Federal Register / Vol. 82, No. 182 / Thursday, September 21, 2017 / Notices 44239 

10Bernerd E. Young, Exchange Act Release No. 

78440, 2016 WL 4060106, at *1 (July 29, 2016); see 

also Order Preliminarily Considering Whether to 

Issue Stay Sua Sponte and Establishing Guidelines 

for Seeking Stay Applications, Exchange Act 

Release No. 33870, 1994 WL 17920, at *1 (Apr. 7, 

1994). 

11 Young, Exchange Act Release No. 78440, 2016 

WL 4060106, at *1. 

12 866 F.3d at 451. 

13Kenny A. Akindemowo, Exchange Act Release 

No. 78352, 2016 WL 3877888, at *2 (July 18, 2016) 

(quoting Donald L. Koch, Exchange Act Release No. 

72443, 2014 WL 2800778, at *2 (June 20, 2014)); 

accord Wis. Gas Co. v. FERC, 758 F.2d 669, 674 

(D.C. Cir. 1985). 

14Akindemowo, 2016 WL 3877888, at *2 (quoting 

Koch, 2014 WL 2800778, at *2); accord Wis. Gas 

Co., 758 F.2d at 674. 

15Robert J. Prager, Exchange Act Release No. 

50634, 2004 WL 2480717, at *1 (Nov. 4, 2004); see 

also William Timpinaro, Exchange Act Release No. 

29927, 1991 WL 288326, at *3 (Nov. 12, 1991) 

(recognizing that ‘‘[m]ere injuries, however 

substantial, in terms of money, time, and energy 

necessarily expended in the absence of a stay, are 

not enough’’ to constitute irreparable harm) 

(quoting Va. Petroleum Jobbers Ass’n v. FPC, 259 

F.2d 921, 925 (D.C. Cir. 1958)). 

16Mot. at 1. 

17Mot. at 16. 

18 Id. 

19 Id. Petitioners cite the acquisition of BATS by 

CBOE Holdings, Inc.—which, we note, closed on 

February 28, 2017—in support of their argument, 

stating that there has been consolidation in the 

exchange marketplace while the Capital Plan has 

been in effect. But they supply no evidence of a 

causal relationship between that acquisition and the 

Capital Plan or the dividends at issue. 

20Mot. at 16. 

21Exchange Act Release No. 74136 (Notice of 

Proposed Rule Change) at 15, File No. SR–OCC– 

2015–02. 

22See Fed. R. App. P. 28(j) letter from petitioners, 

dated April 17, 2017 (asking the court ‘‘at a 

minimum, to stay operation of the dividend 

component of the Plan during a remand’’). 

1Exchange Act Release No. 77112, File No. SR– 

OCC–2015–02. 

2BATS Global Markets, Inc., was initially a 

petitioner, but later withdrew. 

the public interest.10 The party seeking 

a stay has the burden of establishing 

that relief is warranted.11 These factors 

weigh against granting petitioners’ stay 

request. 

First, with respect to likelihood of 

success on the merits, we note that the 

court did not address petitioners’ 

arguments that the Plan was 

inconsistent with the Exchange Act. 

Rather, it remanded for the Commission 

to ‘‘properly evaluate the Plan.’’ 12 By 

repeating their same arguments 

regarding consistency with the Act in 

support of a stay, petitioners are asking 

the Commission to opine on their 

likelihood of success before engaging in 

the further analysis directed by the 

court. We are not yet in a position to do 

so. Unlike the more typical situation in 

which the Commission addresses stay 

motions, here there is neither a full 

record nor a final decision on which to 

base such an analysis. Thus, we do not 

view this factor as weighing in favor of 

the partial stay request. 

Second, petitioners fail to establish 

that they will be irreparably harmed in 

the absence of a stay. To demonstrate 

irreparable harm, petitioners ‘‘must 

show an injury that is ‘both certain and 

great’ and ‘actual and not 

theoretical.’ ’’ 13 ‘‘A stay ‘will not be 

granted [based on] something merely 

feared as liable to occur at some 

indefinite time.’ ’’ 14 That ‘‘an applicant 

may suffer financial detriment does not 

rise to the level of irreparable injury 

warranting issuance of a stay.’’ 15

Petitioners acknowledge that the 

monetary aspects of the Plan ‘‘are 

readily reversible’’ 16 and that the court 

concluded that ‘‘the task of unwinding 

the Plan would be no more difficult if 

done after remand rather than 

immediately.’’ 17 They nonetheless 

argue that ‘‘[a] stay of the dividend is 

needed to prevent distortion of the 

competitive landscape from continuing 

to harm competition.’’ 18 But petitioners 

provide no evidence that competitors 

will be ‘‘driven from the marketplace’’ 

or that investors have ‘‘lost liquidity,’’ 

as petitioners claim.19 Thus, petitioners’ 

argument—which presumes they are 

correct on the merits regarding the 

Plan’s effect on competition—is too 

speculative at this stage to be the basis 

for relief. We also note that petitioners 

made these same arguments regarding 

competitive harm before the D.C. 

Circuit, yet the court did not stay or 

vacate the Plan. 

Finally, petitioners have not 

demonstrated that the balance of harm 

to others in the absence of a stay and the 

public interest favors a stay. Petitioners 

argue that ‘‘a stay would injur[e] 

nobody,’’ 20 because they are asking 

only to stay the dividend component of 

the Plan. But even setting aside the 

impact on shareholder exchanges that 

are due the dividends under the Plan, 

petitioners’ claim that the dividend 

component of the plan can be isolated 

is overly simplistic. Under the Plan, 

‘‘OCC would not be able to pay a refund 

on a particular date unless dividends 

were paid on the same date.’’ 21 A stay 

of the dividends to the shareholders 

would thus have the effect of also 

staying the payment of refunds to OCC’s 

members. 

Moreover, as discussed above, the 

court squarely considered whether to 

vacate the Plan or leave it in effect 

during the Commission’s 

reconsideration, and decided to leave 

the Plan, including the provisions with 

respect to dividends, in place. 

Petitioners’ request to stay that part of 

the Plan therefore, in fact, seeks a 

change in the status quo that we believe 

is unsupported at this time. Granting 

petitioners’ request would require 

piecemeal suspension of portions of the 

Plan, while leaving others in place, 

despite at least the possibility of having 

to reinstitute those provisions at a later 

date if the Commission, after conducting 

the required analysis on remand, should 

determine to approve the Plan. Indeed, 

the court implicitly rejected this type of 

partial stay when petitioners proposed it 

in a pre-decision letter to the court 22

and the court remanded without 

entering such a stay. We believe, as the 

court did, that the better course is to 

leave the status quo in place while we 

conduct a further review of the entirety 

of the Plan. 

Accordingly, we decline to impose 

the partial stay requested. 

For the reasons stated above, it is 

hereby: 

Ordered that movants’ request for a 

partial stay of the Capital Plan while the 

Commission considers the Plan 

pursuant to the direction of the D.C. 

Circuit is Denied. 

By the Commission. 

Brent J. Fields, 

Secretary. 

[FR Doc. 2017–20080 Filed 9–20–17; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[File No. SR–OCC–2015–02; Release No. 

81629] 

Before the Securities and Exchange 

Commission; Securities Exchange Act 

of 1934; In the Matter of the The 

Options Clearing Corporation For an 

Order Granting the Approval of 

Proposed Rule Change Concerning a 

Proposed Capital Plan for Raising 

Additional Capital That Would Support 

the Options Clearing Corporation’s 

Function as a Systemically Important 

Financial Market Utility; Corrected 

Order Scheduling Filing of Statements 

on Review 

September 14, 2017. 

On February 11, 2016, the 

Commission issued an order (‘‘Approval 

Order’’) approving the plan of the 

Options Clearing Corporation’s (‘‘OCC’’) 

for raising additional capital (the 

‘‘Plan’’) to support its function as a 

systemically important financial market 

utility.1 BOX Options Exchange LLC, 

KCG Holdings, Inc., Miami International 

Securities Exchange, LLC, and 

Susquehanna International Group, LLP 

(collectively ‘‘petitioners’’) 2 filed a 


asabaliauskas on DSKBBXCHB2PROD with NOTICES
44240 Federal Register / Vol. 82, No. 182 / Thursday, September 21, 2017 / Notices 

3Susquehanna Int’l Grp., LLP v. SEC, 866 F.3d 

442, 443 (D.C. Cir. 2017). 

4 Id. at 446. 

5 Id. 6 17 CFR 200.83. 

petition for review of the Approval 

Order in the U.S. Court of Appeals for 

the District of Columbia Circuit (‘‘D.C. 

Circuit’’), challenging the Commission’s 

Approval Order as inconsistent with the 

Exchange Act and lacking in the 

reasoned decisionmaking required by 

the Administrative Procedure Act. 

The D.C. Circuit concluded that the 

Approval Order did not ‘‘represent the 

kind of reasoned decisionmaking 

required by either the Exchange Act or 

the Administrative Procedure Act,’’ and 

therefore remanded the case to the 

Commission for further proceedings.3 In 

so ruling, the court did not reach the 

merits of any of petitioners’ arguments 

that the Plan was inconsistent with the 

substantive requirements of the 

Exchange Act.4

The court specifically decided not to 

vacate the Approval Order prior to 

remand, instead leaving the Plan in 

place and remanding ‘‘to give the SEC 

an opportunity to properly evaluate the 

Plan.’’ 5 The D.C. Circuit’s mandate, 

which issued on August 18, 2017, 

returned the matter to the Commission 

for further proceedings. 

Accordingly, to facilitate the 

Commission’s further review of the 

Plan, It is Ordered, that by October 14, 

2017, OCC may file any additional 

statements or information that it 

considers relevant to the Commission’s 

reconsideration, including but not 

limited to information OCC’s board of 

directors considered in approving the 

Plan. 

Furthermore, the Commission is 

providing other parties and persons 

thirty days to respond to any additional 

statements OCC may submit. 

Accordingly, It is Ordered, that by 

November 13, 2017, any party or other 

person may file any additional 

statement, which may include 

statements previously submitted or 

otherwise available, or any new 

information such party or other person 

considers relevant. 

All submissions should refer to File 

Number SR–OCC–2015–02. The 

Commission will post submissions on 

the Commission’s Internet Web site as 

they are received. Submissions received 

will be posted without change; the 

Commission does not edit personal 

identifying information from 

submissions. If a party or person wishes 

to submit information for the 

Commission to consider that is 

confidential, Rule 83 of the Commission 

Rules of Practice provides a procedure 

by which persons submitting 

information may request that it be 

withheld when requested under the 

Freedom of Information Act.6 Any party 

or person seeking to submit information 

in this matter should make sure that 

their request complies with procedures 

specified by Rule 83. An explanation of 

the rule is available on the 

Commission’s Web site at: https://

www.sec.gov/foia/conftreat.htm. 

By the Commission. 

Brent J. Fields, 

Secretary. 

[FR Doc. 2017–20081 Filed 9–20–17; 8:45 am] 

BILLING CODE 8011–01–P 

SURFACE TRANSPORTATION BOARD 

[Docket No. EP 290 (Sub-No. 5) (2017–4)] 

Quarterly Rail Cost Adjustment Factor 

AGENCY: Surface Transportation Board. 

ACTION: Approval of rail cost adjustment 

factor. 

SUMMARY: The Board approves the 

fourth quarter 2017 Rail Cost 

Adjustment Factor (RCAF) and cost 

index filed by the Association of 

American Railroads. The fourth quarter 

2017 RCAF (Unadjusted) is 0.889. The 

fourth quarter 2017 RCAF (Adjusted) is 

0.367. The fourth quarter 2017 RCAF–5 

is 0.350. 

DATES: Applicability Date: October 1, 

2017. 

FOR FURTHER INFORMATION CONTACT: 

Pedro Ramirez, (202) 245–0333. Federal 

Information Relay Service (FIRS) for the 

hearing impaired: (800) 877–8339. 

SUPPLEMENTARY INFORMATION: 

Additional information is contained in 

the Board’s decision, which is available 

on our Web site, http://www.stb.gov. 

Copies of the decision may be 

purchased by contacting the Office of 

Public Assistance, Governmental 

Affairs, and Compliance at (202) 245– 

0238. Assistance for the hearing 

impaired is available through FIRS at 

(800) 877–8339. 

This action will not significantly 

affect either the quality of the human 

environment or energy conservation. 

By the Board, Board Members Begeman, 

Elliott, and Miller. 

Decided: September 18, 2017. 

Marline Simeon, 

Clearance Clerk. 

[FR Doc. 2017–20136 Filed 9–20–17; 8:45 am] 

BILLING CODE 4915–01–P 

OFFICE OF THE UNITED STATES 

TRADE REPRESENTATIVE 

[Docket No. USTR–2017–0017] 

2017 Special 301 Out-of-Cycle Review 

of Thailand: Request for Comments 

AGENCY: Office of the United States 

Trade Representative. 

ACTION: Request for comments. 

SUMMARY: The Office of the United 

States Trade Representative (USTR) is 

conducting a Special 301 Out-of-Cycle 

Review of Thailand. USTR requests 

written comments concerning any act, 

policy, or practice that is relevant to the 

decision regarding whether and how 

USTR should identify Thailand based 

on Thailand’s protection for intellectual 

property rights or market access 

Thailand provides to U.S. persons who 

rely on intellectual property protection. 

DATES:

October 20, 2017, at 11:59 p.m. 

Eastern Time: Deadline for submission 

of written comments. 

October 27, 2017, at 11:59 p.m. 

Eastern Time: Deadline for submission 

of written comments from foreign 

governments. 

ADDRESSES: You should submit written 

comments through the Federal 

eRulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments in 

section III below. For alternatives to online submissions, please contact USTR 

at Special301@ustr.eop.gov before 

transmitting a comment and in advance 

of the relevant deadline. 

FOR FURTHER INFORMATION CONTACT: 

Daniel Lee, Deputy Assistant U.S. Trade 

Representative for Innovation and 

Intellectual Property, at Special301@

ustr.eop.gov or (202) 395–4510. You can 

find information about the Special 301 

Review at www.ustr.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Pursuant to Section 182 of the Trade 

Act of 1974 (19 U.S.C. 2242), USTR 

must identify countries that deny 

adequate and effective protection for 

intellectual property rights (IPR) or deny 

fair and equitable market access to U.S. 

persons who rely on intellectual 

property protection. USTR will identify 

the countries that have the most onerous 

or egregious acts, policies, or practices 

and whose acts, policies, or practices 

have the greatest adverse impact (actual 

or potential) on relevant U.S. products 

as Priority Foreign Countries. Acts, 

policies, or practices that are the basis 

of a country’s designation as a Priority 

Foreign Country normally are the 


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