Federal Register / Vol. 86, No. 182 / Thursday, September 23, 2021 / Notices 52933 

The NRC welcomes comments from the 

public on these and any areas that they 

believe are relevant to these topics. 

The NRC encourages all interested 

parties to comment on the Full Draft 

Strategic Plan. Stakeholder feedback 

will be valuable in helping the 

Commission develop a final draft 

Strategic Plan that has the benefit of the 

many views of the public and the 

regulated civilian nuclear industry. The 

NRC will consider the comments 

submitted, as appropriate, in the 

preparation of the final draft FYs 2022– 

2026 Strategic Plan. The NRC does not 

anticipate preparing individual 

responses to each comment received. 

Dated: September 17, 2021. 

For the Nuclear Regulatory Commission. 

Wesley W. Held, 

(Acting), Secretary of the Commission. 

[FR Doc. 2021–20542 Filed 9–22–21; 8:45 am] 

BILLING CODE 7590–01–P 

NUCLEAR REGULATORY 

COMMISSION 

[NRC–2020–0278] 

Measuring, Evaluating, and Reporting 

Radioactive Material in Liquid and 

Gaseous Effluents and Solid Waste 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Regulatory guide; issuance. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC) is issuing revision 3 

of Regulatory Guide (RG) 1.21, 

‘‘Measuring, Evaluating, and Reporting 

Radioactive Material in Liquid and 

Gaseous Effluents and Solid Waste.’’ 

The revision of RG describes an 

approach that is acceptable to the staff 

of the NRC to meet regulatory 

requirements for; (1) measuring, 

evaluating, and reporting plant related 

radioactivity in effluents and solid 

radioactive waste shipments from NRC 

licensed facilities, and (2) assessing and 

reporting the public dose to demonstrate 

compliance with NRC regulations. 

DATES: Revision 3 of RG 1.21 is available 

on September 23, 2021. 

ADDRESSES: Please refer to Docket ID 

NRC–2020–0278 when contacting the 

NRC about the availability of 

information regarding this document. 

You may obtain publicly available 

information related to this document 

using any of the following methods: 

• Federal Rulemaking Website: Go to 

https://www.regulations.gov and search 

for Docket ID NRC–2020–0278. Address 

questions about Docket IDs in 

Regulations.gov to Stacy Schumann; 

telephone: 301–415–0624; email: Stacy.

Schumann@nrc.gov. For technical 

questions, contact the individual(s) 

listed in the FOR FURTHER INFORMATION

CONTACT section of this document. 

• NRC’s Agencywide Documents 

Access and Management System 

(ADAMS): You may obtain publicly 

available documents online in the 

ADAMS Public Documents collection at 

https://www.nrc.gov/reading-rm/ 

adams.html. To begin the search, select 

‘‘Begin Web-based ADAMS Search.’’ For 

problems with ADAMS, please contact 

the NRC’s Public Document Room (PDR) 

reference staff at 1–800–397–4209, 301– 

415–4737, or by email to pdr.resource@

nrc.gov. The ADAMS accession number 

for each document referenced (if it is 

available in ADAMS) is provided the 

first time that it is mentioned in this 

document. 

• Attention: The PDR, where you may 

examine and order copies of public 

documents is currently closed. You may 

submit your request to the PDR via 

email at pdr.resource@nrc.gov or call 1– 

800–397–4209 or 301–415–4737 

between 8:00 a.m. and 4:00 p.m. (ET), 

Monday through Friday, except Federal 

holidays. 

Revision 3 of RG 1.21 and the 

regulatory analysis may be found in 

ADAMS under Accession Nos. 

ML21139A224 and ML20287A434, 

respectively. 

Regulatory guides are not 

copyrighted, and NRC approval is not 

required to reproduce them. 

FOR FURTHER INFORMATION CONTACT: 

Steven Garry, Office of Nuclear Reactor 

Regulation, telephone: 301–415–2766, 

email: Steven.Garry@nrc.gov, and Kyle 

Song, Office of Nuclear Regulatory 

Research, telephone: 301–415–3637, 

email: Kyle.Song@nrc.gov. Both are staff 

of the U.S. Nuclear Regulatory 

Commission, Washington, DC 20555– 

0001. 

SUPPLEMENTARY INFORMATION: 

I. Discussion 

The NRC is issuing a new guide in the 

NRC’s ‘‘Regulatory Guide’’ series. This 

series was developed to describe and 

make available to the public information 

regarding methods that are acceptable to 

the NRC staff for implementing specific 

parts of the agency’s regulations, 

techniques that the NRC staff uses in 

evaluating specific issues or postulated 

events, and data that the NRC staff 

needs in its review of applications for 

permits and licenses. 

II. Additional Information 

Revision 3 of RG 1.21 was issued with 

a temporary identification of Draft 

Regulatory Guide (DG) 1377. The NRC 

published a notice of the availability of 

DG–1377 in the Federal Register on 

January 5, 2021, (86 FR 326) for a 45- 

day public comment period. The public 

comment period closed on February 19, 

2021. Public comments on DG–1377 and 

the staff responses to the public 

comments are available under ADAMS 

under Accession No. ML21132A226. 

III. Congressional Review Act 

This RG is a rule as defined in the 

Congressional Review Act (5 U.S.C. 

801–808). However, the Office of 

Management and Budget has not found 

it to be a major rule as defined in the 

Congressional Review Act. 

IV. Backfitting, Forward Fitting and 

Issue Finality 

Revision 3 of RG 1.21 does not 

constitute backfitting as defined in 10 

CFR 50.109, ‘‘Backfitting,’’ and as 

described in NRC Management Directive 

(MD) 8.4, ‘‘Management of Backfitting, 

Forward Fitting, Issue Finality, and 

Information Requests’’; constitute 

forward fitting as that term is defined 

and described in MD 8.4; or affect the 

issue finality of any approval issued 

under 10 CFR part 52. As explained in 

Revision 3 of RG 1.21, applicants and 

licensees would not be required to 

comply with the positions set forth in 

the RG. 

Dated: September 17, 2021. 

For the Nuclear Regulatory Commission. 

Meraj Rahimi, 

Chief, Regulatory Guide and Programs 

Management Branch, Division of Engineering, 

Office of Nuclear Regulatory Research. 

[FR Doc. 2021–20565 Filed 9–22–21; 8:45 am] 

BILLING CODE 7590–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[File No. 4–757; Release No. 93051/ 

September 17, 2021] 

Securities Exchange Act of 1934 

In the Matter of: Joint Industry Plan; Order 

Approving, as Modified, a National Market 

System Plan Regarding Consolidated Equity 

Market Data. 

Order Denying Stay 

On August 6, 2021, the Commission 

issued Joint Industry Plan; Order 

Approving, as Modified, a National 

Market System Plan Regarding 

Consolidated Equity Market Data, 

Release, No. 34–92586 (the ‘‘CT Plan 

Order’’). It was published five days later 

in the Federal Register. See 86 FR 

44,142 (Aug. 11, 2021). Later that 

month, The Nasdaq Stock Market LLC, 

Nasdaq BX, Inc., Nasdaq PHLX LLC, 


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1Petitioners filed a stay motion with the 

Commission dated August 19, 2021. Due to an 

administrative oversight, Commission staff did not 

learn of the filing and bring it to the 

Commissioners’ attention until three weeks later. 

The Commission has issued this order 

expeditiously after becoming aware of the filing 

and, in any event, well within ‘‘a reasonable 

period’’ under Section 25(c)(2). 

New York Stock Exchange LLC, NYSE 

American LLC, NYSE Arca, Inc., NYSE 

Chicago, Inc., NYSE National, Inc., Cboe 

BYX Exchange, Inc., Cboe BZX 

Exchange, Inc., Cboe EDGA Exchange, 

Inc., Cboe EDGX Exchange, Inc., and 

Cboe Exchange, Inc. (the ‘‘exchanges’’) 

filed with the Commission a motion to 

stay the effect of the CT Plan Order 

pending final resolution of their 

petitions for review filed in the U.S. 

Court of Appeals for the D.C. Circuit 

that challenge the CT Plan Order and 

the Order Directing the Exchanges and 

the Financial Industry Regulatory 

Authority to Submit a New National 

Market System Plan Regarding 

Consolidated Equity Market Data, 

Release No. 88827, 85 FR 28,702 (May 

13, 2020) (the ‘‘NMS Governance 

Order’’).1

Pursuant to Section 25(c)(2) of the 

Securities Exchange Act of 1934 

(‘‘Exchange Act’’) and Section 705 of the 

Administrative Procedure Act, the 

Commission has discretion to stay the 

CT Plan Order. See 15 U.S.C. 78y(c)(2); 

5 U.S.C. 705. As discussed below, 

however, the exchanges have not met 

their burden to demonstrate that a stay 

of the CT Plan Order is appropriate. 

Accordingly, the exchanges’ stay motion 

is denied. 

1. Staying a final agency action 

pending review is an ‘‘extraordinary 

remedy.’’ 85 FR 36,921, 36,921 (June 18, 

2020) (Commission order denying stay 

of NMS Governance Order). The 

Commission has discretion to grant a 

stay of its rules pending judicial review 

if it finds that ‘‘justice so requires.’’ 15 

U.S.C. 78y(c)(2); 5 U.S.C. 705. 

Traditionally, the Commission uses ‘‘the 

familiar four-factor framework’’ when 

considering whether a stay during 

litigation is appropriate: 

Whether there is a strong likelihood 

that a party will succeed on the merits 

in a proceeding challenging the 

particular Commission action (or, if the 

other factors strongly favor a stay, that 

there is a substantial case on the merits); 

whether the issuance of a stay would 

likely serve the public interest; 

whether there would be substantial 

harm to any person if the stay were 

granted; and 

whether, without a stay, a party will 

suffer imminent, irreparable injury. In re 

Am. Petroleum Inst., Release No. 68197, 

2012 WL 5462858, at *2 (Nov. 8, 2012); 

see Nken v. Holder, 556 U.S. 418, 434– 

35 (2009) (noting that the harm-to-others 

factor and the public-interest factor 

‘‘merge when the Government is the 

opposing party’’). 

2. The exchanges have not met their 

burden to demonstrate a likelihood of 

success on the merits. The Commission 

has previously addressed the three 

arguments the exchanges make, not only 

in the CT Order itself, but also in 

denying a stay of the NMS Governance 

Order and in the prior litigation 

challenging that order. None has merit. 

First, the exchanges state that the CT 

Plan Order ‘‘unlawfully vests 

representatives of [non-self-regulatory 

organizations, or non-SROs] with voting 

power on the plan’s operating 

committee,’’ Mot. 5, because, in their 

view, SROs—and only SROs—may have 

voting power on a national market 

system operating committee. This 

argument misunderstands the statutory 

scheme and the Commission’s authority. 

Section 11A(a)(2) directs the 

Commission to use its authority under 

the Exchange Act to facilitate the 

establishment of the national market 

system in accordance with and in 

furtherance of Congress’s specific 

findings and objectives. One of 

Congress’s express objectives in Section 

11A(a)(1) is to assure the availability to 

brokers, dealers, and investors of 

information with respect to quotations 

for and transactions in securities. See 15 

U.S.C. 78k–1(a)(1)(C). And Congress 

expressly authorized the Commission in 

Section 11A(c)(1)(B) to prescribe rules 

‘‘to assure the prompt, accurate, reliable, 

and fair collection, processing, 

distribution, and publication of 

information with respect to quotations 

for and transactions in’’ NMS securities. 

Id. § 78k–1(c)(1)(B). Section 11A(a)(3) 

grants the Commission additional 

authority, including ‘‘to authorize or 

require self-regulatory organizations to 

act jointly’’ with respect to ‘‘matters as 

to which they share authority under this 

chapter in planning, developing, 

operating, or regulating a national 

market system.’’ Id. § 78k–1(a)(3)(B); see 

also 17 CFR 242.608(a). Pursuant to its 

authority under Section 11A, as the CT 

Plan Order explained, the Commission 

may permit or require the operating 

committee to include voting rights for 

non-SROs. See 86 FR at 44,156–58. 

Against this backdrop, the exchanges 

insist that Section 11A(a)(3)(B) 

forecloses the Commission from 

extending voting power to 

representatives of non-SROs. But 

nothing in the text of that provision 

constrains the manner in which the 

Commission can regulate the operating 

committee. Section 11A(a)(3)(B) 

authorizes the Commission to require 

the SROs to act ‘‘jointly’’ in furtherance 

of Section 11A’s goals—which the CT 

Plan Order does. It does not provide that 

the Commission can only include the 

SROs in its regulation of the national 

market system or indicate that acting 

‘‘jointly’’ means acting ‘‘jointly and 

exclusively.’’ CT Plan Order, 86 FR at 

44,157. 

Indeed, here the Commission is 

requiring joint action with respect to the 

planning, development, and operation 

of a national market system plan 

governing dissemination of consolidated 

equity market data to further the goals 

of Section 11A(c). That provision tasks 

the Commission with prescribing rules 

to ensure ‘‘the prompt, accurate, 

reliable, and fair collection, processing, 

distribution, and publication of 

information with respect to quotations 

for and transactions in securities and 

the fairness and usefulness of the form 

and content of such information,’’ and 

expressly contemplates the involvement 

of non-SROs in that process. See 15 

U.S.C. 78k–1(c)(1). Moreover, as the CT 

Plan Order stated, ‘‘an operating 

committee that takes into account views 

from non-SRO members that are charged 

with carrying out the objectives of the 

CT Plan will have an overall improved 

governance structure that better 

supports those goals, because it will 

reflect a more diverse set of perspectives 

from a range of market participants, 

including significant subscribers of SIP 

core data products.’’ 86 FR at 44,157. 

Relying on the expressio unius canon, 

the exchanges claim that Section 11A’s 

reference to the Commission’s ability to 

order SROs to ‘‘act jointly’’ categorically 

precludes the Commission from 

allowing any non-SRO entity to 

participate in plan governance. Mot. 6– 

7. But, given the express contemplation 

of the involvement of non-SROs in the 

dissemination of national market system 

data elsewhere in Section 11A, see 15 

U.S.C. 78k–1(c)(1), this reference to joint 

SRO action does not preclude their 

inclusion. Section 11A’s text, structure, 

and history demonstrate Congress’s 

intent to provide the Commission with 

flexibility in carrying out the 

enumerated statutory goals. And 

granting non-SROs voting power is 

consistent with Section 11A for the 

reasons discussed above. 

Nor is the Commission expanding its 

authority to regulate entities over which 

it does not otherwise have authority. 

Instead, the CT Plan Order requires the 

plan operating committee to include 

non-SROs. Any specific non-SRO 

selected to be on an operating 


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Federal Register / Vol. 86, No. 182 / Thursday, September 23, 2021 / Notices 52935 

committee can choose to participate or 

not. 

The exchanges likewise err in arguing 

that ‘‘Section 11A’s reference to ‘selfregulatory organizations’ would be 

entirely superfluous if . . . the statute 

does not in fact limit the Commission’s 

‘act jointly’ authority to SROs alone.’’ 

Mot. 8. As the CT Plan Order explained, 

in granting the Commission broad 

powers, Congress was cognizant of how 

doing so could raise antitrust concerns. 

The provision allowing or requiring 

SROs to ‘‘act jointly’’ enables the 

Commission to require joint activity that 

otherwise might raise antitrust 

concerns. 86 FR at 44,157–58 & n.242; 

see Brief for NYSE Group, Inc. as 

Amicus Curiae, 2007 WL 173673, at *8, 

in Credit Suisse Sec. (USA) LLC v. 

Billing, 551 U.S. 264 (2007) (NYSE 

previously acknowledging that the 

Exchange Act ‘‘enables the Commission 

to require joint activity that otherwise 

might be asserted to have an impact on 

competition, where the activity serves 

the public interest and the interests of 

investors’’). And even if Section 11A’s 

grant of authority to permit or require 

SROs to act jointly could be read as 

superfluous or redundant of other 

Commission authority to oversee SROs, 

Congress’s decision to remove any 

doubt that the Commission may 

authorize joint action by SROs cannot 

fairly be read as a conscious choice to 

limit the Commission’s ability to require 

non-SRO participation. 

The exchanges are on no firmer 

ground in arguing that, ‘‘even if the 

Exchange Act did not foreclose the 

Commission’s effort to grant voting 

power to representatives of non-SROs, 

Rule 608 ‘‘plainly’’ does. Mot. 9. Rule 

608 implements Section 11A(a)(3)(B), 

authorizing joint action in the creation, 

operation, and implementation of 

national market system plans. 

Specifically, it provides that ‘‘[a]ny two 

or more self-regulatory organizations, 

acting jointly, may file a national market 

system plan’’ and that ‘‘[s]elf-regulatory 

organizations are authorized to act 

jointly in’’ ‘‘[p]lanning, developing, and 

operating any national market 

subsystem or facility contemplated by a 

national market system plan,’’ 

‘‘[p]reparing and filing a national market 

system plan,’’ and ‘‘[i]mplementing or 

administering an effective national 

market system plan.’’ 17 CFR 

242.608(a). Nothing in the rule, which 

authorizes the SROs to act jointly, limits 

the Commission’s ability to extend 

voting right to non-SROs under the 

Commission’s Section 11A authority. To 

‘‘act jointly’’ means to act together or 

cooperatively. There is no indication 

that in using the same phrase as in 

Section 11A the Commission intended 

to attribute a different meaning to that 

phrase or to constrain its own discretion 

in achieving Section 11A’s goals. 

Nor does the exchanges’ reference 

(Mot. 6) to a remark at oral argument in 

the prior litigation regarding the NMS 

Governance Order satisfy their burden 

to show that they now have a likelihood 

of success on the merits. See In re 

Adelphia Commc’ns Corp., 336 B.R. 

610, 636 n.44 (Bankr. S.D.N.Y. 2006) 

(‘‘Thoughts voiced by judges in oral 

argument do not always find their way 

into final decisions, often intentionally 

and for good reason.’’), aff’d, 342 B.R. 

122 (S.D.N.Y. 2006); Bd. of Trade of City 

of Chicago v. SEC, 883 F.2d 525, 530 

(7th Cir. 1989) (‘‘Comments by 

Commissioners during a meeting are no 

more the ‘decision’ of the Commission 

than comments by judges of this court 

during oral argument are our opinion or 

judgment.’’). 

Second, the exchanges contend that 

‘‘the CT Plan Order impermissibly 

allocates operating committee votes to 

‘exchange groups’—rather than to each 

individual affiliated exchange—with 

each group limited to a maximum of 

two votes, no matter the number of 

exchanges in the group,’’ which under 

the exchanges’ view gives too much 

power to non-SROs and also 

disadvantages affiliated SROs. Mot. 10. 

The Commission in the CT Plan Order, 

just as it did in the NMS Governance 

Order, thoroughly considered and 

rejected that argument. E.g., CT Plan 

Order, 86 FR at 44,163–65. The 

‘‘proposed allocation of votes to NonSRO Voting Representatives will 

provide the Non-SRO Voting 

Representatives a meaningful presence 

and opportunity to vote on Operating 

Committee matters, while assuring that 

their voting power does not equal or 

exceed that of the SRO Voting 

Representatives.’’ Id. at 44,165. Under 

this structure, SROs will control twothirds of the votes on the new plan 

operating committee and can 

collectively govern the plan without a 

single vote from a voting member that 

is not a self-regulatory organization. 

The exchanges assert that it is 

improper to take into account corporate 

affiliations of the exchanges when 

deciding how votes should be allocated 

on the operating committee. Mot. 11. 

But as the Commission explained in the 

CT Plan Order, that argument fails for 

several reasons. ‘‘Sometimes, the 

Commission treats affiliated entities 

independently,’’ while ‘‘[o]ther times, 

the Commission takes into account 

corporate relationships when deciding 

how to regulate.’’ 86 FR at 44,164 (citing 

examples). Here, ‘‘[b]ecause of the 

concentrated power affiliated SROs 

exert in the governance structure of 

consolidated equity market data, as 

demonstrated by the indisputable fact 

that affiliated SROs vote as blocs, the 

Commission has determined that 

affiliated exchanges under common 

management and control should be 

treated as one SRO Group limited to one 

vote, or at most two votes, in the context 

of NMS plan governance.’’ Id. 

Third, the exchanges assert that the 

CT Plan Order ‘‘arbitrarily and 

capriciously requires that the 

administrator of the CT Plan be 

‘independent.’ ’’ Mot. 11. But the 

Commission acted reasonably in finding 

that the new plan’s administrator 

should not at the same time offer for 

sale its own proprietary data products 

because such an entity would have 

access to confidential information as 

administrator that would benefit its 

proprietary data business. The 

exchanges claim that the Commission 

did not adequately demonstrate that 

current administrators have ‘‘misused 

customer audit data or that the 

combination of existing safeguards and 

the new confidentiality measures 

imposed by the CT Plan Order will be 

insufficient to eliminate that purported 

risk.’’ Id. at 12. But the exchanges do not 

dispute the existence of this conflict of 

interest, or that such information is 

sensitive and commercially valuable. 

Further, as explained in the CT Plan 

Order, the Commission has ‘‘provided 

evidence of problems in the current 

Administrator framework for the 

existing Equity Data Plans.’’ CT Plan 

Order, 86 FR at 44,195. Moreover, ‘‘the 

conflicts of interest faced by a nonindependent Administrator are so great 

that these conflicts cannot be 

sufficiently mitigated by policies and 

procedures alone.’’ Id. And the 

exchanges’ concerns about costs were 

similarly addressed and rejected in the 

CT Plan Order. Id. at 44,196–97. 

3. The CT Plan Order serves a strong 

public interest. The governance model 

for the Equity Data Plans was 

established in 1970s. Since then, critical 

developments in the equities markets— 

including the heightening of an inherent 

conflict of interest between the for-profit 

and regulatory roles of the exchanges 

and the concentration of voting power 

in the Equity Data Plans among a few 

large exchange groups—have 

demonstrated the need for an updated 

governance model. See CT Plan Order, 

86 FR at 44,142. The public interest will 

be served by the enhanced 

decisionmaking and potential for 

innovation in the provision of equity 

market data that will result from the 

governance changes compelled by the 


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52936 Federal Register / Vol. 86, No. 182 / Thursday, September 23, 2021 / Notices 

CT Plan Order. And the governance of 

the consolidated data feeds can be 

improved by consolidating the three 

existing, separate Equity Data Plans into 

a single New Consolidated Data Plan 

that will reduce existing redundancies, 

inefficiencies, and inconsistencies 

between and among the Equity Data 

Plans. See id.; see also NMS Governance 

Order, 85 FR at 28,711. Moreover, 

‘‘[a]ddressing the issues with the current 

governance structure of the Equity Data 

Plans discussed in [the CT Plan Order] 

is a key step in responding to broader 

concerns about the consolidated data 

feeds.’’ 86 FR at 44,142. Any further 

delay in establishing a new governance 

structure will impede the achievement 

of these benefits, including the 

Commission’s efforts to mitigate the 

clear, inherent conflict between the 

exchanges’ commercial interests in 

selling proprietary data products and 

their regulatory obligations to produce 

and disseminate consolidated market 

data. Indeed, the exchanges nowhere 

contest that this intractable conflict 

exists. 

The exchanges state that ‘‘the CT Plan 

Order will not yield any immediate 

benefits for market participants’’ 

because the Commission set forth an 

implementation schedule. Mot. 15. That 

argument could be made every time any 

agency adopts any rule or order that 

does not take effect immediately, yet a 

stay in those circumstances remains an 

extraordinary remedy. The exchanges 

also claim that any benefit from the CT 

Plan is ‘‘purely speculative,’’ id. at 16, 

but the Commission determined that the 

exchanges’ inherent conflict affects their 

incentives to meaningfully enhance the 

provision of consolidated data and 

concluded that the current governance 

structure of the Equity Data Plans is 

inadequate to respond to these changes 

or to the evolving needs of investors and 

other market participants. 

The exchanges also claim that the 

operating committee of the CT Plan may 

set the fees for core data at the same 

level or a higher level than they are 

now. Mot. 16. That argument, however, 

is speculative and the exchanges offer 

no reason why that unsubstantiated 

concern warrants a stay. And that 

argument is particularly misplaced 

because the exchanges themselves will 

play a major role in setting those fees. 

In any event, the CT Plan Order is 

reasonably designed to improve the 

governance of the national market 

system by, among other things, 

addressing the conflict of interest 

between the exchanges’ for-profit and 

regulatory roles. 

The exchanges speculate that, if the 

D.C. Circuit vacates the CT Plan, there 

will be market uncertainty regarding the 

distribution of core data. Mot. 16–17. 

But that speculation is insufficient to 

justify the extraordinary remedy of a 

stay, particularly when weighed against 

the harms from the delay of efforts to 

mitigate the undisputed conflicts of 

interest faced by the exchanges through 

their for-profit and regulatory roles. The 

Court could act before the CT Plan 

becomes operative in August 2022 and, 

in doing so, confirm the validity of the 

plan. And even if the Court were to 

decide in favor of the exchanges, the 

decision may not affect the entirety of 

the CT Plan. Moreover, the three Equity 

Data Plans will not simply cease to exist 

in August 2022 or automatically lose 

their ability to fulfill their functions if 

the CT Plan Order were vacated. 

The exchanges’ contention that 

vacatur would complicate the 

implementation of the Market Data 

Infrastructure rule, see 86 FR 18,596 

(Apr. 9, 2021), is likewise off base. As 

the Commission has already made clear, 

its initiatives to improve the governance 

and infrastructure of the national market 

system are mutually reinforcing but 

‘‘[n]either initiative depends on the 

other initiative being implemented 

before it may take effect.’’ Order 

Denying Stay, Market Data 

Infrastructure Rule 5, Release No. 34– 

91397, (Mar. 24, 2021). Finally, the 

exchanges argue that ‘‘a decision 

invalidating the CT Plan Order would 

raise a host of legally complicated and 

practically fraught questions about the 

validity of actions already taken by the 

CT Plan and the prospective 

implications of those actions.’’ Mot. 17. 

That speculative concern is routinely 

present any time an agency rule or order 

is subject to legal challenge and in this 

case does not warrant a stay. 

4. The exchanges’ stay request also 

mischaracterizes the harm that will 

result from their compliance with the 

CT Plan Order. The exchanges assert 

that they will incur ‘‘out-of-pocket 

expenditures’’ and devote ‘‘substantial 

time and effort’’ as they work toward 

implementing the CT Plan. Mot. 14. But 

‘‘ordinary compliance costs are typically 

insufficient to constitute irreparable 

harm,’’ Freedom Holdings, Inc. v. 

Spitzer, 408 F.3d 112, 115 (2d Cir. 

2005), and ‘‘it proves too much to 

suggest that ‘irreparable’ injury exists, as 

a matter of course, whenever a regulated 

party seeks preliminarily to enjoin the 

implementation of a new regulatory 

burden,’’ California Ass’n of Private 

Postsecondary Sch. v. DeVos, 344 F. 

Supp. 3d 158, 170 (D.D.C. 2018). 

Otherwise, a regulated party would 

always suffer cognizable irreparable 

harm whenever it faces compliance 

costs from agency action while its legal 

challenge proceeds. The costs of 

complying with a new regulatory 

burden do not qualify as irreparable 

harm except in extraordinary 

circumstances. See Nat’l Lifeline Ass’n 

v. FCC, No. 18–1026, 2018 WL 4154794, 

at *1 (D.C. Cir. Aug. 10, 2018) (stay 

justified where implementation of order 

‘‘will result in substantial, 

unrecoverable losses . . . that may 

indeed threaten the future existence of 

[petitioners’] businesses’’ and ‘‘is likely 

to result in a major reduction, or 

outright elimination, of critical 

telecommunications services for many 

tribal residents, which are vital for dayto-day medical, educational, family 

care, and other functions’’). Here, the 

exchanges have made no attempt to 

offer even an estimate of their 

compliance costs or explain the extent 

to which those costs may affect their 

businesses. 

5. Finally, a stay is not warranted 

under the statutory provision granting 

the Commission authority to issue a stay 

where ‘‘justice so requires.’’ 15 U.S.C. 

78y(c)(2). As the Commission has 

explained, the traditional four-factor 

analysis provides ‘‘a useful framework 

to guide our consideration’’ under the 

justice-so-requires standard. In re Am. 

Petroleum Inst., 2012 WL 5462858, at *2 

n.1. As already discussed, the exchanges 

have failed to carry their burden to meet 

the traditional requirements for a stay. 

Although the exchanges cite two cases 

in which the Commission granted stays 

under this standard, Mot. 18–19, neither 

case involved the Commission’s 

determination that a stay was justified 

despite the petitioner’s failure to satisfy 

the traditional four-factor stay analysis. 

See In re Rule 610T of Regulation NMS, 

Release No. 85447, 2019 WL 1424351 

(Mar. 28, 2019); In re Motion of Business 

Roundtable and the Chamber of 

Commerce of the United States of 

America for Stay of Effect of 

Commission’s Facilitating Shareholder 

Director Nominations Rules, Release No. 

9149, 2010 WL 3862548 (Oct. 4, 2010). 

And in this matter, the exchanges 

cannot meet any of the factors. The 

exchanges have not demonstrated that 

the Commission should grant a stay 

even though they cannot meet their 

burden to show a strong likelihood of 

success on the merits, they have not 

shown that the issuance of a stay would 

serve the public interest, and they offer 

no evidence of legally cognizable 

irreparable harm. 

Accordingly, it is ordered, pursuant to 

Exchange Act Section 25(c)(2) and 

Section 705 of the Administrative 

Procedure Act that the motion for a stay 

be denied. 


lotter on DSK11XQN23PROD with NOTICES1
Federal Register / Vol. 86, No. 182 / Thursday, September 23, 2021 / Notices 52937 

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

2 17 CFR 240.19b–4. 

3 15 U.S.C. 78s(b)(3)(A)(ii). 

4 17 CFR 240.19b–4(f)(2). 

5The term ‘‘Participant’’ or ‘‘Options Participant’’ 

means a firm, or organization that is registered with 

the Exchange pursuant to the Rule 2000 Series for 

purposes of participating in trading on a facility of 

the Exchange. See BOX Rule 100(a)(41). 

6Exchange Participants must record the 

appropriate account origin code on all orders at the 

time of entry in order. The Exchange represents that 

it has surveillances in place to verify that 

Participants mark orders with the correct account 

origin code. 

7 ‘‘CMTA’’ or Clearing Member Trade Assignment 

is a form of ‘‘give-up’’ whereby the position will be 

assigned to a specific clearing firm at OCC. 

By the Commission. 

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2021–20554 Filed 9–22–21; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–93045; File No. SR–BOX– 

2021–22] 

Self-Regulatory Organizations; BOX 

Exchange LLC; Notice of Filing and 

Immediate Effectiveness of a Proposed 

Rule Change To Amend the Fee 

Schedule on the BOX Options Market 

LLC Facility To Reduce the Amount of 

the Options Regulatory Fee (‘‘ORF’’) 

September 17, 2021. 

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

Securities Exchange Act of 1934 

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

notice is hereby given that on 

September 14, 2021, BOX Exchange LLC 

(‘‘Exchange’’) filed with the Securities 

and Exchange Commission 

(‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III below, which Items have been 

prepared by the Exchange. The 

Exchange filed the proposed rule change 

pursuant to Section 19(b)(3)(A)(ii) of the 

Act,3 and Rule 19b–4(f)(2) thereunder,4

which renders the proposal effective 

upon filing with the Commission. 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 the Substance 

of the Proposed Rule Change 

The Exchange is filing with the 

Securities and Exchange Commission 

(‘‘Commission’’) a proposed rule change 

to amend the Fee Schedule on the BOX 

Options Market LLC (‘‘BOX’’) options 

facility. The text of the proposed rule 

change is available from the principal 

office of the Exchange, at the 

Commission’s Public Reference Room 

and also on the Exchange’s internet 

website at http://boxexchange.com. 

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 

Currently, the Exchange assesses ORF 

in the amount of $0.0038 per contract 

side. The Exchange proposes to reduce 

the amount of ORF from $0.0038 per 

contract side to $0.00295 per contract 

side in order to help ensure that revenue 

collected from the ORF, in combination 

with other regulatory fees and fines, 

does not exceed the Exchange’s total 

regulatory costs. The Exchange’s 

proposed change to the ORF should 

balance the Exchange’s regulatory 

revenue against the anticipated 

regulatory costs. 

Collection of ORF 

Currently, the Exchange assesses the 

per-contract ORF to each Participant 5

for all options transactions, including 

Mini Options, cleared or ultimately 

cleared by the Participant, which are 

cleared by the Options Clearing 

Corporation (‘‘OCC’’) in the ‘‘customer’’ 

range,6 regardless of the exchange on 

which the transaction occurs. The ORF 

is collected by OCC on behalf of the 

Exchange from either: (1) A Participant 

that was the ultimate clearing firm for 

the transaction; or (2) a non-Participant 

that was the ultimate clearing firm 

where a Participant was the executing 

clearing firm for the transaction. The 

Exchange uses reports from OCC to 

determine the identity of the executing 

clearing firm and ultimate clearing firm. 

To illustrate how the Exchange 

assesses and collects ORF, the Exchange 

provides the following set of examples. 

For a transaction that is executed on the 

Exchange and the ORF is assessed, if 

there is no change to the clearing 

account of the original transaction, then 

the ORF is collected from the 

Participant that is the executing clearing 

firm for the transaction (the Exchange 

notes that, for purposes of the Fee 

Schedule, when there is no change to 

the clearing account of the original 

transaction, the executing clearing firm 

is deemed to be the ultimate clearing 

firm). If there is a change to the clearing 

account of the original transaction (i.e., 

the executing clearing firm ‘‘gives-up’’ 

or ‘‘CMTAs’’ 7 the transaction to another 

clearing firm), then the ORF is collected 

from the clearing firm that ultimately 

clears the transaction—the ‘‘ultimate 

clearing firm.’’ The ultimate clearing 

firm may be either a Participant or nonParticipant of the Exchange. If the 

transaction is executed on an away 

exchange and the ORF is assessed, then 

the ORF is collected from the ultimate 

clearing firm for the transaction. Again, 

the ultimate clearing firm may be either 

a Participant or non-Participant of the 

Exchange. The Exchange notes, 

however, that when the transaction is 

executed on an away exchange, the 

Exchange does not assess the ORF when 

neither the executing clearing firm nor 

the ultimate clearing firm is a 

Participant (even if a Participant is 

‘‘given-up’’ or ‘‘CMTAed’’ and then 

such Participant subsequently ‘‘givesup’’ or ‘‘CMTAs’’ the transaction to 

another non-Participant via a CMTA 

reversal). Finally, the Exchange does not 

assess the ORF on outbound linkage 

trades, whether executed at the 

Exchange or an away exchange. 

‘‘Linkage trades’’ are tagged in the 

Exchange’s system, so the Exchange can 

readily tell them apart from other trades. 

A customer order routed to another 

exchange results in two customer trades, 

one from the originating exchange and 

one from the recipient exchange. 

Charging ORF on both trades could 

result in double-billing of ORF for a 

single customer order; thus, the 

Exchange does not assess ORF on 

outbound linkage trades in a linkage 

scenario. 

As a practical matter, when a 

transaction that is subject to the ORF is 

not executed on the Exchange, the 

Exchange lacks the information 

necessary to identify the order-entering 

market participant for that transaction. 

There are a multitude of order-entering 

market participants throughout the 

industry, and such participants can 

make changes to the market centers to 

which they connect, including dropping 

their connection to one market center 

and establishing themselves as 

participants on another. For these 

reasons, it is not possible for the 


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