[Federal Register Volume 86, Number 119 (Thursday, June 24, 2021)]
[Notices]
[Pages 33448-33454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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).
---------------------------------------------------------------------------

    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\
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    \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\
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    \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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

     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 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

     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 
(http://www.sec.gov/rules/sro.shtml). 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\
---------------------------------------------------------------------------

    \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


