84026 Federal Register / Vol. 88, No. 230 / Friday, December 1, 2023 / Notices 

1See letter from the Participants to Vanessa 

Countryman, Secretary, Commission, dated June 2, 

2023 (the ‘‘Exemption Request’’). Unless otherwise 

noted, capitalized terms are used as defined in the 

CAT NMS Plan. 

2 15 U.S.C. 78mm(a)(1). 

3 17 CFR 242.608(e). 

4 17 CFR 240.17a–1. 

5The CAT NMS Plan was approved by the 

Commission, as modified, on Nov. 15, 2016. See 

Securities Exchange Act Release No. 79318 (Nov. 

15, 2016), 81 FR 84696 (Nov. 23, 2016) (‘‘CAT NMS 

Plan Approval Order’’). 

6 15 U.S.C. 78mm(a)(1). 

7 17 CFR 242.608(e). 

8See Exemptive Request, at 2. 

‘‘Investment Company Act’’) requires a 

registered management investment 

company (‘‘fund’’) to (1) file a report 

with the Commission on Form N–CSR 

(17 CFR 249.331 and 274.128) not later 

than 10 days after the transmission of 

any report required to be transmitted to 

shareholders under rule 30e–1 under 

the Investment Company Act, and (2) 

file with the Commission a copy of 

every periodic or interim report or 

similar communication containing 

financial statements that is transmitted 

by or on behalf of such fund to any class 

of such fund’s security holders and that 

is not required to be filed with the 

Commission under (1) above, not later 

than 10 days after the transmission to 

security holders. The purpose of the 

collection of information required by 

rule 30b2–1 is to meet the disclosure 

requirements of the Investment 

Company Act and certification 

requirements of the Sarbanes-Oxley Act 

of 2002 (Pub. L. 107–204, 116 Stat. 745 

(2002)), and to provide investors with 

information necessary to evaluate an 

interest in the fund. 

The Commission estimates that there 

are 2,728 funds, with a total of 13,449 

portfolios, that are governed by the rule. 

For purposes of this analysis, the 

burden associated with the 

requirements of rule 30b2–1 has been 

included in the collection of 

information requirements of rule 30e–1 

(17 CFR 270.30e–1) and Form N–CSR, 

rather than the rule. The rule 30b2–1 

information collection, however, 

imposes a one hour burden for 

administrative purposes and we are 

maintaining that one hour burden. 

The collection of information under 

rule 30b2–1 is mandatory. The 

information provided under rule 30b2– 

1 is not kept confidential. An agency 

may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless it 

displays a currently valid OMB control 

number. 

Written comments are invited on: (a) 

whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

Commission, including whether the 

information shall have practical utility; 

(b) the accuracy of the Commission’s 

estimate of the burden of the collection 

of information; (c) ways to enhance the 

quality, utility, and clarity of the 

information collected; and (d) ways to 

minimize the burden of the collection of 

information on respondents, including 

through the use of automated collection 

techniques or other forms of information 

technology. Consideration will be given 

to comments and suggestions submitted 

by January 30, 2024. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

under the PRA unless it displays a 

currently valid OMB control number. 

Please direct your written comments 

to: David Bottom, Acting Director/Chief 

Information Officer, Securities and 

Exchange Commission, c/o John 

Pezzullo, 100 F Street NE, Washington, 

DC 20549 or send an email to: PRA_

Mailbox@sec.gov. 

Dated: November 27, 2023. 

Christina Z. Milnor, 

Assistant Secretary. 

[FR Doc. 2023–26403 Filed 11–30–23; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–99023; File No. 4–698] 

Order Granting an Exemption Pursuant 

to Section 36(a)(1) of the Securities 

Exchange Act of 1934 and Rule 608(e) 

of Regulation NMS Under the 

Exchange Act, Relating to the 

Recordkeeping Requirements for 

Industry Test Data, as Required by 

Rule 17a–1 Under the Exchange Act 

and Certain Provisions of the National 

Market System Plan Governing the 

Consolidated Audit Trail 

November 27, 2023. 

I. Introduction 

By letter dated June 2, 2023, BOX 

Exchange LLC, Cboe BYX Exchange, 

Inc., Cboe BZX Exchange, Inc., Cboe 

EDGA Exchange, Inc., Cboe EDGX 

Exchange, Inc., Cboe C2 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, LLC, 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., 

(collectively, the ‘‘Participants’’) 

requested that the Securities and 

Exchange Commission (‘‘Commission’’) 

grant exemptive relief to the 

Participants,1 pursuant to its authority 

under section 36(a)(1) of the Securities 

Exchange Act of 1934 (‘‘Exchange 

Act’’) 2 and Rule 608(e) of Regulation 

NMS 3 under the Exchange Act, from 

certain recordkeeping requirements for 

retaining data from industry testing, in 

Rule 17a–1 4 of the Exchange Act and 

certain provisions of the National 

Market System Plan Governing the 

Consolidated Audit Trail (‘‘CAT NMS 

Plan’’).5

Section 36(a)(1) of the Exchange Act 

grants the Commission the authority, 

with certain limitations, to 

‘‘conditionally or unconditionally 

exempt any person, security, or 

transaction . . . from any provision or 

provisions of [the Exchange Act] or of 

any rule or regulation thereunder, to the 

extent that such exemption is necessary 

or appropriate in the public interest, 

and is consistent with the protection of 

investors.’’ 6 Under Rule 608(e) of 

Regulation NMS, the Commission may 

‘‘exempt from [Rule 608], either 

unconditionally or on specified terms 

and conditions, any self-regulatory 

organization, member thereof, or 

specified security, if the Commission 

determines that such exemption is 

consistent with the public interest, the 

protection of investors, the maintenance 

of fair and orderly markets and the 

removal of impediments to, and 

perfection of the mechanism of, a 

national market system.’’ 7

For the reasons set forth below, the 

Commission believes that it is 

consistent with the purposes of the 

Exchange Act to grant exemptive relief 

relating to the Participants’ recordkeeping and data retention requirements 

in Rule 17a–1 of the Exchange Act, 

Section 9.1 of the CAT NMS Plan, 

Section 1.4 of Appendix D of the CAT 

NMS Plan and certain provisions in 

Appendix C of the CAT NMS Plan (to 

the extent any may apply). 

II. Background and Request for Relief 

In the Exemption Request, the 

Participants state that CAT Reporters, 

including both Participants and 

Industry Members, engage in testing 

related to the reporting of order and 

transaction data to the CAT, both 

pursuant to required testing and testing 

on a voluntary basis.8 The Participants 

explain that in connection with this 

testing, CAT LLC, through the Plan 


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Federal Register / Vol. 88, No. 230 / Friday, December 1, 2023 / Notices 84027 

9 Id. 

10 Id. at note 6. 

11 Id. at 4. 

12 Id. at 1. 

13 Id. at 2. 

14See Exemptive Request, at 3. 

15 Id. at 2–3. 

16 Id. 

17 Id., at 3 (referencing Appendix C of the CAT 

NMS Plan at C–13, C–29, C–129). 

18 Id. The Participants reiterate their belief that 

the more specific three month requirement should 

apply by referring to a statement in Appendix C that 

‘‘[t]he Central Repository will retain data, including 

the Raw Data, linked data, and corrected data, for 

at least six years,’’ to support this view. See id. 

(referencing Appendix C of the CAT NMS Plan at 

C–29 (‘‘All of the data (including both corrected and 

uncorrected or rejected data) in the Central 

Repository must be kept online for a rolling six year 

period, which would create a six year historical 

audit trail.’’); Appendix C of the CAT NMS Plan at 

C–129 (‘‘The Participants are requiring data for six 

years to be kept online in an easily accessible 

format to enable regulators to have access to six 

years of audit trail materials for purposes of its 

regulation.’’)). 

19 Id. at 3–4. 

20 Id. at 3. 

21 Id. 

22 Id. at 4. 

23 Id. 

24See Exemptive Request, at 4. 

25 Id. 

26 Id. 

27 Id. 

28 Id. 

Processor, retains the test data 

submitted by Industry Members and 

Participants, feedback files related to 

such data, and output files that hold the 

detailed transactions (such test data and 

files are referred to herein as ‘‘Industry 

Test Data’’).9 The Participants further 

state that this exemption request only 

involves Industry Test Data related to 

the CAT order and transaction system, 

not the customer account and 

information system.10 The Participants 

request that the Commission grant 

exemptive relief from the longer data 

retention time periods set forth in Rule 

17a–1 of the Exchange Act, Section 9.1 

of the CAT NMS Plan, Section 1.4 of 

Appendix D of the CAT NMS Plan and 

certain provisions in Appendix C of the 

CAT NMS Plan, only as those retention 

requirements pertain to Industry Test 

Data.11 The Participants request that in 

granting this relief, the Commission will 

only require the Participants, acting 

through CAT LLC and the Plan 

Processor, to retain Industry Test Data 

for a period of three months.12

In support of their request, the 

Participants state that Appendix D of 

the CAT NMS Plan specifically requires 

the retention of Industry Test Data for 

only three months,13 and that this 

specific provision governs the retention 

period for Industry Test Data, in spite of 

the lengthier general recordkeeping 

provisions in the CAT NMS Plan and 

the even more general recordkeeping 

requirements of Rule 17a–1 under the 

Exchange Act.14 The Participants state 

that Section 9.1 of the CAT NMS Plan 

incorporates by reference Rule 17a–1 

under the Exchange Act, which requires 

every national securities exchange and 

national securities association ‘‘to keep 

and preserve at least one copy of all 

documents, including all 

correspondence, memoranda, papers, 

books, notices, accounts, and other such 

records as shall be made or received by 

it in the course of its business as such 

and in the conduct of its self-regulatory 

activity,’’ and to keep all such 

documents ‘‘for a period of not less than 

five years, the first two years in an 

easily accessible place, subject to the 

destruction and disposition provisions 

of Rule 17a–6.’’ 15 The Participants also 

state that they do not believe that 

Industry Test Data constitutes 

documents covered by Rule 17a–1 

under the Exchange Act because to 

conclude as much would mean that the 

specific provision in Appendix D of the 

Plan calling for a three month retention 

of Industry Test Data would not have 

any application and would be rendered 

meaningless.16 The Participants further 

state that Section 1.4 of Appendix D, 

along with certain sections of Appendix 

C, of the CAT NMS Plan requires that 

the CAT have a record retention policy 

that makes ‘‘data directly available and 

searchable electronically without 

manual intervention for at least six 

years.’’ 17 The Participants argue that 

this six-year requirement only applies to 

CAT data in the production 

environment of the Central Repository, 

and not to Industry Test Data, which has 

a specific provision calling for the data 

to be retained for three months only.18

The Participants state that retaining 

Industry Test Data for only three months 

would achieve approximately $1 

million per year in savings.19 In support 

of this claim, the Participants note that 

the Plan Processor has been 

accumulating and retaining Industry 

Test Data for years, and thus the current 

size of the Industry Test Data is 

approximately 20 petabytes, growing at 

an average rate of 500 terabytes per 

month.20 The Participants state that if 

the Plan Processor were to remove 

Industry Test Data older than three 

months on a rolling monthly basis, then 

it estimates that the CAT would reach 

a steady state of retaining approximately 

two petabytes of Industry Test Data per 

year.21

The Participants further state that the 

costs of retaining the Industry Test Data 

far outweigh any benefits and that there 

is little to no regulatory value in 

retaining the data,22 and that the 

primary purpose for retaining Industry 

Test Data for three months is to allow 

CAT Reporters access to the data to 

facilitate their own testing needs.23

While the Participants have used the 

Industry Test Data for user acceptance 

testing related to past CAT releases, to 

date, the Participants state that there has 

been limited use of the Industry Test 

Data that adds regulatory value.24 The 

Participants state that on many days, 

there are no active queries related to 

Industry Test Data, and when there have 

been limited queries performed in the 

industry test environment, these queries 

generally were concentrated around 

Participant user acceptance test periods 

for releases.25 The Participants state that 

going forward, such Participant user 

acceptance testing would be limited as 

the CAT functionality is in the 

maintenance, not development, phase.26

The Participants further state that the 

substantial price tag of $1 million per 

year to retain the Industry Test Data 

beyond three months is not warranted 

by this limited incidental regulatory 

use, as the retention of Industry Test 

Data beyond three months provides 

little or no regulatory benefit.27 The 

Participants also believe that the 

Commission’s prior approval of the CAT 

NMS Plan with the specific requirement 

to retain such data for three months 

supports their conclusion that the 

retention of Industry Test Data beyond 

three months is not warranted.28

III. Discussion of Participants’ 

Exemption Request 

The Commission has carefully 

considered the Participants’ exemption 

request. The Commission believes, for 

the reasons stated below, that granting 

exemptive relief from the recordkeeping 

and data retention time periods set forth 

in Rule 17a–1 of the Exchange Act, 

Section 9.1 of the CAT NMS Plan, 

Section 1.4 of Appendix D of the CAT 

NMS Plan and certain provisions in 

Appendix C of the CAT NMS Plan (to 

the extent any may apply), for Industry 

Test Data, is, pursuant to section 

36(a)(1) of the Exchange Act, 

appropriate in the public interest and 

consistent with the protection of 

investors, and that pursuant to Rule 

608(e), this exemption is consistent with 

the public interest, the protection of 

investors, the maintenance of fair and 

orderly markets and the removal of 

impediments to, and the perfection of a 

national market system. 

In their exemption request, the 

Participants state that they retain 


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84028 Federal Register / Vol. 88, No. 230 / Friday, December 1, 2023 / Notices 

29 Id. at 4. 

30 Id. at 4. The Participants state that there have 

been 406 queries in the industry test environment, 

which is an average of 27 queries per month during 

this 15-month period. Id. 

31 Id. at 2. Specifically, Section 1.2 of Appendix 

D of the CAT NMS Plan requires that ‘‘[o]perational 

metrics associated with industry testing (including 

but not limited to testing results, firms who 

participated, and amount of data reported and 

linked) must be stored for the same duration as the 

CAT production data.’’ Id. Industry Test Data does 

not include such operational metrics associated 

with industry testing, and operational metrics will 

continue to be retained for six years. 

32 15 U.S.C. 78mm(a)(1). 

33 17 CFR 242.608(e). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3For example, subscribers to the intraday product 

will receive the first calculation of intraday data by 

approximately 9:42 a.m. ET, which represents data 

captured from 9:30 a.m. to 9:40 a.m. Subscribers 

will receive the next update at 9:52 a.m., 

representing the data previously provided together 

with data captured from 9:40 a.m. through 9:50 

a.m., and so forth. Each update will represent the 

aggregate data captured from the current 

‘‘snapshot’’ and all previous ‘‘snapshots.’’ 

Industry Test Data through CAT LLC 

and the Plan Processor, and will 

continue to retain such data for three 

months pursuant to the requirement in 

Section 1.2 of Appendix D of the CAT 

NMS Plan.29 The Commission believes 

that the regulatory value does not justify 

the approximately $1 million per year 

cost for retaining Industry Test Data 

beyond three months. As the 

Participants note, the primary purpose 

of Industry Test Data is to facilitate CAT 

Reporter testing needs. Indeed, the 

Participants stated that over the past 

fifteen months, queries of Industry Test 

Data generally were concentrated 

around Participant user acceptance test 

periods for releases.30 Additionally, 

Section 1.2 of the CAT NMS Plan 

requires the operational metrics 

associated with industry testing to be 

retained for six years.31

Based on the foregoing, pursuant to 

section 36(a)(1) of the Exchange Act, it 

is appropriate in the public interest and 

consistent with the protection of 

investors, and pursuant to Rule 608(e), 

it is consistent with the public interest, 

the protection of investors, the 

maintenance of fair and orderly markets 

and the removal of impediments to, and 

the perfection of a national market 

system to grant exemptive relief that 

exempts each Participant from the 

longer recordkeeping and data retention 

requirements for Industry Test Data as 

set forth in Rule 17a–1 under the 

Exchange Act, Section 9.1 of the CAT 

NMS Plan, Section 1.4 of Appendix D 

of the CAT NMS Plan and Appendix C 

of the CAT NMS Plan (to the extent any 

may apply). 

IV. Conclusion 

The Commission believes it is 

appropriate to grant exemptive relief 

that exempts each Participant from the 

longer recordkeeping and data retention 

requirements for Industry Test Data as 

set forth in Rule 17a–1 under the 

Exchange Act, Section 9.1 of the CAT 

NMS Plan, Section 1.4 of Appendix D 

of the CAT NMS Plan and Appendix C 

of the CAT NMS Plan (to the extent any 

may apply). 

Accordingly, it is hereby ordered, 

pursuant to section 36(a)(1) of the 

Exchange Act,32 and Rule 608(e) of the 

Exchange Act 33 that the Participants are 

granted an exemption from the longer 

recordkeeping and data retention 

requirements for Industry Test Data as 

set forth in Rule 17a–1 under the 

Exchange Act, Section 9.1 of the CAT 

NMS Plan, Section 1.4 of Appendix D 

of the CAT NMS Plan and Appendix C 

of the CAT NMS Plan (to the extent any 

may apply). 

By the Commission. 

Christina Z. Milnor, 

Assistant Secretary. 

[FR Doc. 2023–26407 Filed 11–30–23; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–99027; File No. SR– 

CboeBZX–2023–094] 

Self-Regulatory Organizations; Cboe 

BZX Exchange, Inc.; Notice of Filing 

and Immediate Effectiveness of a 

Proposed Rule Change To Amend Its 

Fee Schedule 

November 28, 2023. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’),1 and Rule 19b–4 thereunder,2

notice is hereby given that on November 

15, 2023, Cboe BZX Exchange, Inc. (the 

‘‘Exchange’’ or ‘‘BZX’’) filed with the 

Securities and Exchange Commission 

(the ‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III below, which Items have been 

prepared by the Exchange. The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

change from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

Cboe BZX Exchange, Inc. (the 

‘‘Exchange’’ or ‘‘BZX’’) proposes to 

amend its Fee Schedule. The text of the 

proposed rule change is provided in 

Exhibit 5. 

The text of the proposed rule change 

is also available on the Exchange’s 

website (http://markets.cboe.com/us/ 

equities/regulation/rule_filings/bzx/), at 

the Exchange’s Office of the Secretary, 

and at the Commission’s Public 

Reference Room. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

Exchange included statements 

concerning the purpose of and basis for 

the proposed rule change and discussed 

any comments it received on the 

proposed rule change. The text of these 

statements may be examined at the 

places specified in Item IV below. The 

Exchange has prepared summaries, set 

forth in sections A, B, and C below, of 

the most significant aspects of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The Exchange proposes to update its 

Fee Schedule to provide a 20% discount 

on fees assessed to BZX Members and 

non-Members that purchase $20,000 or 

more of historical Open-Close Data, 

effective November 15, 2023 through 

December 31, 2023. 

By way of background, the Exchange 

currently offers End-of-Day (‘‘EOD’’) and 

Intraday Open-Close Data (collectively, 

‘‘Open-Close Data’’). EOD Open-Close 

Data is an end-of-day volume summary 

of trading activity on the Exchange at 

the option level by origin (customer, 

professional customer, broker-dealer, 

and market maker), side of the market 

(buy or sell), price, and transaction type 

(opening or closing). The customer and 

professional customer volume is further 

broken down into trade size buckets 

(less than 100 contracts, 100–199 

contracts, greater than 199 contracts). 

The EOD Open-Close Data is proprietary 

BZX trade data and does not include 

trade data from any other exchange. It 

is also a historical data product and not 

a real-time data feed. The Exchange also 

offers Intraday Open-Close Data, which 

provides similar information to that of 

EOD Open-Close Data but is produced 

and updated every 10 minutes during 

the trading day. Data is captured in 

‘‘snapshots’’ taken every 10 minutes 

throughout the trading day and is 

available to subscribers within five 

minutes of the conclusion of each 10- 

minute period.3 The Intraday OpenVerDate Sep<11>2014 18:47 Nov 30, 2023 Jkt 262001 PO 00000 Frm 00133 Fmt 4703 Sfmt 4703 E:\FR\FM\01DEN1.SGM 01DEN1

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