[Federal Register Volume 87, Number 229 (Wednesday, November 30, 2022)]
[Notices]
[Pages 73569-73576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26076]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-96383; File No. 4-551]


Program for Allocation of Regulatory Responsibilities Pursuant to 
Rule 17d-2; Notice of Filing and Order Approving and Declaring 
Effective an Amendment to the Plan for the Allocation of Regulatory 
Responsibilities Among NYSE American LLC, Cboe BZX Exchange, Inc., the 
Cboe EDGX Exchange, Inc., Cboe C2 Exchange, Inc., Cboe Exchange, Inc., 
Nasdaq ISE, LLC, Financial Industry Regulatory Authority, Inc., NYSE 
Arca, Inc., The Nasdaq Stock Market LLC, BOX Exchange LLC, Nasdaq BX, 
Inc., Nasdaq PHLX LLC, Miami International Securities Exchange, LLC, 
Nasdaq GEMX, LLC, Nasdaq MRX, LLC, MIAX PEARL, LLC, MIAX Emerald, LLC, 
and MEMX LLC Concerning Options-Related Market Surveillance

November 23, 2022.
    Notice is hereby given that the Securities and Exchange Commission 
(``Commission'') has issued an Order, pursuant to Section 17(d) of the 
Securities Exchange Act of 1934 (``Act''),\1\ approving and declaring 
effective an amendment to the plan for allocating regulatory 
responsibility (``Plan'') filed on October 26, 2022, pursuant to Rule 
17d-2 of the Act,\2\ by NYSE American LLC (``NYSE American''), Cboe BZX 
Exchange, Inc., (``BZX''), the Cboe EDGX Exchange, Inc. (``EDGX''), 
Cboe C2 Exchange, Inc. (``C2''), Cboe Exchange, Inc. (``Cboe''), Nasdaq 
ISE, LLC (``ISE''), Financial Industry Regulatory Authority, Inc. 
(``FINRA''), NYSE Arca, Inc. (``Arca''), The NASDAQ Stock Market LLC 
(``Nasdaq''), BOX Exchange LLC (``BOX''), NASDAQ BX, Inc. (``BX''), 
NASDAQ PHLX LLC (``PHLX''), Miami International Securities Exchange, 
LLC (``MIAX''), Nasdaq GEMX, LLC (``Gemini''), Nasdaq MRX, LLC 
(``Mercury''), MIAX PEARL, LLC (``MIAX PEARL''), and MIAX Emerald, LLC 
(MIAX Emerald), and MEMX LLC (``MEMX'') (collectively, ``Participating 
Organizations'' or ``parties'').
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    \1\ 15 U.S.C. 78q(d).
    \2\ 17 CFR 240.17d-2.
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I. Introduction

    Section 19(g)(1) of the Act,\3\ among other things, requires every 
self-regulatory organization (``SRO'') registered as either a national 
securities exchange or national securities association to examine for, 
and enforce compliance by, its members and persons associated with its 
members with the Act, the rules and regulations thereunder, and the 
SRO's own rules, unless the SRO is relieved of this responsibility 
pursuant to Section 17(d) \4\ or Section 19(g)(2) \5\ of the Act. 
Without this relief, the statutory obligation of each individual SRO 
could result in a pattern of multiple examinations of broker-dealers 
that maintain memberships in more than one SRO (``common members''). 
Such regulatory duplication would add unnecessary expenses for common 
members and their SROs.
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    \3\ 15 U.S.C. 78s(g)(1).
    \4\ 15 U.S.C. 78q(d).
    \5\ 15 U.S.C. 78s(g)(2).
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    Section 17(d)(1) of the Act \6\ was intended, in part, to eliminate 
unnecessary multiple examinations and regulatory duplication.\7\ With 
respect to a common member, Section 17(d)(1) authorizes the Commission, 
by rule or order, to relieve an SRO of the responsibility to receive 
regulatory reports, to examine for and enforce compliance with 
applicable statutes, rules, and regulations, or to perform other 
specified regulatory functions.
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    \6\ 15 U.S.C. 78q(d)(1).
    \7\ See Securities Act Amendments of 1975, Report of the Senate 
Committee on Banking, Housing, and Urban Affairs to Accompany S. 
249, S. Rep. No. 94-75, 94th Cong., 1st Session 32 (1975).
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    To implement Section 17(d)(1), the Commission adopted two rules: 
Rule 17d-1 and Rule 17d-2 under the Act.\8\ Rule 17d-1 authorizes the 
Commission to name a single SRO as the designated examining authority 
(``DEA'') to examine common members for compliance with the financial 
responsibility requirements imposed by the Act, or by Commission or SRO 
rules.\9\ When an SRO has been named as a common member's DEA, all 
other SROs to which the common member belongs are relieved of the 
responsibility to examine the firm for compliance with the applicable 
financial responsibility rules. On its face, Rule 17d-1 deals only with 
an SRO's obligations to enforce member compliance with financial 
responsibility requirements. Rule 17d-1 does not relieve an SRO from 
its obligation to examine a common member for compliance with its own 
rules and provisions of the federal securities laws governing matters 
other than financial responsibility, including sales practices and 
trading activities and practices.
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    \8\ 17 CFR 240.17d-1 and 17 CFR 240.17d-2, respectively.
    \9\ See Securities Exchange Act Release No. 12352 (April 20, 
1976), 41 FR 18808 (May 7, 1976).
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    To address regulatory duplication in these and other areas, the 
Commission

[[Page 73570]]

adopted Rule 17d-2 under the Act.\10\ Rule 17d-2 permits SROs to 
propose joint plans for the allocation of regulatory responsibilities 
with respect to their common members. Under paragraph (c) of Rule 17d-
2, the Commission may declare such a plan effective if, after providing 
for notice and comment, it determines that the plan is necessary or 
appropriate in the public interest and for the protection of investors, 
to foster cooperation and coordination among the SROs, to remove 
impediments to, and foster the development of, a national market system 
and a national clearance and settlement system, and is in conformity 
with the factors set forth in Section 17(d) of the Act. Commission 
approval of a plan filed pursuant to Rule 17d-2 relieves an SRO of 
those regulatory responsibilities allocated by the plan to another SRO.
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    \10\ See Securities Exchange Act Release No. 12935 (October 28, 
1976), 41 FR 49091 (November 8, 1976).
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II. The Plan

    On December 11, 2007, the Commission declared effective the 
Participating Organizations' Plan for allocating regulatory 
responsibilities pursuant to Rule 17d-2.\11\ On April 11, 2008, the 
Commission approved an amendment to the Plan to include NASDAQ as a 
participant.\12\ On October 9, 2008, the Commission approved an 
amendment to the Plan to clarify that the term Regulatory 
Responsibility for options position limits includes the examination 
responsibilities for the delta hedging exemption.\13\ On February 25, 
2010, the Commission approved an amendment to the Plan to add Bats and 
C2 as SRO participants and to reflect the name changes of the American 
Stock Exchange LLC to the NYSE Amex LLC, and the Boston Stock Exchange, 
Inc. to the NASDAQ OMX BX, Inc.\14\ On May 11, 2012, the Commission 
approved an amendment to the Plan to add BOX as a participant to the 
Plan.\15\ On December 5, 2012, the Commission approved an amendment to 
the Plan to add MIAX as a participant to the Plan.\16\ On July 26, 
2013, the Commission approved an amendment to the Plan to add Topaz 
Exchange, LLC as a Participant to the Plan.\17\ On October 29, 2015, 
the Commission approved an amendment to add EDGX as a Participant to 
the Plan and to change the name of Topaz Exchange, LLC to ISE Gemini, 
LLC.\18\ On February 16, 2016, the Commission approved an amendment to 
add ISE Mercury, LLC as a Participant to the Plan.\19\ On February 2, 
2017, the Commission approved an amendment to add MIAX PEARL as a 
Participant to the Plan.\20\ On February 11, 2019, the Commission 
approved an amendment to add MIAX Emerald as a Participant to the 
Plan.\21\
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    \11\ See Securities Exchange Act Release No. 56941 (December 11, 
2007), 72 FR 71723 (December 18, 2007) (File No. 4-551).
    \12\ See Securities Exchange Act Release No. 57649 (April 11, 
2008), 73 FR 20976 (April 17, 2008) (File No. 4-551).
    \13\ See Securities Exchange Act Release No. 58765 (October 9, 
2008), 73 FR 62344 (October 20, 2008) (File No. 4-551).
    \14\ See Securities Exchange Act Release No. 61588 (February 25, 
2010), 75 FR 9970 (March 4, 2010) (File No. 4-551).
    \15\ See Securities Exchange Act Release No. 66975 (May 11, 
2012), 77 FR 29712 (May 18, 2010) (File No. 4-551).
    \16\ See Securities Exchange Act Release No. 68362 (December 5, 
2012), 77 FR 73719 (December 11, 2012) (File No. 4-551).
    \17\ See Securities Exchange Act Release No. 70052 (July 26, 
2013), 78 FR 46665 (August 1, 2013) (File No. 4-551).
    \18\ See Securities Exchange Act Release No. 76310 (October 29, 
2015), 80 FR 68354 (November 4, 2015) (File No. 4-551).
    \19\ See Securities Exchange Act Release No. 77149 (February 16, 
2016), 81 FR 8781 (February 22, 2016) (File No. 4-551).
    \20\ See Securities Exchange Act Release No. 79930 (February 2, 
2017), 82 FR 9807 (February 8, 2017) (File No. 4-551).
    \21\ See Securities Exchange Act Release No. 85097 (February 11, 
2019), 84 FR 4871 (February 19, 2019) (File No. 4-551).
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    The Plan is designed to reduce regulatory duplication for common 
members by allocating regulatory responsibility for certain options-
related market surveillance matters among the Participating 
Organizations. Generally, under the Plan, a Participating Organization 
will serve as the Designated Options Surveillance Regulator (``DOSR'') 
for each common member assigned to it and will assume regulatory 
responsibility with respect to that common member's compliance with 
applicable common rules for certain accounts. When an SRO has been 
named as a common member's DOSR, all other SROs to which the common 
member belongs will be relieved of regulatory responsibility for that 
common member, pursuant to the terms of the Plan, with respect to the 
applicable common rules specified in Exhibit A to the Plan.

III. Proposed Amendment to the Plan

    On October 26, 2022, the parties submitted a proposed amendment to 
the Plan. The primary purpose of the amendment is to add MEMX as a 
Participant to the Plan, to reflect name changes of certain 
Participating Organizations, and update rule references. The text of 
the proposed amended 17d-2 plan is as follows (additions are 
italicized; deletions are [bracketed]):
* * * * *

AGREEMENT BY AND AMONG NYSE AMERICAN LLC, CBOE BZX EXCHANGE, INC., CBOE 
EDGX EXCHANGE INC., BOX EXCHANGE LLC, NASDAQ BX, INC., CBOE C2 
EXCHANGE, INC., CBOE EXCHANGE, INC., NASDAQ ISE, LLC, NASDAQ GEMX, LLC, 
NASDAQ MRX, LLC, FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC., NYSE 
ARCA, INC., THE NASDAQ STOCK MARKET LLC, NASDAQ PHLX LLC, MIAMI 
INTERNATIONAL SECURITIES EXCHANGE, LLC, MIAX PEARL, LLC, [AND] MIAX 
EMERALD, LLC, AND MEMX LLC PURSUANT TO RULE 17d-2 UNDER THE SECURITIES 
EXCHANGE ACT OF 1934

    This agreement (this ``Agreement''), by and among NYSE American LLC 
(``NYSE American''), Cboe BZX Exchange, Inc., (``BZX''), the Cboe EDGX 
Exchange, Inc. (``EDGX''), Cboe C2 Exchange, Inc. (``C2''), Cboe 
Exchange, Inc. (``Cboe''), Nasdaq ISE, LLC (``ISE''), Financial 
Industry Regulatory Authority, Inc. (``FINRA''), NYSE Arca, Inc. 
(``Arca''), The Nasdaq[ASDAQ] Stock Market LLC (``Nasdaq''), BOX 
Exchange LLC (``BOX''), Nasdaq[ASDAQ] BX, Inc. (``BX''), Nasdaq[ASDAQ] 
PHLX LLC (``PHLX''), Miami International Securities Exchange, LLC 
(``MIAX''), Nasdaq GEMX, LLC (``GEMX[Gemini]''), Nasdaq MRX, LLC 
(``MRX[Mercury]''), MIAX PEARL, LLC (``MIAX PEARL''), [and] MIAX 
Emerald, LLC (``MIAX Emerald''), and MEMX LLC (``MEMX''), is made 
the[is] 10th[th] day of October 2007, and as amended the 31st day of 
March 2008, the 1st day of October 2008, the 3rd day of February 2010, 
the 25th[th] day of April 2012, [and ]the 19th day of November 2012, 
[and ]the 30th day of May 2013, [and ]the 16th[th] day of October 2015, 
[and ]the 29th day of January 2016, the 23rd[rd] day of January 2017, 
[and ]the 8th day of January 2019, and the 18th day of October 2022, 
pursuant to Section 17(d) of the Securities Exchange Act of 1934, as 
amended (the ``Exchange Act''), and Rule 17d-2 thereunder (``Rule 17d-
2''), which allows for a joint plan among self-regulatory organizations 
(``SROs'') to allocate regulatory obligations with respect to brokers 
or dealers that are members of two or more of the parties to this 
Agreement (``Common Members''). NYSE American, BZX, C2, Cboe, EDGX, 
Gemini, ISE, Mercury, FINRA, Arca, Nasdaq, BOX, BX, PHLX, MIAX, MIAX 
PEARL, [and]MIAX

[[Page 73571]]

Emerald, and MEMX, are collectively referred to herein as the 
``Participants'' and individually, each a ``Participant.'' This 
Agreement shall be administered by a committee known as the Options 
Surveillance Group (the ``OSG'' or ``Group''), as described in Section 
V hereof. Unless defined in this Agreement or the context otherwise 
requires, the terms used herein shall have the meanings assigned 
thereto by the Exchange Act and the rules and regulations thereunder.
    Whereas, the Participants desire to eliminate regulatory 
duplication with respect to SRO market surveillance of Common Member 
\1\ activities with regard to certain common rules relating to listed 
options (``Options''); and
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    \1\ In the case of the BX and BOX, members are those persons who 
are Options Participants (as defined in the BOX Exchange LLC Rules 
and NASDAQ BX, Inc. Rules).
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    Whereas, for this purpose, the Participants desire to execute and 
file this Agreement with the Securities and Exchange Commission (the 
``SEC'' or ``Commission'') pursuant to Rule 17d-2.
    Now, Therefore, in consideration of the mutual covenants contained 
in this Agreement, the Participants agree as follows:
    I. Except as otherwise provided in this Agreement, each Participant 
shall assume Regulatory Responsibility (as defined below) for the 
Common Members that are allocated or assigned to such Participant in 
accordance with the terms of this Agreement and shall be relieved of 
its Regulatory Responsibility as to the remaining Common Members. For 
purposes of this Agreement, a Participant shall be considered to be the 
Designated Options Surveillance Regulator (``DOSR'') for each Common 
Member that is allocated to it in accordance with Section VII.
    II. As used in this Agreement, the term ``Regulatory 
Responsibility'' shall mean surveillance, investigation and enforcement 
responsibilities relating to compliance by the Common Members with such 
Options rules of the Participants as the Participants shall determine 
are substantially similar and shall approve from time to time, insofar 
as such rules relate to market surveillance (collectively, the ``Common 
Rules''). For the purposes of this Agreement the list of Common Rules 
is attached as Exhibit A hereto, which may only be amended upon 
unanimous written agreement by the Participants. The DOSR assigned to 
each Common Member shall assume Regulatory Responsibility with regard 
to that Common Member's compliance with the applicable Common Rules for 
certain accounts.\2\ A DOSR may perform its Regulatory Responsibility 
or enter an agreement to transfer or assign such responsibilities to a 
national securities exchange registered with the SEC under Section 6(a) 
of the Exchange Act or a national securities association registered 
with the SEC under Section 15A of the Exchange Act. A DOSR may not 
transfer or assign its Regulatory Responsibility to an association 
registered for the limited purpose of regulating the activities of 
members who are registered as brokers or dealers in security futures 
products.
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    \2\ Certain accounts shall include customer (``C'' as classified 
by the Options Clearing Corporation (``OCC'')) and firm (``F'' as 
classified by OCC) accounts, as well as other accounts, such as 
market maker accounts as the Participants shall, from time to time, 
identify as appropriate to review.
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    The term ``Regulatory Responsibility'' does not include, and each 
Participant shall retain full responsibility with respect to:
    (a) surveillance, investigative and enforcement responsibilities 
other than those included in the definition of Regulatory 
Responsibility;
    (b) any aspects of the rules of a Participant that are not 
substantially similar to the Common Rules or that are allocated for a 
separate surveillance purpose under any other
    (c) agreement made pursuant to Rule 17d-2. Any such aspects of a 
Common Rule will be noted as excluded on Exhibit A.
    With respect to options position limits, the term Regulatory 
Responsibility shall include examination responsibilities for the delta 
hedging exemption. Specifically, the Participants intend that FINRA 
will conduct examinations for delta hedging for all Common Members that 
are members of FINRA notwithstanding the fact that FINRA's position 
limit rule is, in some cases, limited to only firms that are not 
members of an options exchange (i.e., access members). In such cases, 
FINRA's examinations for delta hedging options position limit 
violations will be for the identical or substantively similar position 
limit rule(s) of the other Participant(s). Examinations for delta 
hedging for Common Members that are non-FINRA members will be conducted 
by the same Participant conducting position limit surveillance. The 
allocation of Common Members to DOSRs for surveillance of compliance 
with options position limits and other agreed to Common Rules is 
provided in Exhibit B. The allocation of Common Members to DOSRs for 
examinations of the delta hedging exemption under the options position 
limits rules is provided in Exhibit C.
    III. Each year within 30 days of the anniversary date of the 
commencement of operation of this Agreement, or more frequently if 
required by changes in the rules of a Participant, each Participant 
shall submit to the other Participants, through the Chair of the OSG, 
an updated list of Common Rules for review. This updated list may add 
Common Rules to Exhibit A, shall delete from Exhibit A rules of that 
Participant that are no longer identical or substantially similar to 
the Common Rules, and shall confirm that the remaining rules of the 
Participant included on Exhibit A continue to be identically or 
substantially similar to the Common Rules. Within 30 days from the date 
that each Participant has received revisions to Exhibit A from the 
Chair of the OSG, each Participant shall confirm in writing to the 
Chair of the OSG whether that Participant's rules listed in Exhibit A 
are Common Rules.
    IV. Apparent violation of another Participant's rules discovered by 
a DOSR, but which rules are not within the scope of the discovering 
DOSR's Regulatory Responsibility, shall be referred to the relevant 
Participant for such action as is deemed appropriate by that 
Participant.
    Notwithstanding the foregoing, nothing contained herein shall 
preclude a DOSR in its discretion from requesting that another 
Participant conduct an investigative or enforcement proceeding 
(``Proceeding'') on a matter for which the requesting DOSR has 
Regulatory Responsibility. If such other Participant agrees, the 
Regulatory Responsibility in such case shall be deemed transferred to 
the accepting Participant and confirmed in writing by the Participants 
involved. Additionally, nothing in this Agreement shall prevent another 
Participant on whose market potential violative activity took place 
from conducting its own Proceeding on a matter. The Participant 
conducting the Proceeding shall advise the assigned DOSR. Each 
Participant agrees, upon request, to make available promptly all 
relevant files, records and/or witnesses necessary to assist another 
Participant in a Proceeding.
    V. The OSG shall be composed of one representative designated by 
each of the Participants (a ``Representative''). Each Participant shall 
also designate one or more persons as its alternate representative(s) 
(an ``Alternate Representative''). In the absence of the 
Representative, the Alternate Representative shall assume the powers, 
duties and responsibilities of the Representative. Each Participant may 
at any time replace its Representative and/or its Alternate 
Representative to the

[[Page 73572]]

Group.\3\ A majority of the OSG shall constitute a quorum and, unless 
otherwise required, the affirmative vote of a majority of the 
Representatives present (in person, by telephone or by written consent) 
shall be necessary to constitute action by the Group.
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    \3\ A Participant must give notice to the Chair of the Group of 
such a change.
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    The Group will have a Chair, Vice Chair and Secretary. A different 
Participant will assume each position on a rotating basis for a one-
year term. In the event that a Participant replaces a Representative 
who is acting as Chair, Vice Chair or Secretary, the newly appointed 
Representative shall assume the position of Chair, Vice Chair, or 
Secretary (as applicable) vacated by the Participant's former 
Representative. In the event a Participant cannot fulfill its duties as 
Chair, the Participant serving as Vice Chair shall substitute for the 
Chair and complete the subject unfulfilled term. All notices and other 
communications for the OSG are to be sent in care of the Chair and, as 
appropriate, to each Representative.
    VI. The OSG shall determine the times and locations of Group 
meetings, provided that the Chair, acting alone, may also call a 
meeting of the Group in the event the Chair determines that there is 
good cause to do so. To the extent reasonably possible, notice of any 
meeting shall be given at least ten business days prior to the meeting 
date. Representatives shall always be given the option of participating 
in any meeting telephonically at their own expense rather than in 
person.
    VII. No less frequently than every two years, in such manner as the 
Group deems appropriate, the OSG shall allocate Common Members that 
conduct an Options business among the Participants (``Allocation''), 
and the Participant to which a Common Member is allocated will serve as 
the DOSR for that Common Member. Any Allocation shall be based on the 
following principles, except to the extent all affected Participants 
consent to one or more different principles:
    (a) The OSG may not allocate a Common Member to a Participant 
unless the Common Member is a member of that Participant.
    (b) To the extent practicable, Common Members that conduct an 
Options business shall be allocated among the Participants of which 
they are members in such manner as to equalize as nearly as possible 
the allocation among such Participants, provided that no Common Members 
shall be allocated to FINRA. For example, if sixteen Common Members 
that conduct an Options business are members only of three 
Participants, none of which is FINRA, those Common Members shall be 
allocated among the three Participants such that no Participant is 
allocated more than six such members and no Participant is allocated 
less than five such members. If, in the previous example, one of the 
three Participants is FINRA, the sixteen Common Members would be 
allocated evenly between the remaining Participants, so that the two 
non-FINRA Participants would be allocated eight Common Members each.
    (c) To the extent practicable, Allocation shall take into account 
the amount of Options activity conducted by each Common Member in order 
to most evenly divide the Common Members with the largest amount of 
activity among the Participants of which they are members. Allocation 
will also take into account similar allocations pursuant to other plans 
or agreements to which the Common Members are party to maintain 
consistency in oversight of the Common Members.\4\
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    \4\ For example, if one Participant was allocated a Common 
Member by another regulatory group that Participant would be 
assigned to be the DOSR of that Common Member, unless there is good 
cause not to make that assignment.
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    (d) To the extent practicable, Allocation of Common Members to 
Participants will be rotated among the applicable Participants such 
that a Common Member shall not be allocated to a Participant to which 
that Common Member was allocated within the previous two years. The 
assignment of DOSRs pursuant to the Allocation is attached as Exhibit B 
hereto, and will be updated from time to time to reflect Common Member 
Allocation changes.
    (e) The Group may reallocate Common Members from time-to-time, as 
it deems appropriate.
    (f) Whenever a Common Member ceases to be a member of its DOSR, the 
DOSR shall promptly inform the Group, which shall review the matter and 
allocate the Common Member to another Participant.
    (g) A DOSR may request that a Common Member to which it is assigned 
be reallocated to another Participant by giving 30 days written notice 
to the Chair of the OSG. The Group, in its discretion, may approve such 
request and reallocate the Common Member to another Participant.
    (h) All determinations by the Group with respect to Allocation 
shall be made by the affirmative vote of a majority of the Participants 
that, at the time of such determination, share the applicable Common 
Member being allocated; a Participant shall not be entitled to vote on 
any Allocation relating to a Common Member unless the Common Member is 
a member of such Participant.
    VIII. Each DOSR shall conduct routine surveillance reviews to 
detect violations of the applicable Common Rules by each Common Member 
allocated to it with a frequency (daily, weekly, monthly, quarterly, 
semi-annually or annually as noted on Exhibit A) not less than that 
determined by the Group. The other Participants agree that, upon 
request, relevant information in their respective files relative to a 
Common Member will be made available to the applicable DOSR. In 
addition, each Participant shall provide, to the extent not otherwise 
already provided, information pertaining to its surveillance program 
that would be relevant to FINRA or the Participant(s) conducting 
routine examinations for the delta hedging exemption.
    At each meeting of the OSG, each Participant shall be prepared to 
report on the status of its surveillance program for the previous 
quarter and any period prior thereto that has not previously been 
reported to the Group. In the event a DOSR believes it will not be able 
to complete its Regulatory Responsibility for its allocated Common 
Members, it will so advise the Group in writing promptly. The Group 
will undertake to remedy this situation by reallocating the subject 
Common Members among the remaining Participants. In such instance, the 
Group may determine to impose a regulatory fee for services provided to 
the DOSR that was unable to fulfill its Regulatory Responsibility.
    IX. Each Participant will, upon request, promptly furnish a copy of 
the report or applicable portions thereof relating to any investigation 
made pursuant to the provisions of this Agreement to each other 
Participant of which the Common Member under investigation is a member.
    X. Each Participant will routinely populate a common database, to 
be accessed by the Group relating to any formal regulatory action taken 
during the course of a Proceeding with respect to the Common Rules 
concerning a Common Member.
    XI. Any written notice required or permitted to be given under this 
Agreement shall be deemed given if sent by certified mail, return 
receipt requested, to any Participant to the attention of that 
Participant's Representative, to the Participant's principal place of 
business or by email at such address as the Representative shall have 
filed in writing with the Chair.
    XII. The costs incurred by each Participant in discharging its 
Regulatory Responsibility under this Agreement are

[[Page 73573]]

not reimbursable. However, any of the Participants may agree that one 
or more will compensate the other(s) for costs incurred.
    XIII. The Participants shall notify the Common Members of this 
Agreement by means of a uniform joint notice approved by the Group. 
Each Participant will notify the Common Members that have been 
allocated to it that such Participant will serve as DOSR for that 
Common Member.
    XIV. This Agreement shall be effective upon approval of the 
Commission. This Agreement may only be amended in writing duly approved 
by each Participant. All amendments to this Agreement, excluding 
changes to Exhibits A, B and C, must be filed with and approved by the 
Commission.
    XV. Any Participant may manifest its intention to cancel its 
participation in this Agreement at any time upon providing written 
notice to (i) the Group six months prior to the date of such 
cancellation, or such other period as all the Participants may agree, 
and (ii) the Commission. Upon receipt of the notice the Group shall 
allocate, in accordance with the provisions of this Agreement, those 
Common Members for which the canceling Participant was the DOSR. The 
canceling Participant shall retain its Regulatory Responsibility and 
other rights, privileges and duties pursuant to this Agreement until 
the Group has completed the reallocation as described above, and the 
Commission has approved the cancellation.
    XVI. The cancellation of its participation in this Agreement by any 
Participant shall not terminate this Agreement as to the remaining 
Participants. This Agreement will only terminate following notice to 
the Commission, in writing, by the then Participants that they intend 
to terminate the Agreement and the expiration of the applicable notice 
period. Such notice shall be given at least six months prior to the 
intended date of termination, or such other period as all the 
Participants may agree. Such termination will become effective upon 
Commission approval.
    XVII. Participation in the Group shall be strictly limited to the 
Participants and no other party shall have any right to attend or 
otherwise participate in the Group except with the unanimous approval 
of all Participants. Notwithstanding the foregoing, any national 
securities exchange registered with the SEC under Section 6(a) of the 
Act or any national securities association registered with the SEC 
under section 15A of the Act may become a Participant to this Agreement 
provided that: (i) such applicant has adopted rules substantially 
similar to the Common Rules, and received approval thereof from the 
SEC; (ii) such applicant has provided each Participant with a signed 
statement whereby the applicant agrees to be bound by the terms of this 
Agreement to the same effect as though it had originally signed this 
Agreement and (iii) an amended agreement reflecting the addition of 
such applicant as a Participant has been filed with and approved by the 
Commission.
    XVIII. This Agreement is wholly separate from the multiparty 
Agreement made pursuant to Rule 17d-2 by and among the NYSE 
[MKT]American LLC, the Cboe[Bats] BZX Exchange, Inc., BOX [Options 
]Exchange[,] LLC, the C2 [Options ]Exchange, Inc., the Cboe 
Exchange[Chicago Board Options Exchange], Inc., the [International 
Securities Exchange]Nasdaq ISE, LLC, Financial Industry Regulatory 
Authority, The Nasdaq[ASDAQ] Stock Market LLC, the New York Stock 
Exchange, LLC, the NYSE Arca, Inc., the Nasdaq[ASDAQ] BX, Inc., the 
Nasdaq[ASDAQ] PHLX LLC, Miami International Securities Exchange, LLC, 
Nasdaq GEMX[ISE Gemini], LLC, Nasdaq MRX[ISE Mercury], LLC, Cboe[Bats] 
EDGX Exchange, Inc., [and]MIAX PEARL, LLC, and MIAX Emerald, LLC, 
involving the allocation of regulatory responsibilities with respect to 
common members for compliance with common rules relating to the conduct 
by broker-dealers of accounts for listed options or index warrants 
[entered into on January 23, 2017]approved by the SEC on February 12, 
2019, and as may be amended from time to time.

Limitation of Liability

    No Participant nor the Group nor any of their respective directors, 
governors, officers, employees or representatives shall be liable to 
any other Participant in this Agreement for any liability, loss or 
damage resulting from or claimed to have resulted from any delays, 
inaccuracies, errors or omissions with respect to the provision of 
Regulatory Responsibility as provided hereby or for the failure to 
provide any such Regulatory Responsibility, except with respect to such 
liability, loss or damages as shall have been suffered by one or more 
of the Participants and caused by the willful misconduct of one or more 
of the other Participants or its respective directors, governors, 
officers, employees or representatives. No warranties, express or 
implied, are made by the Participants, individually or as a group, or 
by the OSG with respect to any Regulatory Responsibility to be 
performed hereunder.

Relief From Responsibility

    Pursuant to Section 17(d)(1)(A) of the Exchange Act and Rule 17d-2, 
the Participants join in requesting the Commission, upon its approval 
of this Agreement or any part thereof, to relieve the Participants that 
are party to this Agreement and are not the DOSR as to a Common Member 
of any and all Regulatory Responsibility with respect to the matters 
allocated to the DOSR.
* * * * *
    This Agreement may be executed in any number of counterparts, each 
of which shall be deemed to be an original, but all such counterparts 
shall together constitute one and the same Agreement.
    In Witness Whereof, the Participants hereto have executed this 
Agreement as of the date and year first above written.

Exhibit A

Options Surveillance Group 17d-2 Agreement

Common Rules as of [January 8, 2019] October 18, 2022

              Violation I: Expiring Exercise Declarations (EED)--For Listed and FLEX Equity Options
----------------------------------------------------------------------------------------------------------------
                SRO                    Description of rule    Exchange rule number       Frequency of review
----------------------------------------------------------------------------------------------------------------
BZX................................  Exercise of Options     Rule 23.1............  At Expiration.
                                      Contracts.
BOX................................  Exercise of Options     Rule 9000............  At Expiration.
                                      Contracts.
C2.................................  Exercise of Options     [Rule 11.1] Ch. 6,     At Expiration.
                                      Contracts.              Sec. B.
Cboe...............................  Exercise of Options     [Rule 11.1] Rule       At Expiration.
                                      Contracts.              6.20(a)-(d), I&P .01-
                                                              .07.
EDGX...............................  Exercise of Options     Rule 23.1............  At Expiration.
                                      Contracts.
FINRA..............................  Exercise of Options     Rule 2360(b)(23).....  At Expiration.
                                      Contracts.
ISE................................  Exercise of Options     [Rule 1100] Options    At Expiration.
                                      Contracts.              6B, Section 1.

[[Page 73574]]

 
GEMX...............................  Exercise of Options     [Rule 1100] Options    At Expiration.
                                      Contracts.              6B, Section 1.
MRX................................  Exercise of Options     [Rule 1100] Options    At Expiration.
                                      Contracts.              6B, Section 1.
MIAX...............................  Exercise of Options     Rule 700.............  At Expiration.
                                      Contracts.
MIAX PEARL.........................  Exercise of Options     Rule 700.............  At Expiration.
                                      Contracts.
MIAX Emerald.......................  Exercise of Options     Rule 700.............  At Expiration.
                                      Contracts.
MEMX...............................  Exercise of Options     Rule 23.1............  At Expiration.
                                      Contracts.
Nasdaq.............................  Exercise of Options     [Options 5, Section    At Expiration.
                                      Contracts.              100] Options 6B,
                                                              Section 1.
Nasdaq BX..........................  Exercise of Options     [Options 5, Section    At Expiration.
                                      Contracts.              100] Options 6B,
                                                              Section 1.
Nasdaq PHLX........................  Exercise of Equity      [Rule 1042] Options    At Expiration.
                                      Options Contracts.      6B, Section 1.
NYSE Arca..........................  Exercise of Options     Rule 6.24-O..........  At Expiration.
                                      Contracts.
NYSE American......................  Exercise of Options     Rule 980.............  At Expiration.
                                      Contracts.
----------------------------------------------------------------------------------------------------------------


                          Violation II: Position Limits (PL)--For Listed Equity Options
----------------------------------------------------------------------------------------------------------------
                                       Description of rule
                SRO                    (for review as they    Exchange rule number       Frequency of review
                                          apply to PL)
----------------------------------------------------------------------------------------------------------------
BZX................................  Position Limits.......  Rule 18.7............  Daily.
                                     Exemptions from         Rule 18.8............  As Needed.
                                      Position.
                                     Liquidation Positions.  Rule 18.11...........  As Needed.
BOX................................  Position Limits.......  Rule 3120............  Daily.
                                     Exemptions from         Rule 3130............  As Needed.
                                      Position Limits.
                                     Liquidation Positions.  Rule 3160............  As Needed.
C2.................................  Position Limits.......  Ch. 8 [Rule 4.11]....  Daily.
                                     Liquidation of          Ch. 8 [Rule 4.14]....  As Needed.
                                      Positions.
Cboe...............................  Position Limits.......  Rule 8.30 [Rule 4.11]  Daily.
                                     Liquidation of          Rule 8.44 [Rule 4.14]  As Needed.
                                      Positions.
EDGX...............................  Position Limits.......  Rule 18.7............  Daily.
                                     Exemptions from         Rule 18.8............  As Needed.
                                      Position.
                                     Liquidation Positions.  Rule 18.11...........  As Needed.
FINRA..............................  Position Limits.......  Rule 2360(b)(3)......  Daily.
                                     Liquidation of          Rule 2360(b)(6)......  As Needed.
                                      Positions and
                                      Restrictions on
                                      Access.
ISE................................  Position Limits.......  ISE Options 9,         Daily.
                                                              Section 13 [Rule
                                                              412].
                                     Exemptions from         ISE Options 9,         As Needed.
                                      Position Limits.        Section 14 [Rule
                                                              413].
                                     Liquidating Positions.  ISE Options 9,         As Needed.
                                                              Section 17 [Rule
                                                              416].
GEMX...............................  Position Limits.......  GEMX Options 9,        Daily.
                                                              Section 13 [Rule
                                                              412].
                                     Exemptions from         GEMX Options 9,        As Needed.
                                      Position Limits.        Section 14 [Rule
                                                              413].
                                     Liquidating Positions.  GEMX Options 9,        As Needed.
                                                              Section 17 [Rule
                                                              416].
MRX................................  Position Limits.......  MRX Options 9,         Daily.
                                                              Section 13 [Rule
                                                              412].
                                     Exemptions from         MRX Options 9,         As Needed.
                                      Position Limits.        Section 14 [Rule
                                                              413].
                                     Liquidating Positions.  MRX Options 9,         As Needed.
                                                              Section 17 [Rule
                                                              416].
MIAX...............................  Position Limits.......  Rule 307.............  Daily.
                                     Exemptions from         Rule 308.............  As Needed.
                                      Position Limits.
                                     Liquidating Positions.  Rule 311.............  As Needed.
MIAX Pearl.........................  Position Limits.......  Rule 307.............  Daily.
                                     Exemptions from         Rule 308.............  As Needed.
                                      Position Limits.
                                     Liquidating Positions.  Rule 311.............  As Needed.
MIAX Emerald.......................  Position Limits.......  Rule 307.............  Daily.
                                     Exemptions from         Rule 308.............  As Needed.
                                      Position Limits.
                                     Liquidating Positions.  Rule 311.............  As Needed.
MEMX...............................  Position Limits.......  Rule 18.7............  Daily.
                                     Exemptions from         Rule 18.8............  As Needed.
                                      Position.
                                     Liquidation Positions.  Rule 18.11...........  As Needed.
Nasdaq.............................  Position Limits.......  NOM Options 9,         Daily.
                                                              Section 13 [Ch. III,
                                                              Sect. 7].
                                     Exemptions from         NOM Options 9,         As Needed.
                                      Position Limits.        Section 14 [Ch. III,
                                                              Sect. 8].
                                     Liquidation Positions.  NOM Options 9,         As Needed.
                                                              Section 17 [Ch. III,
                                                              Sect. 11].
Nasdaq BX..........................  Position Limits.......  BX Options 9, Section  Daily.
                                                              13 [Ch. III, Sect.
                                                              7].
                                     Exemptions from         BX Options 9, Section  As Needed.
                                      Position Limits.        14 [Ch. III, Sect.
                                                              8].
                                     Liquidation Positions.  BX Options 9, Section  As Needed.
                                                              17 [Ch. III, Sect.
                                                              11].

[[Page 73575]]

 
Nasdaq PHLX........................  Position Limits.......  PHLX Options 9,        Daily.
                                                              Section 13 [Rule
                                                              1001].
                                     Liquidation of          PHLX Options 9,        As Needed.
                                      Position.               Section 17 [Rule
                                                              1004].
NYSE Arca..........................  Position Limits.......  Rule 6.8-O...........  Daily.
                                     Liquidation of          Rule 6.7-O...........  As Needed.
                                      Position.
NYSE American......................  Position Limits.......  Rule 904.............  Daily.
                                     Liquidating Positions.  Rule 907.............  As Needed.
----------------------------------------------------------------------------------------------------------------


     Violation III: Large Options Position Report (LOPR)--For Listed and FLEX Equity Options and ETF Options
----------------------------------------------------------------------------------------------------------------
                                       Description of rule
                SRO                    (for review as they    Exchange rule number       Frequency of review
                                         apply to LOPR)
----------------------------------------------------------------------------------------------------------------
BZX................................  Reports Related to      Rule 18.10...........  Yearly.
                                      Position Limits.
BOX................................  Reports Related to      Rule 3150............  Yearly.
                                      Position Limits.
C2.................................  Reports Related to      Ch. 8[Rule 4.13(a)]..  Yearly.
                                      Position Limits.
                                     Reports Related to      Ch. 8 [Rule 4.13(b)].  Yearly.
                                      Position Limits.
                                     Reports Related to      Ch. 8 [Rule 4.13(d)].  Yearly.
                                      Position Limits.
Cboe...............................  Reports Related to      Rule 8.43(a) [Rule     Yearly.
                                      Position Limits.        4.13(a)].
                                     Reports Related to      Rule 8.43(b) [Rule     Yearly.
                                      Position Limits.        4.13(b)].
                                     Reports Related to      Rule 8.43(d) [Rule     Yearly.
                                      Position Limits.        4.13(d)].
EDGX...............................  Reports Related to      Rule 18.10...........  Yearly.
                                      Position Limits.
FINRA..............................  Options...............  Rule 2360(b)(5)......  Yearly.
ISE................................  Reports Related to      ISE Options 9,         Yearly.
                                      Options Position        Section 16--Reports
                                      Limits.                 Related to Options
                                                              Position Limits
                                                              [Rule 415].
GEMX...............................  Reports Related to      GEMX Options 9,        Yearly.
                                      Options Position        Section 16--Reports
                                      Limits.                 Related to Options
                                                              Position Limits
                                                              [Rule 415].
MRX................................  Reports Related to      MRX Options 9,         Yearly.
                                      Options Position        Section 16--Reports
                                      Limits.                 Related to Options
                                                              Position Limits
                                                              [Rule 415].
MIAX...............................  Reports Related to      Rule 310.............  Yearly.
                                      Position Limits.
MIAX PEARL.........................  Reports Related to      Rule 310.............  Yearly.
                                      Position Limits.
MIAX Emerald.......................  Reports Related to      Rule 310.............  Yearly.
                                      Position Limits.
MEMX...............................  Reports Related to      Rule 18.10...........  Yearly.
                                      Position Limits.
Nasdaq.............................  Reports Related to      NOM Options 9,         Yearly.
                                      Options Position        Section 16--Reports
                                      Limits.                 Related to Options
                                                              Position Limits [Ch.
                                                              III, Sect. 10].
Nasdaq BX..........................  Reports Related to      BX Options 9, Section  Yearly.
                                      Options Position        16--Reports Related
                                      Limits.                 to Options Position
                                                              Limits [Ch. III,
                                                              Sect. 10].
Nasdaq PHLX........................  Reporting of Options    PHLX Options 6E,       Yearly.
                                      Positions.              Section 2--Reporting
                                                              of Options
                                                              Positions, PHLX
                                                              Options 9, Section
                                                              13--Position Limits
                                                              [Rule 1003].
NYSE Arca..........................  Reporting of Options    Rule 6.6-O...........  Yearly.
                                      Positions.
NYSE American......................  Reporting of Options    Rule 906.............  Yearly.
                                      Positions.
----------------------------------------------------------------------------------------------------------------


                       Violation IV: Options Clearing Corporation (OCC) Adjustment Process
----------------------------------------------------------------------------------------------------------------
                                       Description of rule
                                      (as they apply to OCC
                SRO                    adjustments/by-laws    Exchange rule number       Frequency of review
                                      article V, section 1
                                        .01(a) and .02))
----------------------------------------------------------------------------------------------------------------
BZX................................  Adherence to Law......  Rule 18.1............  Yearly.
BOX................................  Adherence to Law......  Rule 3010............  Yearly.
C2.................................  Adherence to Law......  Ch. 8 [Rule 4.2].....  Yearly.
Cboe...............................  Adherence to Law......  Rule 8.2 [4.2].......  Yearly.
EDGX...............................  Adherence to Law......  Rule 18.1............  Yearly.
FINRA..............................  Violation of By-Laws    Rule 2360(b)(21).....  Yearly.
                                      and Rules of FINRA or
                                      The OCC.
ISE................................  Adherence to Law......  ISE Options 9,         Yearly.
                                                              Section 2 [Rule 401].
GEMX...............................  Adherence to Law......  GEMX Options 9,        Yearly.
                                                              Section 2 [Rule 401].
MRX................................  Adherence to Law......  MRX Options 9,         Yearly.
                                                              Section 2 [Rule 401].
MIAX...............................  Adherence to Law......  Rule 300.............  Yearly.
MIAX PEARL.........................  Adherence to Law......  Rule 300.............  Yearly.
MIAX...............................  Adherence to Law......  Rule 300.............  Yearly.
Emerald.

[[Page 73576]]

 
MEMX...............................  Adherence to Law......  Rule 18.1............  Yearly.
Nasdaq.............................  Adherence to Law......  NOM Options 9,         Yearly.
                                                              Section 2 [Ch. III,
                                                              Sect. 1].
Nasdaq BX..........................  Adherence to Law......  BX Options 9, Section  Yearly.
                                                              2 [Ch. III, Sect. 1].
Nasdaq PHLX........................  Violation of By-Laws    PHLX Options 9,        Yearly.
                                      And Rules Of OCC.       Section 24 [Rule
                                                              1050].
NYSE Arca..........................  Adherence to Law and    Rule 11.1............  Yearly.
                                      Good Business
                                      Practice.
NYSE American......................  Business Conduct......  Rule 16..............  Yearly.
----------------------------------------------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing. 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 [email protected]. Please include 
File Number 4-551 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 4-551. 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 internet website (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed plan that are filed with the 
Commission, and all written communications relating to the proposed 
plan 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 the plan also will be available for inspection and 
copying at the principal offices of NYSE American, BZX, C2, Cboe, EDGX, 
Gemini, ISE, Mercury, FINRA, Arca, Nasdaq, BOX, BX, PHLX, MIAX, MIAX 
PEARL, MIAX Emerald, and MEMX. 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 4-551 
and should be submitted on or before December 21, 2022.

V. Discussion

    The Commission finds that the proposed Amended Plan is consistent 
with the factors set forth in Section 17(d) of the Act \22\ and Rule 
17d-2(c) thereunder \23\ in that the proposed Amended Plan is necessary 
or appropriate in the public interest and for the protection of 
investors, fosters cooperation and coordination among SROs, and removes 
impediments to and fosters the development of the national market 
system. The Commission continues to believe that the Plan, as proposed 
to be amended, is an achievement in cooperation among the SRO 
participants. The Plan, as amended, will reduce unnecessary regulatory 
duplication by allocating to the designated SRO the responsibility for 
certain options-related market surveillance matters that would 
otherwise be performed by multiple SROs. The Plan promotes efficiency 
by reducing costs to firms that are members of more than one of the SRO 
participants. In addition, because the SRO participants coordinate 
their regulatory functions in accordance with the Plan, the Plan 
promotes, and will continue to promote, investor protection. Under 
paragraph (c) of Rule 17d-2, the Commission may, after appropriate 
notice and comment, declare a plan, or any part of a plan, effective. 
In this instance, the Commission believes that appropriate notice and 
comment can take place after the proposed amendment is effective. The 
primary purpose of the amendment is to add MEMX as a Participant and to 
reflect the name changes of certain Participating Organizations. By 
declaring it effective today, the amended Plan can become effective and 
be implemented without undue delay. In addition, the Commission notes 
that the prior version of this Plan was published for comment, and the 
Commission did not receive any comments thereon.\24\ Finally, the 
Commission does not believe that the amendment to the Plan raises any 
new regulatory issues that the Commission has not previously 
considered.
---------------------------------------------------------------------------

    \22\ 15 U.S.C. 78q(d).
    \23\ 17 CFR 240.17d-2(c).
    \24\ See Securities Exchange Act Release No. 85097 (February 11, 
2019), 84 FR 4871 (February 19, 2019) (File No. 4-551).
---------------------------------------------------------------------------

VI. Conclusion

    This order gives effect to the amended Plan submitted to the 
Commission that is contained in File No. 4-551.
    It is further ordered that those SRO participants that are not the 
DOSR as to a particular common member are relieved of those regulatory 
responsibilities allocated to the common member's DOSR under the 
amended Plan to the extent of such allocation.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\25\
---------------------------------------------------------------------------

    \25\ 17 CFR 200.30-3(a)(34).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2022-26076 Filed 11-29-22; 8:45 am]
BILLING CODE 8011-01-P


