, or development of proprietary data products that are 
offered separately to a substantially similar customer base, i.e., 
customers or potential customer of the SIPs? Would these concerns also 
be present for the sale of related data products that are supplemental 
to SIP data?
    3. Do commenters believe that the Plan should require all 
Participants and other Covered Persons to establish, maintain, and 
enforce policies and procedures to safeguard confidential and 
proprietary information received via their participation in the Plan 
and to

[[Page 2217]]

prevent its misuse by such Participants or entities controlling, 
controlled by, or under common control with such Participants? If so, 
do commenters believe the proposed Amendment sufficiently achieves that 
goal?
    4. Do commenters believe the proposed guidelines and procedures for 
identifying and categorizing types of confidential information, 
including for providing increasing degrees of protection for more 
sensitive types of confidential information, provide sufficient detail 
and a sufficiently comprehensive process and procedures to identify, 
classify, and subsequently protect confidential information? Or do 
commenters believe that further efforts are necessary to identify, 
categorize, and protect confidential information and/or information of 
substantial competitive or commercial value? Do commenters believe that 
a need may arise for information or data that are not initially 
categorized as confidential to be categorized as such at a later point 
in time and, if so, what should the process be for doing so? For 
example, should the Operating Committee be able to classify or de-
classify material as appropriate based on a majority vote?
    5. Do commenters believe that the Administrator and Processor 
should be solely responsible for classifying material according to the 
proposed standards? Or do commenters believe the decisions of the 
Administrator and Processor should be subject to review, for example 
upon the request of a member of the Operating Committee? Do commenters 
believe that potential conflicts of interest should preclude the 
Administrator and Processor from solely and independently making 
classification determinations in those circumstances when entities with 
which they are directly or indirectly affiliated separately offer 
proprietary data products to a substantially similar customer base, 
i.e., customers or potential customers of the SIPs?
    6. Do commenters believe that certain information or data 
generated, accessed, transmitted to, or discussed by the Operating 
Committee, such as information regarding contract negotiations with a 
potential new Processor, Administrator, auditor, or other third party 
service provider, should be designated as confidential and, if so, what 
level of confidentiality should such information be afforded?
    7. Do commenters believe that information shared in Executive 
Sessions should be classified as Highly Confidential simply by virtue 
of it having been shared in an Executive Session, or should such 
information be classified based solely on its content and competitive 
sensitivity?
    8. Do commenters believe that information that is not classified at 
some level of confidentiality should be considered public and may be 
shared freely outside of the Operating Committee? What specific 
information do commenters believe should be considered public and 
shared outside of the Operating Committee?
    9. Do commenters believe that the proposed guidelines and 
procedures setting forth the circumstances in which disclosure of 
confidential information may be authorized are sufficiently clear and 
comprehensive? Do commenters believe that the proposed provisions 
allowing Participants to disclose confidential and highly confidential 
information to other employees or agents of the Participant or its 
affiliates as needed as they reasonably determine is appropriate? Or do 
commenters believe that, if a Participant is either employed by or 
affiliated with an entity that offers proprietary data products that 
are offered for sale to a substantially similar customer base (i.e., 
customer or potential customers of the SIPs), that Participant should 
be required to develop policies and procedures that govern the sharing 
of confidential information? Do commenters believe such policies and 
procedures should be reviewed by the Operating Committee and Advisors 
and made publicly available via the Plan's website? Do commenters 
believe that the potential conflicts of interest involved and the 
difficulty of mitigating the potential harm and potential burdens on 
competition are so great that Participants should be explicitly 
prohibited from disclosing restricted and confidential information at 
all or only if authorized to do so on a case-by-case basis from the 
Operating Committee, unless such disclosure is otherwise required by 
law? If disclosure is required by law, should the Covered Person be 
required to first notify the Operating Committee (e.g., to provide the 
Operating Committee with an opportunity to redact information if 
permitted by applicable law or to dispute the requirement to provide in 
its entirety)?
    10. Do commenters believe that certain confidential information may 
become less sensitive if it is anonymized and aggregated? If so, do 
commenters believe that certain types of restricted or highly 
confidential information could be anonymized and aggregated to the 
point where it could be classified as public? What methodology for 
anonymizing confidential information would commenters suggest, and 
should the methodology be standardized such that the Administrator, 
Processor, and auditor all follow a consistent practice for anonymizing 
such information? Do commenters believe that certain information is so 
sensitive, whether anonymized or not, that it should never be shared 
outside of the Operating Committee or outside of the Administrator?
    11. Do commenters believe that the scope of the proposed Amendment 
is sufficiently comprehensive to cover all parties that might have 
access to confidential information, or should the scope be broadened to 
apply to additional classes of persons? For example, should outsourced 
service providers (including, but not limited to, firms and persons 
that provide audit services, accounting services, or legal services to 
the Plan, the Administrator, or the Processor) be subject to additional 
restrictions, particularly if they are directly or indirectly 
affiliated with a Participant, the Administrator, the Processor, or any 
entity that offers separately proprietary data products to a 
substantially similar customer base, i.e., customers or potential 
customers of the SIPs? If so, should the Plan explicitly preclude 
itself from engaging with an Administrator, Processor, auditor, or any 
agents or third parties thereof, unless the entity establishes, 
maintains, and enforces policies and procedures to safeguard 
confidential and proprietary information and to prevent its direct or 
indirect misuse? If so, should the Operating Committee review those 
policies and procedures and/or should they be made public (i.e., 
provided on the Plan's website)? For example, if the Administrator 
oversees a Plan's audit function (directly or through an agent or third 
party) but also is affiliated with an entity that sells proprietary 
data products to SIP customers, do commenters believe that potential 
conflicts of interest should preclude the Administrator from 
independently determining its own confidential information policies as 
they apply to the audit function? Or, should such policies be subject 
to review and approval by the Operating Committee, and be posted 
publicly, to help ensure their adequacy and completeness?
    12. Do commenters believe that Advisory Committee members need 
access to sensitive information of substantial commercial and 
competitive value in order to perform their duties? Do commenters 
believe that the Advisory Committee members need access to underlying 
information relied on by the Participants when making

[[Page 2218]]

decisions on funding of and improvements for the SIPs?
    13. Do commenters believe the proposed remedy in the event that a 
Covered Person discloses ``Highly Confidential Information'' in a 
manner inconsistent with the proposed policy is sufficient, or should 
any other consequences of such disclosure be provided?
    14. Similarly, do commenters believe the Amendment would 
sufficiently deter unauthorized disclosure of ``Confidential 
Information'' by a Covered Person without authorization by the 
Operating Committee? Do commenters believe appropriate remedies for 
Participants and Advisors should differ, or should potential remedies 
for Participants that disclose confidential information also include 
the possibility of removal of that Participant from the Operating 
Committee?
    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 rule-comments@sec.gov. Please include 
File Number S7-24-89 on the subject line.

Paper Comments

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

All submissions should refer to File Number S7-24-89. 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 website (http://www.sec.gov/rules/sro.shtml). Copies of 
the submission, all written statements with respect to the proposed 
Amendment that are filed with the Commission, and all written 
communications relating to the proposed Amendment 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 3:00p.m. Copies of 
the filing also will be available for website viewing and printing at 
the principal office of the Plan. 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 File Number S7-24-
89 and should be submitted on or before February 4, 2020.

    By the Commission.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2020-00358 Filed 1-13-20; 8:45 am]
BILLING CODE 8011-01-P


