[Federal Register Volume 88, Number 172 (Thursday, September 7, 2023)]
[Notices]
[Pages 61630-61641]
[FR Doc No: 2023-19311]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98271; File No. 4-757]

Amended Order Directing the Exchanges and the Financial Industry
Regulatory Authority, Inc., To File a National Market System Plan
Regarding Consolidated Equity Market Data

September 1, 2023.
    Notice is hereby given that, pursuant to section 11A(a)(3)(B) of
the Securities Exchange Act of 1934 (``Act''),\1\ the Securities and
Exchange Commission (``Commission'') orders the Cboe BYX Exchange, Inc.
(``Cboe BYX''); Cboe BZX Exchange, Inc. (``Cboe BZX''); Cboe EDGA
Exchange, Inc. (``Cboe EDGA''); Cboe EDGX Exchange, Inc. (``Cboe
EDGX''); Cboe Exchange, Inc. (``Cboe''); Investors Exchange LLC; Long
Term Stock Exchange, Inc.; MEMX LLC; MIAX PEARL, LLC; Nasdaq BX, Inc.
(``Nasdaq BX''); Nasdaq ISE, LLC (``Nasdaq ISE''); Nasdaq PHLX LLC
(``Nasdaq PHLX''); Nasdaq Stock Market LLC (``Nasdaq''); New York Stock
Exchange LLC (``NYSE''); NYSE American LLC (``NYSE American''); NYSE
Arca, Inc. (``NYSE Arca''); NYSE Chicago, Inc. (``NYSE Chicago''); NYSE
National, Inc. (``NYSE National''); and Financial Industry Regulatory
Authority, Inc. (each a ``Participant'' or a ``Self-Regulatory
Organization'' (``SRO'') and, collectively, the ``Participants'' or the
``SROs'') to act jointly in developing and filing with the Commission a
proposed new single national market system plan (``Revised New
Consolidated Data Plan'') regarding consolidated equity market data.
The Revised New Consolidated Data Plan shall be filed with the
Commission pursuant to Rule 608 of Regulation NMS \2\ no later than
October 23, 2023.
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    \1\ 15 U.S.C. 78k-1(a)(3)(B).
    \2\ 17 CFR 242.608.

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I. Background

    On May 6, 2020, the Commission issued an order (``Governance
Order'') directing the SROs to submit a new national market system plan
(``NMS plan'') regarding consolidated equity market data to replace the
three NMS plans (``Equity Data Plans'') \3\ that govern the public
dissemination of real-time consolidated market data for national market
system stocks (``NMS stocks'').\4\ The Governance Order, which
explained the Commission's justification for action, directed that the
new NMS plan include specified provisions designed to, among other
things, address concerns identified by the Commission and the public
with respect to the governance of the Equity Data Plans.\5\
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    \3\ The three Equity Data Plans that currently govern the
collection, consolidation, processing, and dissemination of
consolidated equity market data via the exclusive securities
information processors (``SIPs'') are: (1) the Consolidated Tape
Association Plan; (2) the Consolidated Quotation Plan; and (3) the
Joint Self-Regulatory Organization Plan Governing the Collection,
Consolidation, and Dissemination of Quotation and Transaction
Information for Nasdaq-Listed Securities Traded on Exchanges on an
Unlisted Trading Privileges Basis.
    \4\ See Order Directing the Exchanges and the Financial Industry
Regulatory Authority to Submit a New National Market System Plan
Regarding Consolidated Equity Market Data, Securities Exchange Act
Release No. 88827 (May 6, 2020), 85 FR 28702 (May 13, 2020) (File
No. 4-757).
    \5\ See Governance Order, supra note 4, 85 FR at 28729-31.
Nasdaq, Nasdaq BX, Nasdaq PHLX, NYSE, NYSE American, NYSE Arca, NYSE
Chicago, NYSE National, Cboe BYX, Cboe BZX, Cboe EDGA, Cboe EDGX,
and Cboe filed petitions with the U.S. Court of Appeals for the
District of Columbia Circuit (``D.C. Circuit'') for review of the
Governance Order. These petitions were dismissed. See The Nasdaq
Stock Market, et al. vs. SEC, 1 F.4th 34 (D.C. Cir. 2021). Nasdaq,
Nasdaq BX, and Nasdaq PHLX also filed a motion with the Commission
to stay the effect of the Governance Order while their petition was
pending before the D.C. Circuit, and the Commission denied this
motion. See Order Denying Stay, Securities Exchange Act Release No.
89066 (June 12, 2020), 85 FR 36921 (June 18, 2020) (File No. 4-757).
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    On August 11, 2020, the SROs filed a proposed NMS plan pursuant to
the Governance Order, and the Commission published notice of the
proposed plan (``CT Plan'') for comment in the Federal Register on
October 13, 2020.\6\ After instituting proceedings with respect to the
proposed CT Plan,\7\ the Commission ultimately approved, as modified,
the CT Plan on August 6, 2021.\8\
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    \6\ See Joint Industry Plan; Notice of Filing of a National
Market System Plan Regarding Consolidated Equity Market Data,
Securities Exchange Act Release No. 90096 (Oct. 6, 2020), 85 FR
64565 (Oct. 13, 2020) (File No. 4-757) (``CT Plan Notice'').
    \7\ See Order Instituting Proceedings to Determine Whether to
Approve or Disapprove a National Market System Plan Regarding
Consolidated Equity Market Data, Securities Exchange Act Release No.
90885 (Jan. 11, 2021), 86 FR 4142 (Jan. 15, 2021) (File No. 4-757).
    \8\ See Joint Industry Plan; Order Approving, as Modified, a
National Market System Plan Regarding Consolidated Equity Market
Data, Securities Exchange Act Release No. 92586 (Aug. 6, 2021), 86
FR 44142 (Aug. 11, 2021) (File No. 4-757) (``CT Plan Approval
Order'').
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    A group of SROs associated with Nasdaq, the NYSE, and Cboe
petitioned the D.C. Circuit for review of the Commission's action,
challenging three aspects of the Governance Order and the CT Plan
Approval Order: (1) the inclusion of non-SRO representatives as voting
members of the CT Plan's operating committee; (2) the grouping of SROs
by corporate affiliation for voting; and (3) the requirement that the
CT Plan's administrator be independent of any SRO that sells its own
proprietary equity market data.\9\
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    \9\ See The Nasdaq Stock Market LLC, et al. v. Securities and
Exchange Commission, 38 F.4th 1126, 1131 (D.C. Cir. 2022) (``Nasdaq
v. SEC''). The petitioning exchanges were Nasdaq, Nasdaq BX, Nasdaq
PHLX, NYSE, NYSE American, NYSE Arca, NYSE Chicago, NYSE National,
Cboe BYX, Cboe BZX, Cboe EDGA, Cboe EDGX, and Cboe. The petitioning
exchanges also filed a motion with the Commission seeking a stay of
the effect of CT Plan Approval Order pending final resolution of
their petitions before the D.C. Circuit, which the Commission
denied. See Order Denying Stay, Securities Exchange Release No.
93051 (Sept. 17, 2021), 86 FR 52933 (Sept. 23, 2021) (File No. 4-
757). The petitioning exchanges also filed for and, on Oct. 13,
2021, received a stay of the CT Plan Approval Order from the D.C.
Circuit. See Nasdaq v. SEC, 38 F.4th at 1135.
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    On July 5, 2022, the D.C. Circuit granted the exchanges' petition
with respect to the inclusion of non-SRO voting members on the CT Plan
operating committee, but denied the petition with respect to the other
challenged aspects of the Governance Order and the CT Plan Approval
Order, upholding the Commission's actions with respect to requiring
voting by SRO group and requiring an independent administrator.\10\ The
court vacated the CT Plan Approval Order in full, but ``sever[ed] only
those parts of the Governance Order directing [the SROs] to include
non-SRO representation in its proposed plan, leaving the remainder in
place.'' \11\
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    \10\ See Nasdaq v. SEC, 38 F.4th at 1131.
    \11\ Id. at 1145.
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    In light of the court's decision, the Commission now directs the
SROs to file a Revised New Consolidated Data Plan, consistent with the
provisions described below in this Amended Order. With the exception of
the topics addressed in this Amended Order, the Commission finds that
those provisions of the CT Plan approved in 2021 that were not
challenged, as well as those that were challenged but found by the
court to be permissible, continue to be appropriate. And, given the
limited topics addressed by this Amended Order, the Commission believes
that the SROs should be able to rely on a substantial portion of the
proposed CT Plan previously filed pursuant to the Governance Order. As
a result, the Commission believes that the SROs should be able to file
a proposed Revised New Consolidated Data Plan within 45 days after
publication of this Amended Order in the Federal Register.

II. Discussion

    In accordance with the D.C. Circuit's ruling, the Commission is
modifying the Governance Order to remove the provisions regarding the
participation of non-SRO representatives as members of the operating
committee of the Revised New Consolidated Data Plan and to make
conforming changes. Additionally, the Commission is including further
requirements that are appropriate to ensure that the Amended Order is
consistent with the court's ruling.\12\ Finally, based on its
reconsideration of the public comments received regarding the CT
Plan,\13\ the Commission is requiring the SROs to include certain
additional requirements for the Revised New Consolidated Data Plan.
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    \12\ The Commission has also added MIAX PEARL, LLC to the list
of the SROs to which this Amended Order is addressed. Since the
Governance Order was issued in May 2020, see Governance Order, supra
note 4, MIAX PEARL, LLC became a national securities exchange that
trades equity securities. See Order Approving a Proposed Rule
Change, as Modified by Amendment No. 1, to Establish Rules Governing
the Trading of Equity Securities, Securities Exchange Act Release
No. 89563 (Aug. 14, 2020), 85 FR 51510 (Aug. 20, 2020) (File No. SR-
PEARL-2020-03).
    \13\ The comment letters submitted in response to the NMS plan
previously proposed by the SROs are available at: https://www.sec.gov/comments/4-757/4-757.htm.
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A. Modifications in Response to the D.C. Circuit's Ruling

    First, the Commission is modifying the voting provision of the
Governance Order.\14\ The Governance Order provided that action by the
operating committee of the new NMS plan would require an ``augmented
majority vote'' that reflected the inclusion of non-SRO voting
representatives on the operating committee of the new NMS plan.\15\ The
``augmented majority vote'' would have required that all actions under
the terms of the new NMS plan, except the

selection of Non-SRO Members and decisions to enter into an SRO-only
executive session, would be required to be authorized by a two-thirds
vote of the new NMS plan's operating committee, provided that this
included a majority vote of the SRO members of the operating
committee.\16\ In light of the D.C. Circuit's ruling, there will no
longer be non-SRO members on the operating committee and the Commission
is modifying the voting provisions of the Governance Order to require
that action by the operating committee would require a two-thirds
majority of the votes allocated to the SROs. For the same reasons as
stated in the Governance Order,\17\ the Commission believes that the
requirement for a two-thirds majority strikes an appropriate balance
between ensuring that plan action has broad support among members of
the operating committee while also preventing a single SRO group or
unaffiliated SRO from vetoing plan action. Moreover, requiring a two-
thirds, rather than a simple, majority of SRO votes, in conjunction
with allocating votes by exchange group,\18\ prevents a small number of
SRO groups from dictating plan action without further support from
other SRO members. It is therefore consistent with the Commission's
rationale that the exchange-group voting provisions would address the
``disproportionate influence that the exchange groups have on the
governance of the Equity Data Plans.'' \19\
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    \14\ As stated by the D.C. Circuit, the ``augmented majority
vote'' provision of the Governance Order, absent revision, would
require, in light of the court's ruling regarding non-SRO
participants on the operating committee, ``both a two-thirds
majority and a simple majority vote of approval by the SROs alone.''
Nasdaq v. SEC, 38 F.4th at 1144 (emphasis in original).
    \15\ See Governance Order, supra note 4, 85 FR at 28720-22,
28730.
    \16\ See id.
    \17\ See id. at 28722.
    \18\ The Governance Order provided that each exchange group and
unaffiliated SRO shall have only one vote on the operating committee
of the new NMS plan, with a second vote allocated to an exchange
group or unaffiliated SRO whose market center(s) have consolidated
equity market share of more than 15 percent during four of the six
calendar months preceding a vote of the operating committee. See id.
at 28714, 27829-30; see also Nasdaq v. SEC, 38 F.4th at 1139-42,
1145 (upholding provisions of the Governance Order that require the
new NMS Plan to allocate votes by exchange group).
    \19\ See Governance Order, supra note 4, 85 FR at 28714.
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    Second, because non-SRO representatives will no longer be required
to be included as voting members of the operating committee of the
Revised New Consolidated Data Plan, the Commission is modifying the
Governance Order's requirements to provide that the Revised New
Consolidated Data Plan must provide for participation by non-SROs in
the operation of the plan as members of an advisory committee. This is
consistent with the current practice of the existing Equity Data Plans
under Regulation NMS.\20\ And the Commission finds that this
modification is appropriate for the reasons discussed in the Regulation
NMS Adopting Release regarding non-SRO advisory committees.\21\ The
Commission believes that the Revised New Consolidated Data Plan should
provide for at least the same non-SRO involvement as the existing
Equity Data Plans. But, for the same reasons stated in the Governance
Order,\22\ the composition of the advisory committee of the Revised New
Consolidated Data Plan should reflect the same categories of market
participants that, under the Governance Order, would have been the non-
SRO voting representatives on the Operating Committee,\23\ rather than
the current composition of the non-SRO advisory committees of the
Equity Data Plans.\24\ The Commission continues to believe, as
explained in the Governance Order,\25\ that an operating committee that
is exposed to views from this selection of non-SRO market participants
``will reflect a more diverse set of perspectives from a range of
market participants, including significant subscribers of SIP core data
products.'' \26\
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    \20\ See, e.g., Regulation NMS, Securities Exchange Act Release
No. 51808 (June 9, 2005), 70 FR 37495, 37610 (June 29, 2005) (File
No. S7-10-04) (``Regulation NMS Adopting Release'').
    \21\ See id. at 37561.
    \22\ See Governance Order, supra note 4, 85 FR at 28717-18.
    \23\ See id. at 28717-18, 28730.
    \24\ The Commission has stated that creation of the advisory
committees for the Equity Data Plans was ``a useful first step
toward improving the responsiveness of Plan participants and the
efficiency of Plan operations and that it would ``continue to
monitor and evaluate Plan developments to determine whether any
further action is warranted.'' Id. at 28722 (citing Regulation NMS
Adopting Release, supra note 20, 70 FR at 37561). In the Governance
Order, after considering recent developments in the equity markets,
the Commission determined to, among other things, provide for
representation of a different set of non-SRO representatives in the
operation of the Equity Data Plans. See id. at 28717-18.
    \25\ See id. at 28717-18 (discussing the categories of non-SRO
representatives).
    \26\ Id. at 28715.
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    And third, because non-SRO members will no longer be required to be
included as voting members of the operating committee of the Revised
New Consolidated Data Plan, the Commission is modifying the provision
of the Governance Order regarding the use of executive session to refer
to the exclusion of members of the advisory committee rather than of
Non-SRO Voting Representatives, and to delete an example of an
appropriate topic for executive session that anticipated that Non-SRO
Voting Representatives would be members of the operating committee.\27\
Additionally, because it will be important for non-SRO advisory
committee members to have transparency into operating committee
discussions as intended under the NMS plans, the Commission is
requiring that the Revised New Consolidated Data Plan limit the use of
executive sessions to identified circumstances in which it is
appropriate to exclude members of the advisory committee. Finally, the
SRO participants in the plan are obligated to comply with the terms of
the Revised New Consolidated Data Plan.\28\ Separately, we note that
Commission staff would be able to attend executive sessions of the
operating committee and thereby would have an opportunity to observe
the use of executive session.
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    \27\ The Governance Order stated that executive session would be
permitted for ``discussions regarding matters that exclusively
affect the SROs with respect to the Commission's oversight of the
New Consolidated Data Plan (including attorney-client communications
relating to such matters).'' Id. at 28726-27, 28730 (emphasis
added).
    \28\ See Rule 608(c) of Regulation NMS, 17 CFR 242.608(c).
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B. Further Requirements for the Revised New Consolidated Data Plan

    Based on its reconsideration of the comments received regarding the
CT Plan that was previously filed by the SROs,\29\ the Commission is
also adding certain requirements for the Revised New Consolidated Data
Plan. Specifically, the Revised New Consolidated Plan must include: (1)
a date certain by which the Revised New Consolidated Data Plan will
become fully effective, together with a prescribed timeline specifying
the actions or steps necessary to fully implement the Revised New
Consolidated Data Plan and the dates by which these actions and steps
must be completed, as well as a requirement for providing periodic
progress reports ; (2) a requirement that all persons who attend
operating committee meetings on behalf of an SRO (whether or not they
are voting representatives) be subject to the plan's conflicts-of-
interest and confidentiality provisions or policies; (3) specified
provisions regarding the sharing of protected information; and (4)
specified provisions regarding the use of subcommittees.
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    \29\ See supra note 13.
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1. Implementation
    The SROs shall include in their proposed plan a date certain by
which the Revised New Consolidated Data Plan will become fully
effective, together with a prescribed timeline specifying the actions
or steps necessary to fully implement the proposed plan

and the dates by which these actions and steps will be completed. The
proposed CT Plan filed by the SROs contained no deadline or timeline
for implementation, providing only that the plan would become operative
on the first day of the month that is at least 90 days after a series
of actions (which lacked their own deadlines) had taken place.\30\ And,
in response to the notice of the proposed CT Plan, the Commission
received a number of comments calling for the Commission to modify the
CT Plan to establish specified timeframes for actions necessary to
render the CT Plan effective or operative.\31\ These commenters stated
that the absence of specified timeframes and deadlines in the CT Plan
would cause the SROs to unduly delay its implementation.\32\ A number
of commenters also supported the Commission's imposing a one-year
deadline for the CT Plan to become fully operational.\33\
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    \30\ See CT Plan Notice, supra note 6, 85 FR at 64566.
    \31\ See, e.g., Letter from Ellen Greene, Managing Director,
Equity and Options Market Structure, SIFMA (Nov. 12, 2020) (``SIFMA
Letter I''), at 3; Letter from Ellen Greene, Managing Director,
Equity and Options Market Structure, SIFMA (Feb. 18, 2021) (``SIFMA
Letter II''), at 2; Letter from Michael Blasi, SVP, Enterprise
Infrastructure, and Krista Ryan, VP, Associate General Counsel,
Fidelity Investments (Nov. 12, 2020) (``Fidelity Letter''), at 2-3;
Letter from John Ramsay, Chief Market Policy Officer, IEX (Nov. 13,
2020) (``IEX Letter''), at 1-2; Letter from Rich Steiner, Head of
Client Advocacy and Market Innovation, RBC Capital Markets (Nov. 12,
2020) (``RBC Letter''), at 4; Letter from Thomas M. Merritt, Deputy
General Counsel, Virtu Financial, Inc. (Nov. 11, 2020) (``Virtu
Letter''), at 2; Letter from Jeffrey T. Brown, Senior Vice
President, Legislative and Regulatory Affairs, Charles Schwab & Co.,
Inc. (Nov. 12, 2020) (``Schwab Letter I''), at 2; Letter from
Jeffrey T. Brown, Senior Vice President, Legislative and Regulatory
Affairs, Charles Schwab & Co., Inc. (Feb. 11, 2021) (``Schwab Letter
II''), at 5; Letter from Joe Wald, Managing Director, Co-Head of
Electronic Trading, and Ray Ross, Managing Director, Co-Head of
Electronic Trading, BMO Capital Markets Group (Nov. 18, 2020) (``BMO
Letter I''), at 2-3; Letter from Joe Wald, Managing Director, Co-
Head of Electronic Trading, and Ray Ross, Managing Director, Co-Head
of Electronic Trading, BMO Capital Markets Group (Feb. 19, 2021)
(``BMO Letter II''), at 2; Letter from Anders Franzon, General
Counsel, MEMX (Feb. 5, 2021) (``MEMX Letter''), at 2-3; Letter from
Hubert De Jesus, Managing Director, Global Head of Market Structure
and Electronic Trading, and Samantha DeZur, Director, Global Public
Policy, BlackRock (Feb. 5, 2021) (``BlackRock Letter II''), at 2;
Letter from Jennifer W. Han, Managing Director & Counsel, Regulatory
Affairs, Managed Funds Association (Nov. 18, 2020) (``MFA Letter''),
at 4-5.
    \32\ See, e.g., IEX Letter, supra note 31, at 1; MFA Letter,
supra note 31, at 5; BMO Letter I, supra note 31, at 2; BMO Letter
II, supra note 31, at 2; Fidelity Letter, supra note 31, at 3;
Letter from Dorothy Donohue, Deputy General Counsel, Securities
Regulation, Investment Company Institute (Nov. 12, 2020) (``ICI
Letter I''), at 6-7; Letter from Dorothy Donohue, Deputy General
Counsel, Securities Regulation, Investment Company Institute (Feb.
5, 2021) (``ICI Letter II''), at 2; RBC Letter, supra note 31, at 3;
Letter from Kelvin To, Founder and President, Data Boiler
Technologies, LLC (Nov. 12, 2020) (``Data Boiler Letter I''), at 20.
    \33\ See SIFMA Letter I, supra note 31, at 3; SIFMA Letter II,
supra note 31, at 2; Fidelity Letter, supra note 31, at 4; IEX
Letter, supra note 31, at 2; RBC Letter, supra note 31, at 4; Virtu
Letter, supra note 31, at 2; Schwab Letter I, supra note 31, at 2;
Schwab Letter II, supra note 31, at 5; BMO Letter I, supra note 31,
at 2; MEMX Letter, supra note 31, at 2-3; BlackRock Letter II, supra
note 31, at 2.
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    Other commenters argued that there is no reasonable way for the
Commission to impose deadlines on any part of the process.\34\ One
commenter stated that the Commission was ``vastly underestimating'' the
amount of time needed to implement the new CT Plan, particularly given
the Commission's requirements with respect to an Administrator and a
new fee schedule.\35\ One commenter argued that any deadline the
Commission set would be ``inherently arbitrary'' and would do nothing
to move the project forward, cautioning that, ``rushing to complete an
inherently complex project may result in costly errors.'' \36\ Another
commenter discussed the complexity and uncertainty of determining fees,
selecting an independent administrator through a request-for-proposal
(``RFP'') process, and negotiating new contracts with processors, data
vendors and subscribers.\37\ This commenter stated that because the RFP
process is ``so specialized and idiosyncratic,'' there is ``no way to
reasonably impose time limits on any part of that process, let alone a
time limit for the entire process overall.'' \38\
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    \34\ See Letter from Joan C. Conley, Senior Vice President and
Corporate Secretary, Nasdaq, at 10 (Nov. 12, 2020) (``Nasdaq Letter
I); Letter from Erika Moore, Vice President and Corporate Secretary,
Nasdaq, at 2 (Feb. 5, 2021) (``Nasdaq Letter II''); Letter from
Elizabeth K. King, Chief Regulatory Officer, ICE, General Counsel
and Corporate Secretary, NYSE, at 33 (Nov. 16, 2020) (``NYSE Letter
I''); Letter from Patrick Sexton, EVP, General Counsel & Corporate
Secretary, Cboe Global Markets, Inc., at 5 (Nov. 12, 2020) (``Cboe
Letter'').
    \35\ Cboe Letter, supra note 34, at 6.
    \36\ Nasdaq Letter I, supra note 34, at 11.
    \37\ See NYSE Letter I, supra note 34, at 33-35. This commenter
further states that the 90-day period between the finalization of
earlier actions and the operational date is ``prudent'' and is the
current industry standard for announcing the implementation of
changes to market data plans. See id. at 35-36.
    \38\ Id. at 35. This commenter stated that OPRA's process to
select a processor took two years even though OPRA ultimately
decided to retain the same processor and cited the CAT NMS Plan for
the risk that a selected administrator might be unable to perform
the necessary functions, requiring that the RFP process be repeated.
See id.
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    The Commission believes that requiring the SROs to include in the
Revised New Consolidated Data Plan a date certain by which the plan
will be fully implemented, together with a prescribed timeline
specifying the actions or steps necessary to fully implement the
Revised New Consolidated Data Plan and the dates by which these actions
and steps must be completed, will facilitate implementation of the plan
by providing clear direction to the operating committee of the Revised
New Consolidated Data Plan and greater certainty for other industry
participants.\39\ The Commission further believes that requiring a date
certain for implementation and a prescribed timeline is important
because implementation of the Revised New Consolidated Data Plan is
critical to reducing existing redundancies, inefficiencies, and
inconsistencies in the current Equity Data Plans and to modernizing
plan governance,\40\ and because the Commission agrees with comments
that the absence of specified deadlines would likely cause undue delay
in implementing the new plan.\41\ While the Commission recognizes the
challenges associated with identifying and completing the actions or
steps necessary for implementation of the Revised New Consolidated Data
Plan, the Commission also believes that the SROs that will be the plan
participants have the relevant expertise and experience--both with
respect to operating NMS plans generally and with respect to the
dissemination of equity market data specifically--to establish
deadlines for fully implementing the Revised New Consolidated Data Plan
within a reasonable, specified length of time.
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    \39\ See, e.g., CT Plan Approval Order, supra note 8, 86 FR at
44147, 44207 (specifying deadlines for the completion of
intermediate steps and for the full implementation of the CT Plan),
vacated on other grounds, Nasdaq v. SEC, 38 F.4th 1126.
    \40\ See, e.g., Governance Order, supra note 4, 85 FR at 28703-
05, 28711.
    \41\ See, e.g., IEX Letter, supra note 31, at 1; MFA Letter,
supra note 31, at 5; BMO Letter I, supra note 31, at 2; BMO Letter
II, supra note 31, at 2; Fidelity Letter, supra note 31, at 3; ICI
Letter I, supra note 32, at 6-7; ICI Letter II, supra note 32, at 2;
RBC Letter, supra note 31, at 3.
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    In particular, the Commission found in the Governance Order that
the SROs could provide ``unique insight in formulating the terms and
conditions of the New Consolidated Data Plan,'' \42\ even as it also
highlighted the inherent conflicts of interest faced by SROs in the
operation of the existing plans.\43\ The Commission disagrees with the
comments that there is no reasonable way to impose deadlines on any
part of the process to implement the Revised New Consolidated Data
Plan,\44\ and

instead believes--consistent with the views of other market
participants,\45\ including market participants that have experience
with the operation of the current Equity Data Plans \46\--that the SROs
should be able to draw from their experience in operating the existing
Equity Data Plans, including supervising or serving as the
administrators of the Equity Data Plans, to complete the specific
actions or steps needed to implement the Revised New Consolidated Data
Plan within a specified timeframe. Moreover, the proposed plan filed by
the SROs will be published for comment, providing any interested
persons, including users of consolidated equity market data, with the
opportunity to comment on, among other things, the proposed timeline.
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    \42\ Governance Order, supra note 4, 85 FR at 28711.
    \43\ See, e.g., id. at 28713.
    \44\ See Nasdaq Letter I, supra note 34, at 10; Nasdaq Letter
II, supra note 34, at 2; NYSE Letter I, supra note 34, at 33; Cboe
Letter, supra note 34, at 5.
    \45\ See supra notes 31-33 and accompanying text.
    \46\ See IEX Letter, supra note 31, at 2; MEMX Letter, supra
note 31, at 2-3.
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    Finally, the Revised New Consolidated Data Plan shall include a
requirement that the operating committee of the Revised New
Consolidated Data Plan provide written progress reports to the
Commission, and to make these reports publicly available on the Revised
New Consolidated Data Plan's website,\47\ beginning three months after
the formation of the operating committee and continuing every three
months until the Revised New Consolidated Data Plan has been fully
implemented.\48\ These reports would be required to address the actions
undertaken and provide a detailed description of the progress made
toward completing each of the identified actions or steps with respect
to implementation of the Revised New Consolidated Data Plan.\49\ The
Commission shares commenters' views that periodic reports would provide
transparency with respect to the progress made to satisfy the
requirements of the plan, which would benefit not only the Commission
but also interested market participants.\50\ The requirement to provide
progress reports in writing to the Commission every three months and to
make them publicly available on the Revised New Consolidated Plan's
website is designed to help ensure that affected market participants
are informed about the status of the actions or steps that are taken to
implement the Revised New Consolidated Data Plan. Providing periodic
updates to the Commission should also facilitate the operating
committee's progress in completing the interim steps towards satisfying
the longer-range requirements.
---------------------------------------------------------------------------

    \47\ See 17 CFR 242.608(a)(8)(i).
    \48\ See, e.g., CT Plan Approval Order, supra note 8, 86 FR at
44149, 44207 (requiring that the operating committee of the CT Plan
provide quarterly written progress reports), vacated on other
grounds, Nasdaq v. SEC, 38 F.4th 1126.
    \49\ For each action or step in progress during a given three-
month period, the progress report generally should include: (1) the
date by which the action or step is scheduled to be completed; (2)
the currently targeted completion date; and (3) a description of (a)
the current status of the action or step, (b) any difference between
the scheduled completion date and the currently targeted completion
date, including the basis for making the adjustment on any other
action or step, and (c) any other factual indicators that
demonstrate the current level of completion with respect to the
action or step.
    \50\ See Fidelity Letter, supra note 31, at 3; IEX Letter, supra
note 31, at 2; BMO Letter I, supra note 31, at 3; BMO Letter II,
supra note 31, at 2; ICI Letter I, supra note 32, at 7. While one of
these commenters urged the Commission to provide financial
incentives to the SROs either through fines or through not allowing
the SROs to collect SIP fees for some period of time, see id. at 7,
the Commission believes that the required progress reports and the
involvement of the operating committee should be sufficient to
ensure timely implementation of the Revised New Consolidated Data
Plan.
---------------------------------------------------------------------------

    The Commission believes that the required frequency of the progress
reports--one report every three months--should be sufficient to
identify in a timely manner any notable delays in completing the
specified interim actions or steps needed to satisfy the deadlines to
be established for Revised New Consolidated Data Plan implementation
without imposing unnecessary burdens on efforts to implement the plan.
The Commission believes that this requirement should not be overly
burdensome to the operating committee or distract from its performance
of the specified actions required by the Revised New Consolidated Data
Plan because the progress reports would essentially reflect the
analysis the operating committee would need to undertake in any event
for its diligent oversight of the implementation process.
2. Application of the Conflicts-of-Interest and Confidentiality
Provisions or Policies to All SRO Personnel Who Attend Plan Meetings
    The Revised New Consolidated Data Plan shall require that any
persons designated by an SRO to attend meetings of the operating
committee or any subcommittee will be subject to the same conflicts-of-
interest and confidentiality provisions or policies that apply to
voting SRO representatives.
    Contemporaneously with issuing the Governance Order, the Commission
issued two sets of orders approving, as modified, proposed amendments
to the conflicts-of-interest policies of the Existing Data Plans
(``Conflicts of Interest Policy Approval Orders''),\51\ and proposed
amendments to the confidentiality policies of the Existing Data Plans
(``Confidentiality Policy Approval Orders'').\52\ The Governance Order
provided that the SROs must include in the new NMS plan (a)
``provisions designed to address conflicts of interest . . . as
outlined in the Conflicts of Interest Policy Approval Orders'' \53\;
and (b) ``provisions designed to protect confidential and proprietary
information from misuse as outlined in the Confidentiality Policy
Approval Orders.'' \54\
---------------------------------------------------------------------------

    \51\ See Securities Exchange Act Release No. 88823 (May 6,
2020), 85 FR 28046 (May 12, 2020) (File No. SR-CTA/CQ-2019-01)
(approving, as modified, proposed amendments to the conflicts-of-
interest policies of the CTA/CQ Plans); Securities Exchange Act
Release No. 88824 (May 6, 2020), 85 FR 28119 (May 12, 2020) (File
No. S7-24-89) (approving, as modified, proposed amendments to the
conflicts-of-interest policy of the UTP Plan).
    \52\ See Securities Exchange Act Release No. 88825 (May 6,
2020), 85 FR 28090 (May 12, 2020) (File No. SR-CTA/CQ-2019-04)
(approving, as modified, proposed amendments to the confidentiality
policies of the CTA/CQ Plans) (``CTA/CQ Confidentiality Order'');
Securities Exchange Act Release No. 88826 (May 6, 2020), 85 FR 28069
(May 12, 2020) (File No. S7-24-89) (approving, as modified, proposed
amendments to the confidentiality policy of the UTP Plan) (``UTP
Confidentiality Order'').
    \53\ See Governance Order, supra note 4, 85 FR at 28730.
    \54\ Id.
---------------------------------------------------------------------------

    In the proposed CT Plan, the SROs proposed that each SRO member of
a CT Plan would be able to designate a ``Member Observer,'' meaning
``any individual, other than a Voting Representative, that a Member, in
its sole discretion, determines is necessary in connection with such
[SRO's] compliance with its obligations under Rule 608(c) of Regulation
NMS to attend Operating Committee and subcommittee meetings.'' \55\
---------------------------------------------------------------------------

    \55\ See CT Plan Notice, supra note 6, 85 FR at 64576 (emphasis
added).
---------------------------------------------------------------------------

    In response to the proposed CT Plan, several commenters supported
extending the conflicts-of-interest policy to include Member
Observers.\56\ Specifically, these commenters recommended that all
observers be subject to the conflicts of interest policy and procedures
of the CT Plan.\57\ In contrast, one commenter objected to the
application of the conflicts of interest policy to Member Observers,
stating that most Member Observers are employees of the SRO charged
with that SRO's compliance obligations under Rule

608(c), and as such are already included in the conflict-of-interest
disclosures of the SRO.\58\ The commenter further argued that the
identity and affiliation of a Member Observer would be disclosed in
meeting minutes and that reasonable questions regarding the Member
Observer's affiliation could be addressed at the operating committee
meeting.\59\
---------------------------------------------------------------------------

    \56\ See RBC Letter, supra note 31; ICI Letter I, supra note 32;
Fidelity Letter, supra note 31.
    \57\ See RBC Letter, supra note 31, at 8-9; ICI Letter I, supra
note 32, at 5; Fidelity Letter, supra note 31, at 5.
    \58\ See Nasdaq Letter I, supra note 34, at 27.
    \59\ See id.
---------------------------------------------------------------------------

    The Commission believes that the provisions or policies of the
Revised New Consolidated Data Plan regarding disclosures of potential
conflicts of interest, as well as recusals, should apply to any person,
including a ``Member Observer'' or the equivalent, who attends any
meetings of the operating committee or any of its subcommittees on
behalf of an SRO, because the potential conflicts of interests that
apply to an SRO would apply equally to such a person.\60\ The
Commission does not agree with the view that all relevant information
regarding such a person would necessarily be included in the
disclosures of the related SRO, because, for example, the SRO
disclosures under the proposed CT Plan would have required only the
names of the voting representative and any alternate voting
representative designated by the SRO.
---------------------------------------------------------------------------

    \60\ See, e.g., CT Plan Approval Order, supra note 8, 86 FR at
44180-82, 44222 (modifying the proposed CT Plan to apply the
provisions regarding disclosure of conflicts of interest and
recusals to ``Member Observers''), vacated on other grounds, Nasdaq
v. SEC, 38 F.4th 1126.
---------------------------------------------------------------------------

    Additionally, all persons who attend meetings of the Revised New
Consolidated Data Plan on behalf of an SRO may have access to
competitively sensitive and commercially valuable information related
to the plan. Thus, a ``Member Observer'' or other exchange
representative who is responsible for and has a financial interest
(including compensation) in an exchange's proprietary market data
products would have an inherent conflict of interest.\61\ For these
reasons, the Commission believes that the conflicts of interest and
recusals provisions and policies of the Revised New Consolidated Data
Plan should explicitly apply to Member Observers or other persons who
attend any meetings of the new plan on behalf of an SRO. In particular,
this requirement is appropriate because it will prohibit an SRO from
appointing as a voting representative, ``Member Observer,'' or other
role with respect to the Revised New Consolidated Data Plan a person
who is responsible for or involved with the procurement for, or
development, modeling, pricing, licensing, or sale of, proprietary data
products offered to customers of the Revised New Consolidated Data
Plan's feeds if that person has a financial interest (including
compensation) that is tied directly to the SRO's market data business
or the procurement of market data, and if that compensation would cause
a reasonable objective observer to expect the compensation to affect
the impartiality of the representative.\62\
---------------------------------------------------------------------------

    \61\ See CT Plan Approval Order, supra note 8, 86 FR at 44181,
vacated on other grounds, Nasdaq v. SEC, 38 F.4th. 1126.
    \62\ See CT Plan Approval Order, supra note 8, 86 FR at 44181-
82, vacated on other grounds, Nasdaq v. SEC, 38 F.4th. 1126.
---------------------------------------------------------------------------

    Finally, while the Commission, as it did in the Governance
Order,\63\ is requiring the SROs to include in the Revised New
Consolidated Data Plan provisions designed to address conflicts of
interest as outlined in the Conflicts of Interest Policy Approval
Orders,\64\ the Commission is also, based on its experience with the
operations of the Equity Data Plans, requiring that the Revised New
Consolidated Data Plan incorporate a modified version of one of those
provisions. The Conflicts of Interest Policy Approval Orders contain
the following requirement:
---------------------------------------------------------------------------

    \63\ See Governance Order, supra note 4, 85 FR at 28730.
    \64\ See Conflicts of Interest Policy Approval Orders, supra
note 51.

    A Disclosing Party may not appoint as its representative a
person that is responsible for or involved with the development,
modeling, pricing, licensing, or sale of proprietary data products
offered to customers of a securities information processor if the
person has a financial interest (including compensation) that is
tied directly to the exchange's proprietary data business and if
that compensation would cause a reasonable objective observer to
expect the compensation to affect the impartiality of the
representative.\65\
---------------------------------------------------------------------------

    \65\ See Conflicts of Interest Policy Approval Orders, supra
note 51, 85 FR at 28056-57, 85 FR at 28129.

    The Commission believes that the term ``licensing'' with respect to
proprietary data products should explicitly include all functions
related to monitoring or ensuring a subscriber's compliance with the
terms of the license contained in its data subscription agreement,
including the auditing of subscriber data usage and payment. The
Commission believes that persons who are involved with regulatory
compliance, auditing, or similar responsibilities with respect to
subscriber data usage and payment for exchange proprietary data
products are subject to the same conflicts of interest as persons who
directly market to, or negotiate licensing or subscription agreements
with, subscribers of proprietary data products. Therefore, the
Commission is requiring that the Revised New Consolidated Data Plan
contain a provision that a person subject to the new plan's disclosure
and recusal provisions may not appoint as its representative a person
that is responsible for or involved with the development, modeling,
pricing, licensing (including all functions related to monitoring or
ensuring a subscriber's compliance with the terms of the license
contained in its data subscription agreement and all functions relating
to the auditing of subscriber data usage and payment), or sale of
proprietary data products offered to customers of a securities
information processor if the person has a financial interest (including
compensation) that is tied directly to the exchange's proprietary data
business and if that compensation would cause a reasonable objective
observer to expect the compensation to affect the impartiality of the
representative.
3. Sharing of Protected Information
    As noted above,\66\ in the Governance Order, the Commission
required the SROs to submit an NMS plan that included ``provisions
designed to protect confidential and proprietary information from
misuse as outlined in the Confidentiality Policy Approval Orders.''
\67\
---------------------------------------------------------------------------

    \66\ See supra note 54 and accompanying text.
    \67\ See Governance Order, supra note 4, 85 FR at 28730.
---------------------------------------------------------------------------

    In response to the proposed CT Plan, some commenters opposed
language in the required confidentiality policy that they said limited
a Covered Person's ability to disclose to others, including agents,
Restricted Information and Highly Confidential Information.\68\
Generally, these commenters stated that the restriction was broad and
would impede the ability of the plan administrator and processors to
perform tasks--such as hiring independent auditors and outside counsel
to perform administrative functions--necessary for an SRO to comply
with its obligations pursuant to Rule 608.\69\ For example,

these commenters argued that for the administrator to provide services
to the CT Plan, such as audited financial statements, the administrator
must be able to provide Restricted Information and Highly Confidential
Information to an independent auditor, but would be restricted from
doing so under the CT Plan's confidentiality policy.\70\ One commenter
argued that the policies are impermissibly vague.\71\ Another commenter
recommended that the Commission eliminate or substantially modify the
prohibition on providing confidential information to agents.\72\
---------------------------------------------------------------------------

    \68\ See NYSE Letter I, supra note 34, at 15, 23; Nasdaq Letter
I, supra note 34, at 4-6. The terms Covered Person, Restricted
Information, Highly Confidential Information, and Confidential
Information were defined in the confidentiality policies approved
for the Existing Data Plans, as modified, in the Confidentiality
Policy Approval Orders. See supra note 52.
    \69\ See NYSE Letter I, supra note 34, at 23-24; Letter from
Elizabeth K. King, Chief Regulatory Officer, ICE, General Counsel
and Corporate Secretary, NYSE, at 5 (Feb. 4, 2021) (``NYSE Letter
II''); Nasdaq Letter I, supra note 34, at 5-6; Cboe Letter, supra
note 34, at 8 (stating that policy could be read to prohibit the
sharing of certain types of confidential information with outside
legal counsel, auditors, or other service providers that have a need
to access that information).
    \70\ See NYSE Letter I, supra note 34, at 23-24. See also Nasdaq
Letter I, supra note 34, at 6 (stating that its auditors have
expressed concerns about whether the policy is consistent with
professional obligations that require them to subject their work to
peer review and that may therefore require making Restricted or
Highly Confidential Information available to persons who are not
Covered Persons).
    \71\ See Cboe Letter, supra note 34, at 7-8 (arguing that the
policies would limit access to certain confidential information to
the particular individual who is representing an SRO and would
further limit the ability of an individual SRO representative to
share information and consult with other employees of the SRO that
is the actual plan participant).
    \72\ See NYSE Letter I, supra note 34, at 24; NYSE Letter II,
supra note 69, at 5.
---------------------------------------------------------------------------

    After considering these comments, the Commission believes that it
is appropriate for the Revised New Consolidated Data Plan to provide
for additional sharing of protected information in certain
circumstances beyond those specifically provided for in the
Confidentiality Policy Approval Orders, as discussed below.\73\
---------------------------------------------------------------------------

    \73\ See Confidentiality Policy Approval Orders, supra note 54.
---------------------------------------------------------------------------

(a) Restricted Information
    As discussed above, commenters on the CT Plan raised concerns that
the confidentiality policy improperly limits the plan administrator's
and processors' ability to share Restricted Information with others,
including agents, impeding the ability of an agent to perform its
specific services to the plan. The Commission has reconsidered these
commenters' concerns and believes that it is appropriate to permit such
disclosure when the operating committee of the Revised New Consolidated
Data Plan, consistent with the purposes and goals of the plan,
determines that it is appropriate to do so, because there may be
instances in which Restricted Information would be required to be
disclosed to a Covered Person or third party in the service of the
plan.\74\ Accordingly, the Revised New Consolidated Data Plan shall
provide that the operating committee may authorize the disclosure of
specified Restricted Information to identified Covered Persons or third
parties, if it determines that doing so is in furtherance of the
interests of the plan. Further, the Revised New Consolidated Data Plan
shall provide that such authorization will be granted on a case-by-case
basis, unless the operating committee grants standing approval to allow
disclosure of specified recurring information to identified Covered
Persons. This requirement is appropriate because it is responsive to
comments about the appropriate limits regarding such information and
promotes efficiency by allowing for the disclosure of Restricted
Information to identified Covered Persons on an ongoing basis, where
appropriate, without having to continually seek operating committee
approval.
---------------------------------------------------------------------------

    \74\ The requirements discussed in this section regarding
Restricted Information are consistent with the modifications the
Commission made to the confidentiality policy of the CT Plan. See CT
Plan Approval Order, supra note 8, 86 FR at 44185, 44223-24, vacated
on other grounds, Nasdaq v. SEC, 38 F.4th. 1126.
---------------------------------------------------------------------------

    Finally, the Revised New Consolidated Data Plan shall require that
Covered Persons and third parties that receive or have access to
Restricted Information pursuant to authorization from the operating
committee must segregate the information, retain it in confidence, and
use it only in a manner consistent with the terms of the
confidentiality policy. The Commission continues to believe that
``Restricted Information, including personally identifiable
information, customer-specific financial information, and audit
information, is highly sensitive to such a degree that its possession
and use should be tightly controlled.'' \75\ This requirement is
appropriate because limiting access to and the use of Restricted
Information will reduce the risk that highly sensitive customer and
personally identifiable information is misused.
---------------------------------------------------------------------------

    \75\ CTA/CQ Confidentiality Order, supra note 52, 85 FR at
28099; UTP Confidentiality Order, supra note 52, 85 FR at 28077.
---------------------------------------------------------------------------

(b) Highly Confidential Information
    As noted above, some commenters stated that the Confidentiality
Policy would preclude SROs from fulfilling their obligations under the
securities laws. Specifically, commenters argued that the SROs--not the
individual voting representatives--have responsibilities under the Act
and rules of the Commission and must be able to determine what
information is available to individuals within an SRO in order to
satisfy the SRO's regulatory obligations.\76\ Another commenter stated
that under the proposed confidentiality policy an SRO's senior
management would not be able to access information that may be
necessary to make informed decisions related to the CT Plan if that
information is determined to be Highly Confidential Information or
Confidential Information.\77\ This commenter stated that, for example,
an SRO's senior management would be denied access to privileged
information, which is classified as Highly Confidential Information,
and therefore prevented from participating in decisions regarding legal
strategy and litigation involving the CT Plan or regulatory
interactions with the Commission.\78\ Thus, these commenters stated
that the Commission may not approve an NMS plan that prohibits SROs'
senior management from having access to information that may be
necessary to their informed decision-making related to regulatory
obligations.\79\
---------------------------------------------------------------------------

    \76\ See NYSE Letter I, supra note 34, at 16-17; NYSE Letter II,
supra note 69, at 4-5; Nasdaq Letter I, supra note 34, at 3.
    \77\ See NYSE Letter I, supra note 34, at 17.
    \78\ See id. at 17.
    \79\ See id.; NYSE Letter II, supra note 69, at 5; see also
Nasdaq Letter I, supra note 34, at 3.
---------------------------------------------------------------------------

    In response to commenters' concerns regarding the provisions
governing disclosure of Highly Confidential Information, the Commission
stated in the CT Plan Approval Order that the proposed language of the
CT Plan was too general to provide a meaningful limitation on the
sharing of commercially sensitive information or to provide useful
guidance regarding what disclosures would be permissible, and the
Commission continues to believe that the Revised New Consolidated Data
Plan must clearly specify the instances in which Highly Confidential
Information is permitted to be shared.\80\ The Commission believes that
a general prohibition on sharing, paired with specific instances of
permissible sharing, which are discussed below, would establish clear
and limited circumstances for appropriate permitted disclosure of
Highly Confidential Information.
---------------------------------------------------------------------------

    \80\ See CT Plan Approval Order, supra note 8, 86 FR at 44186,
vacated on other grounds, Nasdaq v. SEC, 38 F.4th. 1126. The
requirements discussed in this section regarding Highly Confidential
Information are consistent with the modifications the Commission
made to the confidentiality policy of the CT Plan. See id. at 44186-
87, 44223-24.
---------------------------------------------------------------------------

    In addition to disclosures that are required by applicable law,\81\
the

Commission believes that SRO voting representatives on the operating
committee of the Revised New Consolidated Data Plan should be permitted
to share Highly Confidential Information with officers or agents of
their SRO under certain circumstances. Specifically, SRO voting
representatives should be able to share certain types of Highly
Confidential Information with officers of their SRO who have direct or
supervisory responsibility for the SRO's participation in the Revised
New Consolidated Data Plan, or with agents for the SRO supporting the
SRO's participation, provided that such information may not be used in
the procurement for, or development, modeling, pricing, licensing, or
sale of, proprietary data products. This requirement is appropriate
because it recognizes that certain officers and agents of an SRO may
require relevant plan information in order to comply with regulatory
obligations. However, the Commission remains ``concerned about the
possibility of a Participant exchange obtaining commercially valuable
data and information through its affiliates and employees that have
responsibilities to the Plans, and then using that information and/or
sharing it with employees or affiliates of the Participant exchange to
benefit the exchange's proprietary data businesses.'' \82\ In
particular, because Highly Confidential Information contains highly
sensitive and entity-specific information,\83\ the Commission believes
that both access to and use of such information should be limited to
reduce the likelihood that Highly Confidential Plan Information will be
used to promote the commercial interests of an SRO participant.
Therefore, the Commission believes that access to Highly Confidential
Information should be limited to officers of an SRO who have a direct
or supervisory responsibility for the SRO's participation in the plan,
or with agents for the SRO that support the SRO's participation in the
plan, and that the information shared must not be used in the
procurement for, or development, modeling, pricing, licensing, or sale
of, proprietary data products.
---------------------------------------------------------------------------

    \81\ As defined in the proposed CT Plan in Article I, Section
1.1(e), ``Applicable Law'' would mean ``all applicable provisions of
(a) constitutions, treaties, statutes, laws (including the common
law), rules, regulations, decrees, ordinances, codes, proclamations,
declarations or orders of any Governmental Authority; (b) any
consents or approvals of any Governmental Authority; and (c) any
orders, decisions, advisory or interpretative opinions, injunctions,
judgments, awards, decrees of, or agreements with, any Governmental
Authority.'' CT Plan Notice, supra note 6, 85 FR at 64575.
    \82\ CTA/CQ Confidentiality Order, supra note 52, 85 FR at
28093; UTP Confidentiality Order, supra note 52, 85 FR at 28071.
    \83\ See, e.g., CTA/CQ Confidentiality Order, supra note 52, 85
FR at 28098; UTP Confidentiality Order, supra note 52, 85 FR at
28077.
---------------------------------------------------------------------------

    Additionally, the Commission believes that it is appropriate to
identify the types of Highly Confidential Information permitted to be
disclosed by the SRO voting representative as: (i) the plan's contract
negotiations with the Processor(s) or Administrator; (ii)
communications with, and work product of, counsel to the plan; and
(iii) information concerning personnel matters that affect the
employees of the SRO or of the plan. The Commission believes that an
SRO voting representative should be permitted to share the contract
negotiations with the processor(s) or administrator because the SRO
will directly interact with the processor(s) and administrator pursuant
to such contracts and would need to know the terms and conditions to
ensure that it complies with the requirements of the plan. Similarly,
the Commission believes that SRO voting representatives should be
permitted to share communications and work product of counsel to the
plan with officers of their SRO because counsel would be representing
the SROs, and SRO officers who have a direct or supervisory
responsibility for the SRO's participation in the plan would need to be
informed in order to provide relevant information to counsel or to make
decisions related to plan matters. The Commission further believes that
information regarding personnel matters that affect the employees of an
SRO should be permitted to be shared with officers of that SRO and for
information regarding personnel matters that affect the employees of
the plan to be shared with officers of all of the SROs, because the
SROs are responsible for the oversight of their own employees, and they
will collectively be responsible for the operations of the plan,
including oversight of plan employees.\84\ Therefore, officers of an
SRO responsible for compliance with the terms of the Revised New
Consolidated Data Plan and Rule 608 would need to be aware of the
personnel information described above.
---------------------------------------------------------------------------

    \84\ For example, if the operating committee of the plan became
aware that the employee of an SRO had improperly disclosed or made
use of customer-specific financial information, the Commission
believes that the voting representative of that SRO should be
permitted to inform officers of that SRO of the relevant facts.
Similarly, if the operating committee became aware that a plan
employee had engaged in similar conduct, the Commission believes
that the officers of all the SROs should be permitted to be informed
of the relevant facts.
---------------------------------------------------------------------------

    The Commission, however, does not believe that SRO voting
representatives should be permitted to share with officers or agents of
their SRO information concerning customers or the intellectual property
of other SROs or customers. The Commission does not believe that SRO
officers or agents require detailed audit information regarding
individual customers' use of and payment for consolidated data--highly
sensitive information that may be commercially valuable--to comply with
the provisions of the Revised New Consolidated Data Plan or with their
regulatory obligations under the plan. In addition, the Commission
believes that such aggregated information about usage of and payment
for consolidated market data (for example, information about the number
of users, amount of usage, and fees received for individual
consolidated data products) should not be shared because, while it
would not disclose the usage and payment of individual users, it would
contain valuable information about demand for and profitability of
consolidated data products, which could be used to market competing
proprietary market data products to individual subscribers. Further, as
the Commission has stated, personally identifiable information,
customer-specific financial information, and audit information is
highly sensitive to such a degree that its possession and use should be
tightly controlled.\85\ Additionally, the Commission does not believe
that officers or agents of an SRO would require information concerning
the intellectual property of another SRO to fulfill its obligations
under the plan. SROs are in competition with each other, and sharing
such information would not be in furtherance of the purposes of the
Revised New Consolidated Data Plan.
---------------------------------------------------------------------------

    \85\ See, e.g., CTA/CQ Confidentiality Order, supra note 52, 85
FR at 28099; UTP Confidentiality Order, supra note 52, 85 FR at
28077.
---------------------------------------------------------------------------

    The Commission also believes that Covered Persons who receive or
have access to Highly Confidential Information as described above
should be required to segregate the information, retain it in
confidence, and use it only in a manner consistent with the terms of
the confidentiality provisions or policies of the Revised New
Consolidated Data Plan. The Commission believes that these requirements
would help to ensure that Highly Confidential Information is not made
available to persons who are not authorized to have access to the
information and that Highly Confidential Information that has been
shared in a permissible manner is not misused (such as in the
development or

marketing of an SRO's proprietary market data products).
    Further, the Commission believes that an SRO voting representative
who discloses Highly Confidential Information as described above should
be required to maintain a log documenting each instance of such
disclosure, including the information shared, the persons receiving the
information, and the date the information was shared. The Commission
believes that the requirement to log the sharing of Highly Confidential
Information would provide greater transparency and accountability
regarding the sharing of this information because the log would assist
compliance personnel at the SRO in ensuring that the SRO is complying
with the terms of the plan that limit the sharing of Highly
Confidential Information.\86\
---------------------------------------------------------------------------

    \86\ Under Rule 608(c), 17 CFR 242.608(c), an SRO is required to
comply with the terms of NMS plans of which it is a participant.
Additionally, as a record of the SRO under Rule 17a-1, 17 CFR
240.17a-1, the log would also be available to the Commission and its
staff in the context of an examination or investigation of, for
example, the SRO's compliance with the terms of the Revised New
Consolidated Data Plan.
---------------------------------------------------------------------------

    The Commission similarly believes that the Revised New Consolidated
Data Plan should allow the operating committee of the plan to authorize
the disclosure of specified Highly Confidential Information to
identified third parties that are acting as agents of the plan. The
Commission believes that this provision is appropriate because certain
agents of the plan may at times require protected information to make
informed decisions regarding the plan and to assist a SRO's compliance
with its regulatory obligations. The Commission believes that such
authorization should be permitted only on a case-by-case basis, unless
the operating committee grants standing approval to allow disclosure of
specified recurring information to identified third parties. The
Commission further believes that the Revised New Consolidated Data Plan
should require that third parties that receive or have access to Highly
Confidential Information segregate the information, retain it in
confidence, and use it only in a manner consistent with the terms of
the confidentiality provisions or policies.\87\ The Commission believes
that these requirements are appropriate because they are designed to
ensure that the disclosed information is properly protected and not
misused and because they would promote an efficient process by allowing
for the ongoing disclosure of Highly Confidential Information to an
identified agent without having to continually seek operating committee
approval.
---------------------------------------------------------------------------

    \87\ For example, the operating committee, when granting access
to Highly Confidential Information to a third party (other than the
Commission), could accomplish this by requiring the recipient to
sign an agreement to abide by these requirements for storage and
restrictions on use.
---------------------------------------------------------------------------

(c) Confidential Information
    One commenter on the proposed CT Plan stated that the
confidentiality policy would imply that ``Confidential Information
cannot be shared at all, or at a minimum, casts substantial doubt on
what can be shared.'' \88\ The commenter stated that the proposed
provision impedes the functioning of the national market system and
asked the Commission to eliminate or substantially modify the
restriction and solicit comment.\89\
---------------------------------------------------------------------------

    \88\ NYSE Letter I, supra note 34, at 24.
    \89\ See id.
---------------------------------------------------------------------------

    In response to this commenter's concern and consistent with the
discussion above, as well as the CT Plan Approval Order,\90\ the
Commission continues to believe that the Revised New Consolidated Data
Plan should permit Covered Persons to disclose Confidential Information
only to other persons who need to receive that information to fulfill
their responsibilities pursuant to the Revised New Consolidated Data
Plan, including oversight of the plan.\91\ The Commission believes that
this requirement is appropriate because, consistent with the current
practices of the Equity Data Plans, financial information necessary for
the leadership of an SRO to make decisions regarding the SRO's
participation in the Revised New Consolidated Data Plan--namely,
information regarding plan expenses and revenues--would be designated
as Confidential and thus permitted to be shared. Consistent with other
confidentiality provision requirements discussed above, the Commission
also believes that the Revised New Consolidated Data Plan should be
required to ensure that recipients of Confidential Information
segregate the information, retain it in confidence, and use it only in
a manner consistent with the terms of the confidentiality provisions or
policies of the Revised New Consolidated Data Plan.
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    \90\ See CT Plan Approval Order, supra note 8, 86 FR at 44188.
    \91\ The requirements discussed in this section regarding
Confidential Information are consistent with the modifications the
Commission made to the confidentiality policy of the CT Plan. See CT
Plan Approval Order, supra note 8, 86 FR at 44188, 44223-24, vacated
on other grounds, Nasdaq v. SEC, 38 F.4th 1126.
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    Consistent with the CT Plan Approval Order, the Commission
continues to believe that the operating committee should also be
permitted to authorize the sharing of Confidential Information.\92\ The
Commission believes that such authorization should be permitted only on
a case-by-case basis, unless the operating committee of the Revised New
Consolidated Data Plan grants standing approval to allow disclosure of
specified recurring information to identified Covered Persons. These
requirements are appropriate because expressly including these
requirements for handling Confidential Information would provide
additional safeguards regarding disclosure of Confidential Information
and help to guard against misuse of this information for commercial or
other purposes.
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    \92\ See CT Plan Approval Order, supra note 8, 86 FR at 44188.
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4. Use of Subcommittees
    One commenter on the CT Plan stated that the activities of
subcommittees under the CT Plan would lack transparency and
accountability.\93\ The Commission continues to believe that, as it
stated in the CT Plan Approval Order, ``the activities of the CT Plan's
Operating Committee's subcommittees, if any, should be transparent to
the Operating Committee,'' \94\ and that transparency ``should help to
ensure that the subcommittee furthers the objectives of'' the Revised
New Consolidated Data Plan.\95\ The Commission believes that this
transparency would both facilitate a meaningful role for members of the
advisory committee and support Commission oversight of the Revised New
Consolidated Data Plan's operations.
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    \93\ See RBC Letter, supra note 31, at 8.
    \94\ CT Plan Approval Order, supra note 8, 86 FR at 44177,
vacated on other grounds, Nasdaq v. SEC, 38 F.4th 1126.
    \95\ Id.
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    Therefore, the Revised New Consolidated Data Plan shall require
that all subcommittees prepare minutes of all meetings and make those
minutes available to all members of the operating committee and the
advisory committee.\96\ The Commission believes that this requirement
would provide for transparency and accountability to members of both
the operating committee and the advisory committee regarding the
operation of subcommittees. In addition, for each meeting of a legal
subcommittee, the Commission believes that the plan

should require that the minutes include (i) attendance at the meeting;
(ii) the subject matter of each item discussed; (iii) sufficient non-
privileged information to identify the rationale for referring the
matter to the legal subcommittee, and (iv) the privilege or privileges
claimed with respect to that item. The Commission believes that
including in the minutes of legal subcommittee meetings these elements
of information--similar to those required for privilege logs--would
provide for transparency and accountability to members of both the
operating committee and the advisory committee regarding the use of the
legal subcommittee, while including features designed to help preserve,
to the extent appropriate, the SROs' attorney-client privilege with
respect to discussions at legal subcommittee meetings by making the
information required to be included in the minutes consistent with what
might be required to be contained in a privilege log.
---------------------------------------------------------------------------

    \96\ See, e.g., id. at 8 (calling for the CT Plan to keep
minutes and distribute them to the Operating Committee of the CT
Plan to increase transparency and accountability).
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    The Commission also believes that the Revised New Consolidated Data
Plan's use of subcommittees should not be permitted to undermine the
role of the independent administrator. Therefore, the Commission is
requiring that the terms of the Revised New Consolidated Data Plan
exclude from the functions that may be delegated to a subcommittee
those administrative functions to be performed by the independent
administrator. The functions delegated to the independent
administrator--particularly those that involve administering vendor and
subscriber contracts, performing audits, or assessing fees--necessarily
involve access to sensitive information of significant commercial or
competitive value and therefore raise heightened concerns about
conflicts of interest. These functions should therefore be retained by
the independent administrator, which will be subject to enhanced
isolation from those conflicts of interest--namely, the requirement
that the independent administrator be independent of any SRO that sells
its own proprietary equity market data.\97\
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    \97\ The Commission continues to believe, as it stated in the CT
Plan Approval Order, that the independence requirement ``separate[s]
the independent Administrator from an exchange's commercial
interests and allow[s] it to focus on the regulatory objectives of
section 11A of the Act.'' CT Plan Approval Order, supra note 8, 86
FR at 44196 (quoting Governance Order, supra note 4, 85 FR at
28723), vacated on other grounds,Nasdaq v. SEC, 38 F.4th 1126.
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III. The Revised New Consolidated Data Plan

    The Commission hereby orders the Participants in the Equity Data
Plans to jointly develop and file with the Commission, as an NMS plan
pursuant to Rule 608(a) of Regulation NMS,\98\ a single Revised New
Consolidated Data Plan that replaces the three current Equity Data
Plans and that includes, at a minimum, the terms and conditions set
forth below:
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    \98\ 17 CFR 242.608(a). The Revised New Consolidated Data Plan,
or any amendment thereto, must comply with the requirements of Rule
608 of Regulation NMS, including the requirement in Rule 608(a) to
include an analysis of the impact on competition. Id.
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     The Revised New Consolidated Data Plan shall provide for
the orderly transition of functions and responsibilities from the three
existing Equity Data Plans and shall provide that dissemination of, and
fees for, SIP data will continue to be governed by the provisions of
the Equity Data Plans until the Revised New Consolidated Data Plan is
ready to assume responsibility for the dissemination of SIP data and
fees of the Revised New Consolidated Data Plan have become effective.
     The Revised New Consolidated Data Plan shall provide a
date certain by which it will be fully implemented and shall include a
timeline specifying the actions or steps necessary to implement the
Revised New Consolidated Data Plan, including the dates by which these
actions and steps will be completed.\99\
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    \99\ The Commission has added this new requirement for the
Revised New Consolidated Data Plan based on its reconsideration of
the comments received regarding the CT Plan that was previously
filed by the SROs. The Commission's rationale for this new
requirement is discussed above in Section II.B.1.
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     The operating committee of the Revised New Consolidated
Data Plan shall--beginning three months after the formation of the
operating committee and continuing every three months until the Revised
New Consolidated Data Plan has been fully implemented--provide written
progress reports to the Commission every three months regarding the
actions undertaken and provide a detailed description of the progress
made toward completing each of the identified actions or steps required
to fully implement the Revised New Consolidated Data Plan and shall
make these reports publicly available on the Revised New Consolidated
Plan's website.\100\
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    \100\ The Commission has modified this requirement for the
Revised New Consolidated Data Plan based on its reconsideration of
the comments received regarding the CT Plan that was previously
filed by the SROs. The Commission's rationale for this amended
requirement is discussed above in Section II.B.1.
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     The Revised New Consolidated Data Plan shall provide that
each exchange group and unaffiliated SRO will be entitled to name a
member of the operating committee who will be authorized to cast one
vote on all operating committee matters pertaining to the operation and
administration of the Revised New Consolidated Data Plan, provided that
a member representing an exchange group or an unaffiliated SRO whose
market center(s) have consolidated equity market share of more than 15
percent during four of the six calendar months preceding a vote of the
operating committee will be authorized to cast two votes, and provided
that a member representing an exchange that has ceased operations as an
equity trading venue, or has yet to commence operation as an equity
trading venue, will not be permitted to cast a vote on Revised New
Consolidated Data Plan matters.
     The Revised New Consolidated Data Plan shall include
provisions to address circumstances in which a member is unable to
attend an operating committee meeting or to cast a vote on a matter.
     The Revised New Consolidated Data Plan shall provide that
all actions under the terms of the Revised New Consolidated Data Plan,
except the selection of Advisory Committee members and the decision to
enter into an executive session, will be required to be authorized by a
two-thirds majority of the votes allocated to the operating committee.
     The Revised New Consolidated Data Plan shall provide for a
non-voting Advisory Committee to be selected by majority vote of the
operating committee. The Advisory Committee shall consist of
individuals representing each of the following categories: an
institutional investor, a broker-dealer with a predominantly retail
investor customer base, a broker-dealer with a predominantly
institutional investor customer base, a securities market data vendor,
an issuer of NMS stock, and a person who represents the interests of
retail investors (``retail representative''), provided that the
representatives of the securities market data vendor and the issuer are
not permitted to be affiliated or associated with an SRO, a broker-
dealer, or an investment adviser with third-party clients. The retail
representative shall have experience working with or on behalf of
retail investors and have the requisite background and professional
experience to understand the interests of retail investors, the work of
the operating committee of the Revised New Consolidated Data Plan, and
the role of market data in the U.S. equity market. The retail
representative shall not be affiliated with an SRO or a broker-dealer.

     The Revised New Consolidated Data Plan shall provide that
the responsibilities of the operating committee will include:
    [cir] Proposing amendments to the Revised New Consolidated Data
Plan or implementing other policies and procedures as necessary to
ensure prompt, accurate, reliable, and fair collection, processing,
distribution, and publication of information with respect to quotations
for and transactions in NMS stocks and the fairness and usefulness of
the form and content of that information;
    [cir] Selecting, overseeing, specifying the role and
responsibilities of, and evaluating the performance of, an independent
plan administrator, plan processors, an auditor, and other professional
service providers, provided that any expenditures for professional
services that are paid for from Revised New Consolidated Data Plan
revenues must be for activities consistent with the terms of the
Revised New Consolidated Data Plan and must be authorized by the
operating committee;
    [cir] Developing and maintaining fair and reasonable fees and
consistent terms for the distribution, transmission, and aggregation of
core data;
    [cir] Reviewing the performance of the plan processors; and
ensuring the public reporting of plan processors' performance and other
metrics and information about the plan processors;
    [cir] Assessing the marketplace for equity market data products and
ensuring that SIP data offerings are priced in a manner that is fair
and reasonable, and designed to ensure the widespread availability of
SIP data to investors and market participants; and
    [cir] Designing a fair and reasonable revenue allocation formula
for allocating plan revenues to be applied by the independent plan
administrator, and overseeing, reviewing and revising that formula as
needed.
     The Revised New Consolidated Data Plan shall provide that
the independent plan administrator will not be owned or controlled by a
corporate entity that, either directly or via another subsidiary,
offers for sale its own proprietary market data product for NMS stocks.
     The Revised New Consolidated Data Plan shall include
provisions designed to address the conflicts of interest of members as
outlined in the Conflicts of Interest Policy Approval Orders.\101\
These disclosure and recusal provisions shall apply to any person
designated by an SRO to attend meetings of the operating committee or
any of its subcommittees, and they shall include a provision that a
person subject to the disclosure and recusal provisions may not appoint
as its representative a person that is responsible for or involved with
the development, modeling, pricing, licensing (including all functions
related to monitoring or ensuring a subscriber's compliance with the
terms of the license contained in its data subscription agreement and
all functions relating to the auditing of subscriber data usage and
payment), or sale of proprietary data products offered to customers of
a securities information processor if the person has a financial
interest (including compensation) that is tied directly to the
exchange's proprietary data business and if that financial interest
would cause a reasonable objective observer to expect the compensation
to affect the impartiality of the representative.\102\
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    \101\ The term ``Conflicts of Interest Policy Approval Orders''
refers to Securities Exchange Act Releases Nos. 88823 (May 6, 2020),
85 FR 28046 (May 12, 2020) (File No. SR-CTA/CQ-2019-01); and 88824
(May 6, 2020), 85 FR 28119 (May 12, 2020) (File No. S7-24-89). See
Governance Order, supra note 4, 85 FR at 28725 & n.326.
    \102\ The Commission has modified this requirement for the
Revised New Consolidated Data Plan based on its reconsideration of
the comments received regarding the CT Plan that was previously
filed by the SROs and on its experience with the operations of the
Equity Data Plans. The Commission's rationale for the amendments to
this requirement is discussed above in Section II.B.2.
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     The Revised New Consolidated Data Plan shall include
provisions designed to protect confidential and proprietary information
from misuse as outlined in the Confidentiality Policy Approval
Orders,\103\ with the following requirements: \104\
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    \103\ The term ``Confidentiality Policy Approval Orders'' refers
to Securities Exchange Act Release Nos. 88825 (May 6, 2020), 85 FR
28090 (May 12, 2020) (File No. SR-CTA/CQ-2019-04); and 88826 (May 6,
2020), 85 FR 28069 (May 12, 2020) (File No. S7-24-89). See
Governance Order, supra note 4, 85 FR at 28726 & n.340.
    \104\ The Commission has modified this requirement for the
Revised New Consolidated Data Plan based on its reconsideration of
the comments received regarding the CT Plan that was previously
filed by the SROs. The Commission's rationale for the amendments to
this requirement is discussed above in Section II.B.3.
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    [cir] These provisions shall apply to any person designated by an
SRO to attend meetings of the operating committee or any of its
subcommittees.
    [cir] The Revised New Consolidated Data Plan shall provide that the
operating committee may authorize the disclosure of specified
Restricted Information to identified Covered Persons or third parties,
if it determines that doing so is in furtherance of the interests of
the plan, and that such authorization shall be granted on a case-by-
case basis, unless the operating committee grants standing approval to
allow disclosure of specified recurring information to identified
Covered Persons.
    [cir] The Revised New Consolidated Data Plan shall provide that
Covered Persons and third parties that receive or have access to
Restricted Information pursuant to authorization by the operating
committee must segregate the information, retain it in confidence, and
use it only in a manner consistent with the terms of the plan's
confidentiality provisions and policies.
    [cir] The Revised New Consolidated Data Plan shall permit SRO
voting representatives on the operating committee to share the only
following types of Highly Confidential Information, and only with
officers of their SRO who have direct or supervisory responsibility for
the SRO's participation in the new plan, or with agents for the SRO
that support the SRO's participation in the plan, provided that such
information may not be used in the procurement for, or development,
modeling, pricing, licensing, or sale of, proprietary equity market
data products: (i) the plan's contract negotiations with the
Processor(s) or Administrator; (ii) communications with, and work
product of, counsel to the plan; and (iii) information concerning
personnel matters that affect the employees of the SRO.
    [cir] The Revised New Consolidated Data Plan shall provide that an
SRO voting representative that discloses Highly Confidential
Information shall maintain a log documenting each instance of such
disclosure, including the information shared, the persons receiving the
information, and the date the information was shared. The Revised New
Consolidated Data Plan shall require that that Covered Persons who
receive or have access to Highly Confidential Information must
segregate the information, retain it in confidence, and use it only in
a manner consistent with the terms of the plan's confidentiality
provisions and policies.
    [cir] The Revised New Consolidated Data Plan shall provide that
Covered Persons may disclose Confidential Information only to other
persons who need to receive such information to fulfill their
responsibilities pursuant to the plan, including oversight of the plan.
    [cir] The Revised New Consolidated Plan shall provide that the
operating committee may authorize the disclosure of confidential
information and that such authorization shall be made on a case-by-case
basis, unless the operating committee grants standing approval to

allow disclosure of specified recurring information to identified
Covered Persons.
    [cir] The Revised New Consolidated Data Plan shall provide that
recipients of Confidential Information must segregate the information,
retain it in confidence, and use it only in a manner consistent with
the terms of the plan's confidentiality provisions and policies.
     The Revised New Consolidated Data Plan shall identify the
circumstances in which members may meet in executive session and shall
confine executive sessions to circumstances in which it is appropriate
to exclude members of the Advisory Committee.
     The Revised New Consolidated Data Plan shall provide that
requests to enter into an executive session must be included on a
written agenda, along with a clearly stated rationale for each matter
to be discussed, and that each such request must be approved by a
majority vote of the operating committee.
     The Revised New Consolidated Data Plan shall require that
all subcommittees prepare minutes of all meetings and make those
minutes available to all members of the operating committee and the
advisory committee, and, with respect to any legal subcommittee, the
Revised New Consolidated Data Plan shall require that the minutes
include (i) attendance at the meeting; (ii) the subject matter of each
item discussed; (iii) sufficient non-privileged information to identify
the rationale for referring the matter to the legal subcommittee, and
(iv) the privilege or privileges claimed with respect to that
item.\105\
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    \105\ The Commission has added this new requirement for the
Revised New Consolidated Data Plan based on its reconsideration of
the comments received regarding the CT Plan that was previously
filed by the SROs. The Commission's rationale for this new
requirement is discussed above in Section II.B.4.
---------------------------------------------------------------------------

     The Revised New Consolidated Data Plan shall exclude from
the functions that may be delegated to a subcommittee of the operating
committee those administrative functions to be performed by the
independent Administrator.\106\
---------------------------------------------------------------------------

    \106\ The Commission has added this new requirement for the
Revised New Consolidated Data Plan based on its reconsideration of
the comments received regarding the CT Plan that was previously
filed by the SROs. The Commission's rationale for this new
requirement is discussed above in Section II.B.4.
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     To the extent that those provisions are in furtherance of
the purposes of the Revised New Consolidated Data Plan as expressed in
this Amended Order and not inconsistent with any other regulatory
requirements, the Revised New Consolidated Data Plan shall adopt and
include all other provisions of the Equity Data Plans necessary for the
operation and oversight of the SIPs under the Revised New Consolidated
Data Plan, and the Revised New Consolidated Data Plan should, to the
extent possible, attempt to harmonize and combine existing provisions
in the Equity Data Plans that relate to the Equity Data Plans' separate
processors.
* * * * *
    IT IS HEREBY ORDERED, pursuant to section 11A(a)(3)(B) of the
Act,\107\ that the Participants act jointly in developing and filing
with the Commission, as an NMS plan pursuant to Rule 608(a) of
Regulation NMS,\108\ a Revised New Consolidated Data Plan, as described
above. The Participants are ordered to file the Revised New
Consolidated Data Plan with the Commission no later than October 23,
2023.
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    \107\ 15 U.S.C. 78k-1(a)(3)(B).
    \108\ 17 CFR 242.608(a).

    By the Commission.
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-19311 Filed 9-6-23; 8:45 am]
BILLING CODE 8011-01-P