[Federal Register Volume 86, Number 105 (Thursday, June 3, 2021)]
[Notices]
[Pages 29846-29849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11687]



[[Page 29846]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-92071; File No. S7-24-89]


Joint Industry Plan; Order Approving the Fiftieth 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, as Modified by Amendment Nos. 1 and 
2

May 28, 2021.

I. Introduction

    On February 11, 2021,\1\ 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 (``Nasdaq/
UTP Plan'' or ``Plan'') \2\ participants \3\ filed with the Securities 
and Exchange Commission (``SEC'' or ``Commission''), pursuant to 
Section 11A of the Securities Exchange Act of 1934 (``Act'') \4\ and 
Rule 608 of Regulation National Market System (``NMS'') thereunder,\5\ 
a proposal to amend the Nasdaq/UTP Plan. This amendment represents the 
Fiftieth Amendment to the Plan (``Amendment'').
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    \1\ See Letter from Robert Books, Chair, UTP Operating 
Committee, to Vanessa Countryman, Secretary, Commission (Feb. 11, 
2021). The Amendment was posted to the Plan's website on February 
12, 2021. See Email from James P. Dombach, Counsel to the Plan, to 
Michael E. Coe, Assistant Director, Commission (Feb. 12, 2021).
    \2\ 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 (Apr. 19, 2007), 72 FR 20891 (Apr. 
26, 2007).
    \3\ These participants are: 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., MEMX 
LLC, MIAX PEARL, LLC, 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'').
    \4\ 15 U.S.C. 78k-1(a)(3).
    \5\ 17 CFR 242.608.
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    The Amendment was published for comment in the Federal Register on 
March 1, 2021.\6\ One comment letter was received.\7\ On March 31, 
2021, a partial amendment was filed to correct an inadvertent error in 
the rule text.\8\ On April 7, 2021, a second partial amendment was 
filed to correct an inadvertent error in the rule text.\9\ This order 
approves the Amendment to the Plan, as modified by Amendment Nos. 1 and 
2.
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    \6\ See Securities Exchange Act Release No. 91190 (Feb. 23, 
2021), 86 FR 12045 (Mar. 1, 2021) (``Notice''); Securities Exchange 
Act Release No. 91190A (Mar. 3, 2021), 86 FR 13411) (Mar. 8, 2021) 
(correction of a typographical error in the header).
    \7\ Comments received in response to the Notice are available at 
https://www.sec.gov/comments/s7-24-89/s72489.shtml.
    \8\ See Letter from James P. Dombach, Counsel to the Plan, to 
Vanessa Countryman, Secretary, Commission (Mar. 31, 2021) (to 
correct language inadvertently omitted by the Participants in 
Section X.E.1 of the Plan, as amended, to state that ``[t]he Primary 
Listing Market will declare a resumption of trading when it makes a 
good-faith determination that trading may resume in a fair and 
orderly manner and in accordance with its rules.'') (``Amendment No. 
1'').
    \9\ See Letter from James P. Dombach, Counsel to the Plan, to 
Vanessa Countryman, Secretary, Commission (Apr. 7, 2021) (to correct 
language inadvertently omitted by the Participants from the last 
sentence in Section X.F.3 of the Plan, as amended, to state that 
``[o]utside Regular Trading Hours, a Participant may resume trading 
immediately after the SIP Halt Resume Time.'') (``Amendment No. 
2'').
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II. Description of the Proposal, as Modified by Amendment Nos. 1 and 2

    The Amendment proposes revisions to the Plan's provisions governing 
Regulatory Halts \10\ and Operational Halts.\11\ The Participants state 
that ``[t]he purpose of the amendment is to incorporate into the UTP 
Plan the same processes for Regulatory Halts that are proposed by the 
equity exchanges.'' \12\
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    \10\ The Amendment would define ``Regulatory Halt'' as ``a halt 
declared by the Primary Listing Market in trading in one or more 
securities on all Trading Centers for regulatory purposes, including 
for the dissemination of material news, news pending, suspensions, 
or where otherwise necessary to maintain a fair and orderly market. 
A Regulatory Halt includes a trading pause triggered by Limit Up 
Limit Down, a halt based on Extraordinary Market Activity, a trading 
halt triggered by a Market-Wide Circuit Breaker, and a SIP Halt.'' 
See Section X.A.10 of the Plan, as amended.
    \11\ The Amendment would define ``Operational Halt'' as ``a halt 
in trading in one or more securities only on a Market declared by 
such Participant and is not a Regulatory Halt.'' See Section X.A.7 
of the Plan, as amended.
    \12\ See Notice, supra note 6, 86 FR at 12046.
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A. Regulatory Halts

1. Declaration of a Regulatory Halt
    With respect to declaration of a Regulatory Halt, the Amendment 
would provide that the Primary Listing Market \13\ may declare a 
Regulatory Halt in trading for any security for which it is the Primary 
Listing Market (1) as provided for in the rules of the Primary Listing 
Market; \14\ (2) if it determines \15\ there is a SIP Outage,\16\ 
Material SIP Latency,\17\ or Extraordinary Market Activity; \18\ or (3) 
in the event of national, regional, or localized disruption that 
necessitates a Regulatory Halt to maintain a fair and orderly 
market.\19\
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    \13\ The Amendment would define ``Primary Listing Market'' as 
``the national securities exchange on which an Eligible Security is 
listed. If an Eligible Security is listed on more than one national 
securities exchange, Primary Listing Market means the exchange on 
which the security has been listed the longest.'' See Section X.A.8 
of the Plan, as amended.
    \14\ See Section X.C.1(a) of the Plan, as amended.
    \15\ See Section X.C.1(b) of the Plan, as amended.
    \16\ The Amendment would define ``SIP Outage'' as ``a situation 
in which the Processor has ceased, or anticipates being unable, to 
provide updated and/or accurate quotation or last sale price 
information in one or more securities for a material period that 
exceeds the time thresholds for an orderly failover to backup 
facilities established by mutual agreement among the Processor, the 
Primary Listing Market for the affected securities, and the 
Operating Committee unless the Primary Listing Market, in 
consultation with the Processor and the Operating Committee, 
determines that resumption of accurate data is expected in the near 
future.'' See Section X.A.13 of the Plan, as amended.
    \17\ The Amendment would define ``Material SIP Latency'' as ``a 
delay of quotation or last sale price information in one or more 
securities between the time data is received by the Processor and 
the time the Processor disseminates the data over Processor's vendor 
lines, which delay the Primary Listing Market determines, in 
consultation with, and in accordance with, publicly disclosed 
guidelines established by the Operating Committee, to be (a) 
material and (b) unlikely to be resolved in the near future.'' See 
Section X.A.5 of the Plan, as amended.
    \18\ The Amendment would define ``Extraordinary Market 
Activity'' as ``a disruption or malfunction of any electronic 
quotation, communication, reporting, or execution system operated 
by, or linked to, the Processor or a Trading Center or a member of 
such Trading Center that has a severe and continuing negative 
impact, on a market-wide basis, on quoting, order, or trading 
activity or on the availability of market information necessary to 
maintain a fair and orderly market. For purposes of this definition, 
a severe and continuing negative impact on quoting, order, or 
trading activity includes (i) a series of quotes, orders, or 
transactions at prices substantially unrelated to the current market 
for the security or securities; (ii) duplicative or erroneous 
quoting, order, trade reporting, or other related message traffic 
between one or more Trading Centers or their members; or (iii) the 
unavailability of quoting, order, transaction information, or 
regulatory messages for a sustained period.'' See Section X.A.1 of 
the Plan, as amended.
    \19\ See Section X.C.1(c) of the Plan, as amended.
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    The Amendment would further provide that, in determining whether to 
declare a Regulatory Halt, the Primary Listing Market will consider the 
totality of information available concerning the severity of the issue, 
its likely duration, and potential impact on Member Firms and other 
market participants, and will make a good-faith determination that the 
criteria to declare a Regulatory Halt have been satisfied and that a 
Regulatory Halt is appropriate.\20\ The

[[Page 29847]]

Amendment would also provide that, the Primary Listing Market will 
consult, if feasible, with the affected Trading Center(s), other 
Participants, or the Processor, as applicable, regarding the scope of 
the issue and what steps are being taken to address the issue, and that 
the Primary Listing Market will continue to evaluate the circumstances 
to determine when trading may resume in accordance with the rules of 
the Primary Listing Market.\21\
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    \20\ See Section X.C.2 of the Plan, as amended.
    \21\ See id. The Amendment would further provide that once a 
Regulatory Halt has been declared, the Primary Listing Market will 
continue to evaluate the circumstances to determine when trading may 
resume in accordance with the rules of the Primary Listing Market. 
See id.
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2. Initiating a Regulatory Halt
    The Amendment would specify procedures for initiating a Regulatory 
Halt. Specifically, when initiating a Regulatory Halt, the start time 
of a Regulatory Halt would be when the Primary Listing Market declares 
the halt, regardless of whether an issue with communications impacts 
the dissemination of the notice.\22\ The Amendment would further 
provide that if the Processor is unable to disseminate notice of a 
Regulatory Halt or the Primary Listing Market is not open for trading, 
the Primary Listing Market will take reasonable steps to provide notice 
of a Regulatory Halt, which shall include both the type and start time 
of the Regulatory Halt, by dissemination through: (1) Proprietary data 
feeds containing quotation and last sale price information that the 
Primary Listing Market also sends to the Processor; (2) posting on a 
publicly-available Participant website; or (3) system status 
messages.\23\ The Amendment would further specify that a Participant 
will halt trading for any security traded on its Market if the Primary 
Listing Market declares a Regulatory Halt for the security.\24\
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    \22\ See Section X.D.1 of the Plan, as amended.
    \23\ See Section X.D.2 of the Plan, as amended. The Amendment 
would further provide that, except in exigent circumstances, the 
Primary Listing Market will not declare a Regulatory Halt 
retroactive to a time earlier than the notice of such halt. See 
Section X.D.3 of the Plan, as amended.
    \24\ See Section X.G of the Plan, as amended.
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3. Resumption of Trading After a Regulatory Halt
    The Amendment would specify certain procedures for the resumption 
of trading following (1) Regulatory Halts other than a SIP Halts and 
(2) SIP Halts.\25\
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    \25\ The Amendment would define ``SIP Halt'' as ``a Regulatory 
Halt to trading in one or more securities that a Primary Listing 
Market declares in the event of a SIP Outage or Material SIP 
Latency.'' See Section X.A.11 of the Plan, as amended.
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a. Resumption of Trading After a Regulatory Halt Other Than a SIP Halt
    With respect to the resumption of trading after a Regulatory Halt 
other than a SIP Halt, the Amendment would provide that the Primary 
Listing Market will declare a resumption of trading when it makes a 
good-faith determination that trading may resume in a fair and orderly 
manner and in accordance with its rules.\26\ The Amendment would 
further provide that for a Regulatory Halt that is initiated by another 
Participant that is a Primary Listing Market, a Participant may resume 
trading after the Participant receives notification from the Primary 
Listing Market that the Regulatory Halt has been terminated.\27\
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    \26\ See Section X.E.1 of the Plan, as amended.
    \27\ See Section X.E.2 of the Plan, as amended.
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b. Resumption of Trading After a SIP Halt
    With respect to the resumption of trading after a SIP Halt, the 
Amendment would provide that the Primary Listing Market will determine 
the SIP Halt Resume Time.\28\ The Amendment would further provide that, 
in making such determination, the Primary Listing Market will make a 
good-faith determination and consider the totality of information to 
determine whether resuming trading would promote a fair and orderly 
market, including input from the Processor, the Operating Committee, or 
the operator of the system in question (as well as any Trading 
Center(s) to which such system is linked), regarding operational 
readiness to resume trading.\29\ The Amendment would also provide that 
the Primary Listing Market retains discretion to delay the SIP Halt 
Resume Time if it believes trading will not resume in a fair and 
orderly manner.\30\ Also with respect to termination of the SIP Halt, 
the Amendment would provide that the Primary Listing Market will 
terminate a SIP Halt with a notification that specifies a SIP Halt 
Resume Time.\31\ The Amendment would further provide that the Primary 
Listing Market shall provide a minimum notice of a SIP Halt Resume 
Time, as specified by the rules of the Primary Listing Market, during 
which period market participants may enter quotes and orders in the 
affected securities.\32\ Under the Amendment, the Primary Listing 
Market would be permitted to stagger the SIP Halt Resume Times for 
multiple symbols in order to reopen in a fair and orderly manner.\33\
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    \28\ See Section X.F.1 of the Plan, as amended. The Amendment 
would define ``SIP Halt Resume Time'' as ``the time that the Primary 
Listing Market determines as the end of a SIP Halt.'' See Section 
X.A.12 of the Plan, as amended.
    \29\ See id.
    \30\ See id.
    \31\ See Section X.F.2 of the Plan, as amended.
    \32\ See id. The Amendment would further provide that, during 
regular Trading Hours, the last SIP Halt Resume Time before the end 
of Regular Trading Hours shall be an amount of time as specified by 
the rules of the Primary Listing Market. See id.
    \33\ See id.
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    Finally, the Amendment would provide that during Regular Trading 
Hours, if the Primary Listing Market does not open a security within 
the amount of time as specified by the rules of the Primary Listing 
Market after the SIP Halt Resume Time, a Participant may resume trading 
in that security.\34\ Under the Amendment, a Participant may, outside 
Regular Trading Hours, resume trading immediately after the SIP Halt 
Resume Time.\35\
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    \34\ See Section X.F.3 of the Plan, as amended.
    \35\ See id.
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B. Communications

    The Amendment addresses communications regarding trading halts. 
Specifically, the Amendment would provide that, whenever in the 
exercise of its regulatory functions, the Primary Listing Market for an 
Eligible Security determines it is appropriate to initiate a Regulatory 
Halt, the Primary Listing Market will notify all other Participants and 
the Processor of such Regulatory Halt and will provide notice that a 
Regulatory Halt has been lifted using such protocols and other 
emergency procedures as may be mutually agreed to between the Operating 
Committee and the Primary Listing Market.\36\ The Amendment would 
further provide that the Processor shall disseminate to Participants 
notice of the Regulatory Halt (as well as notice of the lifting of a 
Regulatory Halt) through (i) the Quote Data Feed and the Trade Data 
Feed and (ii) any other means the Processor, in its sole discretion, 
considers appropriate. Under the Amendment, each Participant would be 
required to continuously monitor these communication protocols 
established by the Operating Committee and the Processor during market 
hours.\37\
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    \36\ See Section X.H of the Plan, as amended.
    \37\ See id. The Amendment would further provide that the 
failure of a Participant to continuously monitor such communication 
protocols as established by the Operating Committee and the 
Processor during market hours will not prevent the Primary Listing 
Market from initiating a Regulatory Halt in accordance with the 
procedures specified in the Amendment. See id.

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[[Page 29848]]

C. Operational Halts

    With respect to Operational Halts,\38\ the Amendment would provide 
that a Participant must notify the Processor if it has concerns about 
its ability to transmit Quotation Information or Transaction Reports, 
or where it has declared an Operational Halt or suspension of trading 
in one or more Eligible Securities, pursuant to the procedures adopted 
by the Operating Committee.\39\
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    \38\ See supra note 11 and accompanying text.
    \39\ See Section X.B. of the Plan, as amended.
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III. Discussion and Commission Findings

    After careful review, the Commission is approving the Amendment, as 
modified by Amendment Nos. 1 and 2, for the reasons discussed below. 
Section 11A of the Act authorizes the Commission, by rule or order, to 
authorize or require the self-regulatory organizations to act jointly 
with respect to matters as to which they share authority under the Act 
in planning, developing, operating, or regulating a facility of the 
national market system.\40\ Pursuant to this authority, the Commission 
adopted Regulation NMS.\41\ Rule 603 of Regulation NMS requires the 
SROs to act jointly pursuant to NMS plans to ``disseminate consolidated 
information, including a national best bid and national best offer, on 
quotations for and transactions in NMS stocks.'' \42\ And Rule 608 of 
Regulation NMS authorizes two or more SROs, acting jointly, to file 
with the Commission a national market system plan (``NMS plan'') or a 
proposed amendment to an effective NMS plan.\43\ Rule 608 further 
provides that the Commission shall approve an amendment to an NMS plan 
if it finds that the amendment is necessary or appropriate in the 
public interest, for the protection of investors and the maintenance of 
fair and orderly markets, to remove impediments to, and perfect the 
mechanisms of, a national market system, or otherwise in furtherance of 
the purposes of the Act.\44\
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    \40\ See 15 U.S.C. 78k-1(a)(3)(B).
    \41\ 17 CFR 242.600-612; see also Regulation NMS, Securities 
Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37495, 37560 
(June 29, 2005).
    \42\ 17 CFR 242.603(b).
    \43\ See 17 CFR 242.608.
    \44\ See 17 CFR 242.608(b)(2).
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    As stated above, the Commission received one comment letter 
regarding the proposed Amendment. The commenter states that the 
Amendment should be approved as filed.\45\ According to the commenter, 
the purpose of the Amendment is to incorporate into the Plan the same 
processes for Regulatory and Operational Halts that are proposed by the 
equity exchanges, including that the Primary Listing Market be vested 
with the authority to determine when to initiate and end a Regulatory 
Halt, consistent with its rules.\46\ The commenter states that the 
Primary Listing Market would be enabled to declare a Regulatory Halt as 
provided for in the Primary Listing Market's rules, if it determines 
that there is a SIP Outage, Material SIP Latency, Extraordinary Market 
Activity, or in the event of national, regional, or localized 
disruption that necessitates a Regulatory Halt to maintain a fair and 
orderly market. The commenter states that the Commission should thus 
approve the Amendment because it is consistent with the Act and Rule 
608 thereunder.\47\
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    \45\ See Letter from Elizabeth K. King, Chief Regulatory 
Officer, ICE and General Counsel and Corporate Secretary, NYSE 
Group, Inc., to Vanessa Countryman, Secretary, Commission, at 2 
(Mar. 18, 2021) (``NYSE Letter'').
    \46\ See id.
    \47\ See id.
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    The Commission agrees that the Amendment, as modified by Amendment 
Nos. 1 and 2, is consistent with the Act and Rule 608 of Regulation 
NMS.\48\ The Commission believes that the Amendment, as modified by 
Amendment Nos. 1 and 2, furthers the goals of Section 11A of the Act 
and of Rules 603 and 608 of Regulation NMS by establishing a clear and 
uniform approach with respect to trading halts under various defined 
circumstances. The Plan's provisions currently lack clarity with 
respect to whether a Primary Listing Market may declare a Regulatory 
Halt due to underlying problems at the SIP, as well as the standard and 
process for calling a halt and resuming trading thereafter. The 
Amendment--and in particular the revisions that address Regulatory 
Halts in connection with SIP Outages, Material SIP Latency, 
Extraordinary Market Activity, and national, regional, or localized 
disruptions that necessitate a Regulatory Halt to maintain a fair and 
orderly market--address this shortcoming by providing for uniform rules 
governing how Participants will address, among other things, the 
initiation, implementation, and communication of trading halts, as well 
as the resumption of trading after a trading halt or SIP Halt, thereby 
clarifying the procedures to be followed and the standards to be 
applied, improving coordination and certainty among the Participants 
and other market participants, and enhancing the resiliency and 
integrity of market systems. Accordingly, the Commission believes that 
the Amendment, as modified by Amendments Nos. 1 and 2, is in the public 
interest, supports the protection of investors, and helps the 
maintenance of fair and orderly markets because the Amendment, as 
modified by Amendment Nos. 1 and 2, is reasonably designed to assist 
market participants in understanding the processes to be followed 
during circumstances potentially warranting a regulatory halt, such as 
events involving the loss, timeliness, or accuracy of information that 
is processed or disseminated by the SIPs. Additionally, the Commission 
believes that the Amendment, as modified by Amendments Nos 1 and 2, is 
reasonably designed to enhance the resiliency of the national market 
system by clearly memorializing the coordinated actions to be taken by 
the Participants during such events so that trading may resume in a 
fair and orderly manner.
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    \48\ See 17 CFR 242.608.
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    The Commission further believes that the proposed requirement for 
Primary Listing Markets to make good-faith determinations \49\ in 
consultation with other market participants, as may be applicable 
concerning the appropriateness of declaring a regulatory halt and 
resuming trading thereafter, should promote fairness and orderliness in 
decision-making by the Primary Listing Markets. In particular, the 
good-faith determination standard promotes fair and orderly markets and 
the protection of investors because it addresses potential concerns 
that Primary Listing Markets may be subject to commercial pressures in 
making decisions to call a Regulatory Halt and resuming trading 
thereafter. Accordingly, the Commission believes that the good-faith-
determination standard encourages Primary Listing Markets to consider 
the broader interests of the national market system with respect to 
declaring trading halts and resuming trading thereafter, thereby 
promoting the maintenance of fair and orderly markets and enhancing the 
protection of investors.\50\
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    \49\ See, e.g., Sections X.C.2; X.E.1; X.F.1 of the Plan, as 
amended.
    \50\ This commenter also urges the Commission to publish and 
provide notice of any material changes that the Commission is 
considering with respect to the Amendments. See NYSE Letter, supra 
note 45, at 2. The Commission has determined to approve the 
Amendment without modification.
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    For the reasons discussed, the Commission finds that the Amendment 
to the Nasdaq/UTP Plan, as modified by Amendment Nos. 1 and 2, is 
consistent with the requirements of the Act and the rules and 
regulations thereunder, and in

[[Page 29849]]

particular, Section 11A of the Act \51\ and Rule 608 \52\ thereunder in 
that the Amendment, as modified by Amendment Nos. 1 and 2, is necessary 
or appropriate in the public interest, for the protection of investors 
and the maintenance of fair and orderly markets, to remove impediments 
to, and perfect the mechanisms of, a national market system. Section 
11A of the Act \53\ sets forth Congress' finding that it is in the 
public interest and appropriate for the protection of investors and the 
maintenance of fair and orderly markets to ensure the prompt, accurate, 
reliable and fair collection, processing, distribution, and publication 
of information with respect to quotations for and transactions in such 
securities and the fairness and usefulness of the form and content of 
such information. The Commission believes that the Amendment, as 
modified by Amendment Nos. 1 and 2, furthers these goals set forth by 
Congress.
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    \51\ 15 U.S.C. 78k-1.
    \52\ 17 CFR 242.608.
    \53\ 15 U.S.C. 78k-1(c)(1)(B).
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IV. Conclusion

    It is therefore ordered, pursuant to Section 11A of the Act,\54\ 
and Rule 608(b)(2) thereunder,\55\ that the Fiftieth Amendment to the 
Nasdaq/UTP Plan, as modified by Amendment Nos. 1 and 2, (File No. S7-
24-89) is approved.
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    \54\ 15 U.S.C. 78k-1.
    \55\ 17 CFR 242.608(b)(2).

    By the Commission.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-11687 Filed 6-2-21; 8:45 am]
BILLING CODE 8011-01-P


