[Federal Register Volume 87, Number 161 (Monday, August 22, 2022)]
[Rules and Regulations]
[Pages 51259-51262]
[FR Doc No: 2022-17936]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2017-0096; FRL-10020-01-R9]

Approval of California Air Plan Revisions, Eastern Kern County
Air Pollution Control District and Imperial County Air Pollution
Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve revisions to the Eastern Kern Air Pollution Control
District (EKAPCD) and Imperial County Air Pollution Control District
(ICAPCD) portion of the California State Implementation Plan (SIP).
These revisions were submitted by the California Air Resources Board
(CARB) in response to EPA's June 12, 2015, finding of substantial
inadequacy and SIP call for certain provisions in the SIP related to
affirmative defenses applicable to excess emissions during startup,
shutdown, and malfunction (SSM) events. EPA is finalizing approval of
the SIP revisions because the Agency has determined that they are in
accordance with the requirements for SIP provisions under the Clean Air
Act (CAA or the Act) and correct deficiencies identified in the June
12, 2015 SIP call.

DATES: These rules will be effective on September 21, 2022.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2017-0096. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available through https://www.regulations.gov, or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional availability information. If you need assistance
in a language other than English or if you are a person with
disabilities who needs a reasonable accommodation at no cost to you,
please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section.

FOR FURTHER INFORMATION CONTACT: Christine Vineyard, EPA Region IX,
(415) 947-4125, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA.

Table of Contents

I. Background
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background

    On February 22, 2013, the EPA issued a Federal Register notice of
proposed rulemaking outlining EPA's policy at the time with respect to
SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP
provisions and explained how each one either did or did not comply with
the CAA with regard to excess emission events.\1\ For each SIP
provision that EPA determined to be inconsistent with the CAA, EPA
proposed to find that the existing SIP provision was substantially
inadequate to meet CAA requirements and thus proposed to issue a SIP
call under CAA section 110(k)(5). On September 17, 2014, EPA issued a
document supplementing and revising what the Agency had previously
proposed on February 22, 2013, in light of a D.C. Circuit decision that
determined the CAA precludes authority of the EPA to create affirmative
defense provisions applicable to private civil suits. EPA outlined its
updated policy that affirmative defense SIP provisions are not
consistent with CAA requirements. EPA proposed in the supplemental
proposal document to apply its revised interpretation of the CAA to
specific affirmative defense SIP provisions and proposed SIP calls for
those provisions where appropriate (79 FR 55920, September 17, 2014).
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    \1\ State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
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    On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized
``State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings
of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying
to Excess Emissions During Periods of Startup, Shutdown and
Malfunction,'' hereafter referred to as the ``2015 SSM SIP Action.''
\2\ The 2015 SSM SIP Action clarified, restated, and updated EPA's
interpretation that SSM exemptions and affirmative defense SIP
provisions are inconsistent with CAA requirements. The 2015 SSM SIP
Action found that certain SIP provisions in 36 states were
substantially inadequate to meet CAA requirements and issued a SIP call
to those states to submit SIP revisions to address the inadequacies.
The EPA established an 18-month deadline by which the affected states
had to submit such SIP revisions. States were required to submit
corrective revisions to their SIPs in response to the SIP calls by
November 22, 2016.
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    \2\ 80 FR 33839.
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    The EPA issued a Memorandum in October 2020 (2020 Memorandum),
which stated that certain provisions governing SSM periods in SIPs
could be viewed as consistent with CAA requirements.\3\ Importantly,
the 2020 Memorandum stated that it ``did not alter in any way the
determinations made in the 2015 SSM SIP Action that identified specific
state SIP provisions that were substantially inadequate to meet the
requirements of the Act.'' Accordingly, the 2020 Memorandum had no
direct impact on the SIP call issued to EKAPCD and ICAPCD in 2015. It
also did not alter the EPA's prior proposal from 2017 to approve the
EKAPCD and ICAPCD SIP revisions at issue in this action. The 2020
Memorandum did, however, indicate the EPA's intent at the time to
review SIP calls that were issued in the 2015

SSM SIP Action to determine whether the EPA should maintain, modify, or
withdraw particular SIP calls through future agency actions.
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    \3\ October 9, 2020, memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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    On September 30, 2021, EPA's Deputy Administrator withdrew the 2020
Memorandum and announced the EPA's return to the policy articulated in
the 2015 SSM SIP Action (2021 Memorandum).\4\ As articulated in the
2021 Memorandum, SIP provisions that contain exemptions or affirmative
defense provisions are not consistent with CAA requirements and,
therefore, generally are not approvable if contained in a SIP
submission. This policy approach is intended to ensure that all
communities and populations, including overburdened communities,
receive the full health and environmental protections provided by the
CAA.\5\ The 2021 Memorandum also retracted the prior statement from the
2020 Memorandum of EPA's plans to review and potentially modify or
withdraw particular SIP calls. That statement no longer reflects EPA's
intent. EPA intends to implement the principles laid out in the 2015
SSM SIP Action as the Agency takes action on SIP submissions, including
EKAPCD's and ICAPCD's SIP submittal, provided in response to the 2015
SIP call.
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    \4\ September 30, 2021, memorandum ``Withdrawal of the October
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions
in State Implementation Plans and Implementation of the Prior
Policy,'' from Janet McCabe, Deputy Administrator.
    \5\ 80 FR 33985.
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    With regards to EKAPCD and ICAPCD, the SIP call identified Rules
111 because the rules contained improper affirmative defenses for
excess emissions during startup, shutdown, and malfunction events. On
May 1, 2017 (82 FR 20295), the EPA proposed to approve removal of Rules
111 from the California SIP.

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            Local agency                Rule No.              Rule title             Rescinded       Submitted
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EKAPCD.............................             111  Equipment Breakdown........        11/10/16        12/06/16
ICAPCD.............................             111  Equipment Breakdown........        09/22/16        03/28/16
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    As discussed in the proposal, EPA proposed to approve the removal
of Rules 111 from the EKAPCD and ICAPCD portions of the California SIP
because such removal is consistent with CAA requirements and would
correct the deficiency identified by the Agency in the 2015 SSM SIP
Action. EKAPCD and ICAPCD are retaining the affirmative defenses solely
for state law purposes, outside of the EPA approved SIP. Removal of the
affirmative defenses from the SIP is also consistent with the EPA
policy for exclusion of ``state law only'' provisions from SIPs and
will serve to minimize any potential confusion about the
inapplicability of the affirmative defense provisions in Federal court
enforcement actions.

II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period.
EPA acknowledges that over four years have elapsed since the comment
period closed. No additional comment period is needed because nothing
in the intervening time period--including the issuance and subsequent
withdrawal of the 2020 Memorandum--changed the basis for EPA's proposed
action or the public's opportunity to view and comment on that basis.
Accordingly, the May 1, 2017 proposal provided the public with a full
opportunity to comment on the issues raised by the proposed action.
During this period, we received one comment. A summary of the comment
from the SSM Coalition (``commenter'') and EPA's response is provided
below.
    Comment: The commenter states that the approach EPA took in the SSM
SIP action is based on an improper view of EPA's SIP call authority, an
inappropriate view of the flexibility Congress gave states to develop
SIPs, an incorrect reading of the United States Court of Appeals for
the District of Columbia (D.C. Circuit) decision in Sierra Club v. EPA,
an incorrect reading of the definition of ``emission limitation and
emission standard'' in CAA section 302(k), and ``unreasonable or
insufficiently supported assumptions'' about SSM events and emissions
during SSM periods. The commenter notes that these objections to EPA's
approach were stated in detail in comments on the proposed SSM SIP
action and in briefs filed in the D.C. Circuit in consolidated
challenges to the SSM SIP action, which the commenter incorporates by
reference into its comment letter.
    Pointing to the various objections that the SSM Coalition and
others raised about the SSM SIP action, the commenter concludes that it
is inappropriate for the EPA to finalize its proposed approval of
EKAPCD's and ICAPCD's response to the SSM SIP call until litigation
before the D.C. Circuit is resolved. In support of this claim, the
commenter points to statements made in 2017 by the Trump Administration
about reviewing the underlying basis of the SSM SIP action and suggests
that EPA withdraw the proposed action on EKAPCD's and ICAPCD's Rules
111 because there may be a different rationale for EPA's position on
the California SIP revisions after review of the underlying legal and
policy issues by the D.C. Circuit and/or EPA.
    Response: The EPA respectfully disagrees with this comment. To the
extent that the commenter is incorporating by reference comments made
during the public comment period on the proposed SSM SIP action, we
point to our responses in the 2015 final rulemaking and note that the
comments were carefully considered before finalizing that action. The
comments on the proposed SSM SIP action do not alter the basis for our
proposed or final actions on the EKAPCD and ICAPCD submittals, which
are based on the 2015 SSM SIP final rulemaking.
    The Agency also acknowledges the commenter's concern that there
exist pending challenges to the 2015 SSM SIP action in the D.C.
Circuit. However, there is no requirement or expectation that EPA must
postpone action while awaiting a court decision. EKAPCD and ICAPCD have
submitted SIP revisions to the Agency that are fully approvable for the
reasons outlined in the 2017 proposal notice. As a result, EPA has
determined that it is appropriate to take action to approve the EKAPCD
and ICAPCD SIP revisions in accordance with applicable CAA
requirements. Under the CAA, the Administrator is required to approve a
SIP submission that complies with the provisions of the CAA and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). The
commenter has pointed to no new alleged deficiency or other aspect that
would lead the Agency to determine that the SIP revisions should be
disapproved or that full approval of the SIP revisions is not otherwise
appropriate.
    As we recently reaffirmed in the 2021 Memorandum, EPA is
implementing policy consistent with that outlined in the 2015 SSM SIP
Action. That policy aligns with previous court decisions,

including the D.C. Circuit's ruling in 2008, which found that inclusion
of SSM exemptions in section 112 standards is not allowed under the CAA
due to the generally applicable definition of emission limitations.\6\
Additionally, in 2014 the D.C. Circuit vacated a provision in EPA
regulations that allowed an affirmative defense if it met specific
criteria. The court stated that EPA lacked authority to create such a
defense because it would impermissibly encroach upon the authority of
Federal courts to find liability or impose remedies.\7\ It was in light
of the 2008 and 2014 court cases, as well as concerns about the public
health impacts of SSM, that led EPA in its 2015 action to clarify and
update its SSM policy to explain that automatic exemptions,
discretionary exemptions, overly broad enforcement discretion
provisions, and affirmative defense provisions like the ones at issue
in this action, will generally be viewed as inconsistent with CAA
requirements.
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    \6\ Sierra Club v. Johnson 551 F.3d 1019 (D.C. Cir. 2008).
    \7\ NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
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III. EPA Action

    No comments were submitted that change our assessment of the rules
as described in our proposed action. Therefore, as authorized in
section 110(k)(3) of the Act and for the reasons identified in the 2017
proposal, the EPA is fully approving the removal of these rules from
the EKAPCD and ICAPCD portions of the California SIP. The Agency's
final approval of this submission fully corrects the inadequacies in
the EKAPCD and ICAPCD portions of the California SIP that were
identified in the EPA's 2015 SSM SIP Action.

IV. Incorporation by Reference

    In this document, the EPA is amending regulatory text that includes
incorporation by reference. As described in section I of the preamble
and as set forth below in the amendments to 40 CFR part 52, EPA is
removing provisions from the Kern County and Imperial County portions
of the California State Implementation Plan, which is incorporated by
reference in accordance with the requirements of 1 CFR part 51. The EPA
has made and will continue to make the State Implementation Plan
generally available through www.regulations.gov and at the EPA Region 9
Office (please contact the person identified in the FOR FURTHER
INFORMATION CONTACT section of this preamble for more information).

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 21, 2022. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Nitrogen
oxides, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Volatile organic compounds.

    Dated: August 15, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart F--California

0
2. Section 52.220 is amended by adding paragraphs (c)(47)(iii)(C) and
(c)(74)(i)(C) to read as follows:

Sec.  52.220  Identification of plan-in part.

* * * * *
    (c) * * *
    (47) * * *
    (iii) * * *
    (C) Previously approved on October 24, 1980, in paragraph
(c)(47)(i)(A) of this section and now deleted without replacement Rule
111, ``Equipment Breakdown.''
* * * * *
    (74) * * *
    (i) * * *
    (C) Previously approved on January 27, 1981, in paragraph
(c)(74)(i)(A) of this section and now deleted without replacement Rule
111, ``Equipment Breakdown.''
* * * * *
[FR Doc. 2022-17936 Filed 8-19-22; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 86, Number 85 (Wednesday, May 5, 2021)]
[Notices]
[Pages 23954-23957]
[FR Doc No: 2021-09519]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket Nos. IC21-19-000, RD21-4-000]

Commission Information Collection Activities (FERC-725A); Comment
Request; Extension

AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION: Notice of information collection and request for comments.

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SUMMARY: In compliance with the requirements of the Paperwork Reduction
Act of 1995, the Federal Energy Regulatory Commission (Commission or
FERC) is soliciting public comment on the currently approved
information collection, FERC-725A (Mandatory Reliability Standards for
the Bulk-Power System). This notice includes the burden totals for
proposed Reliability Standard FAC-008-5.

DATES: Comments on the collection of information are due July 6, 2021.

ADDRESSES: You may submit copies of your comments (identified by Docket
No. IC21-19-000) by one of the following methods:
    Electronic filing through http://www.ferc.gov, is preferred.
     Electronic Filing: Documents must be filed in acceptable
native applications and print-to-PDF, but not in scanned or picture
format.
     For those unable to file electronically, comments may be
filed by USPS mail or by hand (including courier) delivery:
    [cir] Mail via U.S. Postal Service Only: Addressed to: Federal
Energy Regulatory Commission, Secretary of the Commission, 888 First
Street NE, Washington, DC 20426.
    [cir] Hand (Including Courier) Delivery: Deliver to: Federal Energy
Regulatory Commission, 12225 Wilkins Avenue, Rockville, MD 20852.
    Instructions: All submissions must be formatted and filed in
accordance with submission guidelines at: http://www.ferc.gov. For user
assistance, contact FERC Online Support by email at
<EMAIL_ADDRESS>or by phone at<PHONE_NUMBER> (toll-free).
    Docket: Users interested in receiving automatic notification of
activity in this docket or in viewing/downloading comments and
issuances in this docket may do so at http://www.ferc.gov.

FOR FURTHER INFORMATION CONTACT: Ellen Brown may be reached by email at
<EMAIL_ADDRESS>telephone at<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:
    Title: FERC-725A (Mandatory Reliability Standards for the Bulk-
Power System).
    OMB Control No.: 1902-0244.
    Type of Request: Three-year extension of the FERC-725A information
collection requirements with no changes to the current reporting
requirements.
    Abstract: On August 8, 2005, the Electricity Modernization Act of
2005, which is Title XII, Subtitle A, of the Energy Policy Act of 2005
(EPAct 2005), was enacted into law.\1\ EPAct 2005 added a new section
215 to the FPA, which requires a Commission-certified electric
reliability organization (ERO) (FERC-725) to develop mandatory and
enforceable Reliability Standards, which are subject to Commission
review and approval. Once approved, the Reliability Standards may be
enforced by the ERO, subject to Commission oversight or the Commission
can independently enforce Reliability Standards (FERC-725A).\2\
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    \1\ Energy Policy Act of 2005, Public Law 109-58, Title XII,
Subtitle A, 119 Stat. 594, 941 (2005), to be codified at 16 U.S.C.
824o.
    \2\ 16 U.S.C. 824o(e)(3).
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    On February 3, 2006, the Commission issued Order No. 672,
implementing section 215 of the FPA.\3\ Pursuant to Order No. 672, the
Commission certified one organization, NERC, as the ERO.\4\ The ERO is
required to develop Reliability Standards, which are subject to
Commission review and approval. The Reliability Standards will apply to
users, owners and operators of the Bulk-Power System, as set forth in
each Reliability Standard.
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    \3\ Rules Concerning Certification of the Electric Reliability
Organization; Procedures for the Establishment, Approval and
Enforcement of Electric Reliability Standards, Order No. 672, 71 FR
8662 (February 17, 2006), FERC Stats. & Regs. ] 31,204 (2006), order
on reh'g, Order No. 672-A, 71 FR 19814 (April 18, 2006), FERC Stats.
& Regs. ] 31,212 (2006).
    \4\ North American Electric Reliability Corp., 116 FERC ] 61,062
(ERO Certification Order), order on reh'g & compliance, 117 FERC ]
61,126 (ERO Rehearing Order) (2006), order on compliance, 118 FERC ]
61,030 (2007) (January 2007 Compliance Order).
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    On March 16, 2007, the Commission issued Order No. 693, a Final
Rule adding part 40, a new part, to the Commission's regulations. The
Final Rule states that this part applies to all users, owners and
operators of the Bulk-Power System within the United States (other than
Alaska or Hawaii). It also requires that each Reliability Standard
identify the subset of users, owners and operators to which that
particular Reliability Standard applies. The new regulations also
require that each Reliability Standard that is approved by the
Commission will be maintained on the ERO's internet website for public
inspection.
    In order that the Commission is able to perform its oversight
function with regard to Reliability Standards that are proposed by the
ERO and established by the Commission, it is essential that the
Commission receive timely information regarding all or potential
violations of Reliability Standards. While section 215 of the FPA
contemplates the filing of the record of an ERO or Regional Entity
enforcement action, FERC needs information regarding violations and
potential violations at or near the time of occurrence. Therefore, it
will work with the ERO and regional reliability organizations to be
able to use the electronic filing of information so the Commission
receives timely information. The new regulations also require that each
Reliability Standard that is approved by the Commission will be
maintained on the ERO's internet website for public inspection. In
accordance with section 39.5 of the Commission's regulations, the ERO
must file each Reliability Standard or a modification to a Reliability
Standard with the Commission. The filing is to include a concise
statement of the basis and purpose of the proposed Reliability
Standard, either a summary of the Reliability development proceedings
conducted by the ERO or a summary of the Reliability Standard
development proceedings conducted by a Regional Entity together with a
summary of the Reliability Standard review proceedings of the ERO and a
demonstration that the proposed Reliability Standard is ``just,
reasonable, not unduly discriminatory or preferential, and in the
public interest.

RD21-4 (FAC-008-05)

    The proposed information collection changes in Docket No. RD21-4-
000 relate to the proposed Reliability Standard FAC-008-05 (Facility
Ratings) developed by the North American Electric Reliability
Corporation (NERC), and submitted to the Commission for approval. The
Commission received NERC's petition to approve the proposed Reliability
Standards.
    On February 19, 2021, NERC filed a petition seeking approval of
proposed Reliability Standard FAC-008-5. NERC states that proposed
Reliability Standard FAC-008-5 reflects the retirement of Requirement
R7 of the currently effective standard. NERC notes that this proposal
was recommended following the first phase of work under the NERC
Standards Efficiency Review and that in its Order No. 873 remanding a
previously proposed version of the FAC-008 Reliability Standard, the
Commission agreed that the retirement of Requirement R7 from the
standard would not result in a reliability gap.

    In June 2019, following the conclusion of the standard development
process, NERC submitted a series of standard retirement proposals to
the Commission. Among the proposals, NERC submitted for Commission
approval proposed Reliability Standard FAC-008-4, in which NERC
proposed to retire Requirements R7 and R8 of currently effective
Reliability Standard FAC-008-3. In September 2020, the Commission
issued Order No. 873 regarding NERC's retirement proposals. In this
order, the Commission remanded proposed Reliability Standard FAC-008-4
to NERC for further consideration, citing concerns with the proposed
retirement of Requirement R8 of the currently effective standard. The
standard drafting team determined to develop a new version of the
Reliability Standard, proposed Reliability Standard FAC-008-5, in which
only Requirement R7 of the currently effective standard would be
proposed for retirement. Reliability Standard FAC-008-3 Requirement R7
requires Generator Owners and Transmission Owners to provide certain
information to requesting Reliability Coordinator(s), Planning
Coordinator(s), Transmission Planner(s), Transmission Owner(s), and
Transmission Operator(s) regarding their Facilities, as follows:
    R7. Each Generator Owner shall provide Facility Ratings (for its
solely and jointly owned Facilities that are existing Facilities, new
Facilities, modifications to existing Facilities and re-ratings of
existing Facilities) to its associated Reliability Coordinator(s),
Planning Coordinator(s), Transmission Planner(s), Transmission Owner(s)
and Transmission Operator(s) as scheduled by such requesting entities.
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    \5\ Burden is defined as the total time, effort, or financial
resources expended by persons to generate, maintain, retain, or
disclose or provide information to or for a Federal agency. For
further explanation of what is included in the information
collection burden, refer to 5 CFR part 1320.
    \6\ The Commission staff thinks that the average respondent for
this collection is similarly situated to the Commission, in terms of
salary plus benefits. Based on FERC's 2020 annual average of
$172,329 (for salary plus benefits), the average hourly cost is $83/
hour.
    \7\ The type of entity effect is the NERC registered GO =
Generator Owners (1,003). This reduction for 725A represent a
decrease in burden but the GOs still have other obligations, so the
1,003 is included for information purpose but does not affect the
overall number of entities in 725A.
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    In the years since Reliability Standard FAC-008-3 was developed,
NERC has developed other Reliability Standards that render the data
provision obligations of Requirement R7 redundant. Specifically,
Reliability Standards MOD-032-1, IRO-010-2, and TOP-003-3 contain
provisions to help ensure that the entities that have the
responsibility to plan and operate the Bulk Power System have the data
they need from Generator Owners and Transmission Owners for operations
and planning. Requirement R1 of Reliability Standard MOD-032-1--Data
for Power System Modeling and Analysis requires the Planning
Coordinator and Transmission Planner to develop modeling data
requirements and reporting procedures including the data listed in
Attachment 1 to the standard. This data would include information on
power capabilities and Facility Ratings. Requirement R2 requires the
Generator Owner and Transmission Owner to provide the requested
information. Requirement R1 of Reliability Standard IRO-010-2--
Reliability Coordinator Data Specification and Collection requires the
Reliability Coordinator to maintain a documented specification for the
data necessary to perform its Operational Planning Analyses, Real-time
monitoring, and Real-time Assessments. This data necessarily includes
Facility Ratings as inputs to System Operating Limit monitoring.
Requirement R3 requires the Transmission Owner and Generator Owner to
provide requested data. Similarly, Requirement R1 of Reliability
Standard TOP-003-3--Operational Reliability Data requires the
Transmission Operator to maintain a documented data specification
(Requirement R1) and for the Transmission Owner and Generator Owner to
provide the requested data (Requirement R5).
    Estimate of Annual Burden: \5\ The Commission estimates the burden
and cost \6\ for this information collection as follows.

             Proposed Changes to Burden Due to Docket No. RD20-4-000 Adjustments and Clarifications
----------------------------------------------------------------------------------------------------------------
                                 Number of      Annual number                    Average burden
   Reliability standard &      respondents &    of responses    Annual number       hrs. per       Total annual
        requirements           type of entity  per respondent   of  responses       response       burden hours
                              (1)............             (2)  (1) * (2) = (3)  (4)............  (3) * (4) = (5)
----------------------------------------------------------------------------------------------------------------
                           RD21-4 Net Changes to FERC-725A, OMB Control No. 1902-0244
----------------------------------------------------------------------------------------------------------------
FAC-008-05 (Facility          1,003 (No                     1  1,003 (No        -10 hrs.         -10,030 hrs.
 Ratings) \7\.                 Change).                         Change).         (Reduction).     (Reduction).
----------------------------------------------------------------------------------------------------------------

IC21-19-000 Renewal of 725A

    The following table represents the current burden associated with
all Mandatory Reliability Standards that fall under FERC-725A.

----------------------------------------------------------------------------------------------------------------
                                                   Number of                     Average number
    Reliability standard &        Number of         annual      Total number of     of burden      Total burden
         requirement              entity \8\     responses per     responses        hours per         hours
                                                    entity                          response
                               (1)............             (2)  (1) * (2) = (3)             (4)  (3) * (4) = (5)
----------------------------------------------------------------------------------------------------------------
                                                    FERC-725A
----------------------------------------------------------------------------------------------------------------
Mandatory Reliability          (3,420)........               1  3,420..........          428.86  1,466,716 hrs.
 Standards for Bulk Power
 System.
RD21-4 Net Changes...........  1,003 (No                     1  1,003 (No                   -10  -10,030 hrs.
                                change).                         Change).                         (Reduction).
                              ----------------------------------------------------------------------------------
    Total for FERC-725A......  ...............  ..............  ...............  ..............  1,456,686 hrs.
----------------------------------------------------------------------------------------------------------------

    Note: FAC-008-05 is a part of the Bulk Power System burden totals.
The net changes for the responses and hours will affect the totals for
the row stated ``Mandatory Reliability Standards for Bulk Power
System''.
---------------------------------------------------------------------------

    \8\ This is a list of NERC registered entities who under 725A
need to follow the NERC Standards. BA = Balancing Authority (99); DP
= Distribution Provider (373); GP = Generator Owner (1,003);
Generator Operator (937); PA PC Planning Authority Planning
Coordinator (65); RC = Reliability Coordinator (11); RP = Resource
Planner (160); RSG = Reserve Sharing Group (11); FRSG = Frequency
Response Sharing Group (1); TO = Transmission Owner (321); TOP =
Transmission Operator (167); TP = Transmission Provided (201); TSP =
Transmission Service Provider (71); for a sum total of (3,420). The
same entity may have multiple registration obligation to follow
under 725A so an individual entity's obligation increases based on
registration functions. These values were derived from the NERC
Compliance data of February 5, 2021 using only unique United States
registered entities.
---------------------------------------------------------------------------

    Comments: Comments are invited on: (1) Whether the collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information will have practical
utility; (2) the accuracy of the agency's estimate of the burden and
cost of the collection of information, including the validity of the
methodology and assumptions used; (3) ways to enhance the quality,
utility and clarity of the information collection; and (4) ways to
minimize the burden of the collection of information on those who are
to respond, including the use of automated collection techniques or
other forms of information technology.

    Dated: April 29, 2021.
Kimberly D. Bose,
Secretary.

[FR Doc. 2021-09519 Filed 5-4-21; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 86, Number 34 (Tuesday, February 23, 2021)]
[Notices]
[Pages 11033-11040]
[FR Doc No: 2021-03549]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-91145; File No. SR-EMERALD-2021-05]

Self-Regulatory Organizations; MIAX Emerald, LLC; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend
Its Fee Schedule To Establish Market Data Fees

February 17, 2021.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on February 4, 2021, MIAX Emerald, LLC (``MIAX Emerald'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange is filing a proposal to amend the MIAX Emerald Fee
Schedule (the ``Fee Schedule'') to establish market data fees.
    The text of the proposed rule change is available on the Exchange's
website at http://www.miaxoptions.com/rule-filings/emerald, at MIAX's
principal office, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend the Fee Schedule to establish market
data fees. MIAX Emerald commenced operations as a national securities
exchange registered under Section 6 of the Act \3\ on March 1, 2019.\4\
The Exchange adopted its transaction fees and certain of its non-
transaction fees in its filing SR-EMERALD-2019-15.\5\ In that filing,
the Exchange expressly waived, among others, market data fees to
provide an incentive to prospective market participants to become
Members \6\ of the Exchange. At that time, the Exchange waived market
data fees for the Waiver Period \7\ and stated that it would provide
notice to market participants when the Exchange intended to terminate
the Waiver Period.
---------------------------------------------------------------------------

    \3\ 15 U.S.C. 78f.
    \4\ See Securities Exchange Act Release No. 84891 (December 20,
2018), 83 FR 67421 (December 28, 2018) (File No. 10-233) (order
approving application of MIAX Emerald, LLC for registration as a
national securities exchange).
    \5\ See Securities Exchange Act Release No. 85393 (March 21,
2019), 84 FR 11599 (March 27, 2019) (SR-EMERALD-2019-15) (Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To
Establish the MIAX Emerald Fee Schedule).
    \6\ ``Member'' means an individual or organization approved to
exercise the trading rights associated with a Trading Permit.
Members are deemed ``members'' under the Exchange Act. See Exchange
Rule 100 and the Definitions Section of the Fee Schedule.
    \7\ ``Waiver Period'' means, for each applicable fee, the period
of time from the initial effective date of the MIAX Emerald Fee
Schedule until such time that the Exchange has an effective fee
filing establishing the applicable fee. The Exchange will issue a
Regulatory Circular announcing the establishment of an applicable
fee that was subject to a Waiver Period at least fifteen (15) days
prior to the termination of the Waiver Period and effective date of
any such applicable fee. See the Definitions Section of the Fee
Schedule.
---------------------------------------------------------------------------

    On September 15, 2020, the Exchange issued a Regulatory Circular
which announced, among other things, that the Exchange would be ending
the Waiver Period for market data fees, beginning October 1, 2020.\8\
---------------------------------------------------------------------------

    \8\ See MIAX Emerald Regulatory Circular 2020-41 available at
https://www.miaxoptions.com/sites/default/files/circular-files/MIAX_Emerald_RC_2020_41.pdf.
---------------------------------------------------------------------------

    On October 1, 2020, the Exchange filed its proposal to assess fees
for its market data products, MIAX Emerald Top of Market (``ToM''),
Administrative Information Subscriber (``AIS'') feed, and MIAX Order
Feed (``MOR'').\9\ On October 14, 2020, the Exchange withdrew the First
Proposed Rule Change and refiled its proposal in order to provide more
description regarding the difference in pricing for internal
distributors and external distributors.\10\
---------------------------------------------------------------------------

    \9\ See SR-EMERALD-2020-10 (the ``First Proposed Rule Change'').
    \10\ See Securities Exchange Act Release No. 90274 (October 27,
2020), 85 FR 69371 (November 2, 2020) (SR-EMERALD-2020-13) (Notice
of Filing and Immediate Effectiveness of a Proposed Rule Change To
Amend Its Fee Schedule To Establish Market Data Fees) (the ``Second
Proposed Rule Change'').
---------------------------------------------------------------------------

    On November 25, 2020, the Exchange withdrew the Second Proposed
Rule Change \11\ and refiled its proposal to assess fees for its ToM,
AIS and MOR products in order to provide additional information.\12\ On
January 22, 2021, the Exchange withdrew the Third Proposed Rule Change
\13\ and refiled its proposal in order to provide a cost-based
justification for its market data fees.\14\ On February 4, 2021, the
Exchange withdrew the Fourth Proposed Rule Change and refiled this
proposal.
---------------------------------------------------------------------------

    \11\ See Comment Letter from Joseph W. Ferraro III, SVP, Deputy
General Counsel, the Exchange, dated November 20, 2020, notifying
the Commission that the Exchange will withdraw the Second Proposed
Rule Change.
    \12\ See Securities Exchange Act Release No. 90612 (December 9,
2020), 85 FR 81242 (December 15, 2020) (SR-EMERALD-2020-16) (the
``Third Proposed Rule Change'').
    \13\ See Comment Letter from Joseph W. Ferraro III, SVP, Deputy
General Counsel, the Exchange, dated January 19, 2021, notifying the
Commission that the Exchange will withdraw the Third Proposed Rule
Change.
    \14\ See SR-EMERALD-2021-04 (the ``Fourth Proposed Rule
Change'').
---------------------------------------------------------------------------

    A more detailed description of the ToM, AIS and MOR products can be

found in the Exchange's previously filed Market Data Product
filings.\15\ The Exchange notes that it will not be assessing fees for
Complex Top of Market (``cToM'') \16\ data at this time.
---------------------------------------------------------------------------

    \15\ See Securities Exchange Act Release No. 85207 (February 27,
2019), 84 FR 7963 (March 5, 2019) (SR-EMERALD-2019-09) (Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change to
Establish MIAX Emerald Top of Market (``ToM'') Data Feed, MIAX
Emerald Complex Top of Market (``cToM'') Data Feed, MIAX Emerald
Administrative Information Subscriber (``AIS'') Data Feed, and MIAX
Emerald Order Feed (``MOR'')).
    \16\ cToM provides subscribers with the same information as the
ToM market data product as it relates to the strategy book, i.e.,
the Exchange's best bid and offer for a complex strategy, with
aggregate size, based on displayable order and quoting interest in
the complex strategy on the Exchange. cToM also provides subscribers
with the identification of the complex strategies currently trading
on MIAX Emerald; complex strategy last sale information; and the
status of securities underlying the complex strategy (e.g., halted,
open, or resumed). cToM is distinct from ToM, and anyone wishing to
receive cToM data must subscribe to cToM regardless of whether they
are a current ToM subscriber. ToM subscribers are not required to
subscribe to cToM, and cToM subscribers are not required to
subscribe to ToM. See id.
---------------------------------------------------------------------------

    To summarize, ToM provides market participants with a direct data
feed that includes the Exchange's best bid and offer, with aggregate
size, and last sale information, based on displayable order and quoting
interest on the Exchange. The ToM data feed includes data that is
identical to the data sent to the processor for the Options Price
Reporting Authority (``OPRA''). ToM also contains a feature that
provides the number of Priority Customer \17\ contracts that are
included in the size associated with the Exchange's best bid and offer.
---------------------------------------------------------------------------

    \17\ The term ``Priority Customer'' means a person or entity
that (i) is not a broker or dealer in securities, and (ii) does not
place more than 390 orders in listed options per day on average
during a calendar month for its own beneficial account(s). The
number of orders shall be counted in accordance with Interpretation
and Policy .01 to Exchange Rule 100. See Exchange Rule 100.
---------------------------------------------------------------------------

    AIS provides market participants with a direct data feed that
allows subscribers to receive real-time updates of products traded on
MIAX Emerald, trading status for MIAX Emerald and products traded on
MIAX Emerald, and liquidity seeking event notifications. The AIS market
data feed includes opening imbalance condition information, opening
routing information, expanded quote range information, post-halt
notifications, and liquidity refresh condition information. AIS real-
time messages are disseminated over multicast to achieve a fair
delivery mechanism. AIS notifications provide current electronic system
status allowing subscribers to take necessary actions immediately.
    MOR provides market participants with a direct data feed that
allows subscribers to receive real-time updates of options orders,
products traded on MIAX Emerald, MIAX Emerald Options System status,
and MIAX Emerald Options Underlying trading status. Subscribers to the
data feed will get a list of all options symbols and strategies that
will be traded and sourced on that feed at the start of every session.
    The Exchange proposes to charge monthly fees to Distributors
(defined below) of the ToM, AIS, and MOR market data products. MIAX
Emerald will assess market data fees applicable to the market data
products on Internal and External Distributors in each month the
Distributor is credentialed to use the applicable market data product
in the production environment. A ``Distributor'' of MIAX Emerald data
is any entity that receives a feed or file of data either directly from
MIAX Emerald or indirectly through another entity and then distributes
it either internally (within that entity) or externally (outside that
entity). All Distributors are required to execute a MIAX Emerald
Distributor Agreement. Market data fees for ToM, AIS, and MOR will be
reduced for new Distributors for the first month during which they
subscribe to the applicable market data product, based on the number of
trading days that have been held during the month prior to the date on
which they have been credentialed to use the applicable market data
product in the production environment. Such new Distributors will be
assessed a pro-rata percentage of the fees described above, which is
the percentage of the number of trading days remaining in the affected
calendar month as of the date on which they have been credentialed to
use the applicable market data product in the production environment,
divided by the total number of trading days in the affected calendar
month.
    Specifically, the Exchange proposes to assess Internal Distributors
$1,250 per month and External Distributors $1,750 per month for the ToM
market data feed. The Exchange proposes to assess Internal Distributors
$1,250 per month and External Distributors $1,750 per month for the AIS
market data feed. The Exchange proposes to assess Internal Distributors
$3,000 per month and External Distributors $3,500 per month for the MOR
market data feed. The Exchange notes that its data feed prices are
generally lower than other options exchanges' data feed prices for
their comparable data feed products.\18\
---------------------------------------------------------------------------

    \18\ See Nasdaq PHLX LLC Pricing Schedule, Options 7, Section
10, Proprietary Data Feed Fees; Cboe BZX Exchange, Inc. Fee
Schedule, Market Data Fees; Cboe Data Services, LLC, Fee Schedule.
---------------------------------------------------------------------------

* * * * *
    MIAX Emerald believes that exchanges, in setting fees of all types,
should meet very high standards of transparency to demonstrate why each
new fee or fee increase meets the requirements of the Act that fees be
reasonable, equitably allocated, not unfairly discriminatory, and not
create an undue burden on competition among members and markets. MIAX
Emerald believes this high standard is especially important when an
exchange sets certain non-transaction fees, including market data fees.
The Exchange believes that it is important to demonstrate that these
fees are based on its costs to provide these products and reasonable
business needs. Accordingly, the Exchange believes the proposed fees
will allow the Exchange to offset expense the Exchange has and will
incur, and that the Exchange is providing sufficient transparency (as
described below) into how the Exchange determined to charge such fees.
Accordingly, the Exchange is providing an analysis of its revenues,
costs, and profitability associated with the proposed fees. This
analysis includes information regarding its methodology for determining
the costs and revenues associated with the proposed fees.
    In order to determine the Exchange's costs associated with
providing the proposed fees, the Exchange conducted an extensive cost
review in which the Exchange analyzed every expense item in the
Exchange's general expense ledger to determine whether each such
expense relates to the proposed fees, and, if such expense did so
relate, what portion (or percentage) of such expense actually supports
the services included in the proposed fees. The sum of all such
portions of expenses represents the total cost of the Exchange to
provide the proposed fees. For the avoidance of doubt, no expense
amount was allocated twice. The Exchange is also providing detailed
information regarding the Exchange's cost allocation methodology--
namely, information that explains the Exchange's rationale for
determining that it was reasonable to allocate certain expenses
described in this filing towards the total cost to the Exchange to
provide the proposed fees.
    In order to determine the Exchange's projected revenues associated
with providing the proposed fees, the Exchange analyzed the number of
Members and non-Members currently utilizing the Exchange's services
associated with the proposed fees, and, utilizing a recent monthly
billing cycle representative of 2020 monthly revenue,

extrapolated annualized revenue on a going-forward basis. The Exchange
does not believe it is appropriate to factor into its analysis future
revenue growth or decline into its projections for purposes of these
calculations, given the uncertainty of such projections due to the
continually changing market data needs of market participants, market
participant consolidation, etc. Additionally, the Exchange similarly
does not factor into its analysis future cost growth or decline.
    The Exchange is presenting its revenue and expense associated with
the proposed fees in this filing in a manner that is consistent with
how the Exchange presents its revenue and expense in its Audited
Unconsolidated Financial Statements. The Exchange's most recent Audited
Unconsolidated Financial Statement is for 2019. However, since the
revenue and expense associated with the proposed fees were not in place
in 2019 or for the first three quarters of 2020, the Exchange believes
its 2019 Audited Unconsolidated Financial Statement is not useful for
analyzing the reasonableness of the total annual revenue and costs
associated with the proposed fees. Accordingly, the Exchange believes
it is more appropriate to analyze the proposed fees utilizing its 2020
revenue and costs, as described herein, which utilize the same
presentation methodology as set forth in the Exchange's previously-
issued Audited Unconsolidated Financial Statements. Based on this
analysis, the Exchange believes that the proposed fees are fair and
reasonable because they will not result in excessive pricing or supra-
competitive profit when comparing the Exchange's total annual expense
associated with providing the services associated with the proposed
fees versus the total projected annual revenue the Exchange will
collect for providing those services.
* * * * *
    On March 29, 2019, the Commission issued its Order Disapproving
Proposed Rule Changes to Amend the Fee Schedule on the BOX Market LLC
Options Facility to Establish BOX Connectivity Fees for Participants
and Non-Participants Who Connect to the BOX Network (the ``BOX
Order'').\19\ On May 21, 2019, the Commission issued the Staff Guidance
on SRO Rule Filings Relating to Fees.\20\ Accordingly, the Exchange
believes that the proposed fees are consistent with the Act because
they (i) are reasonable, equitably allocated, not unfairly
discriminatory, and not an undue burden on competition; (ii) comply
with the BOX Order and the Guidance; (iii) are supported by evidence
(including comprehensive revenue and cost data and analysis) that they
are fair and reasonable because they do not result in excessive pricing
or supra-competitive profit; and (iv) utilize a cost-based
justification framework. Accordingly, the Exchange believes that the
Commission should find that the proposed fees are consistent with the
Act.
---------------------------------------------------------------------------

    \19\ See Securities Exchange Act Release No. 85459 (March 29,
2019), 84 FR 13363 (April 4, 2019) (SR-BOX-2018-24, SR-BOX-2018-37,
and SR-BOX-2019-04).
    \20\ See Staff Guidance on SRO Rule Filings Relating to Fees
(May 21, 2019), at https://www.sec.gov/tm/staff-guidance-sro-rule-filings-fees (the ``Guidance'').
---------------------------------------------------------------------------

    The proposed rule change is immediately effective upon filing with
the Commission pursuant to Section 19(b)(3)(A) of the Act.
2. Statutory Basis
    The Exchange believes that its proposal to amend its Fee Schedule
is consistent with Section 6(b) of the Act \21\ in general, and
furthers the objectives of Section 6(b)(4) of the Act \22\ in
particular, in that it is an equitable allocation of reasonable dues,
fees and other charges among its members and issuers and other persons
using its facilities. The Exchange also believes the proposal furthers
the objectives of Section 6(b)(5) of the Act in that it is designed to
promote just and equitable principles of trade, to remove impediments
to and perfect the mechanism of a free and open market and a national
market system, and, in general to protect investors and the public
interest and is not designed to permit unfair discrimination between
customers, issuers, brokers and dealers.
---------------------------------------------------------------------------

    \21\ 15 U.S.C. 78f(b).
    \22\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------

    Separately, the Exchange is not aware of any reason why market
participants could not simply drop their market data subscriptions to
an exchange (or not subscribe to market data feeds of an exchange) if
an exchange were to establish prices for its market data fees that, in
the determination of such market participant, did not make business or
economic sense for such market participant. No options market
participant is required by rule or regulation to subscribe to market
data feeds of an options exchange. As evidence of the fact that market
participants can and do unsubscribe from an exchange's market data
feeds based on pricing, the Exchange notes that, since it issued its
notice for the proposed fees, one Member terminated its market data
feed subscriptions as a result of the proposed fees. Accordingly, this
example shows that if an exchange sets too high of a fee for its market
data products, market participants can choose to not purchase market
data or simply unsubscribe from an exchange's market data feeds.
    The Exchange believes that its proposal is consistent with Section
6(b)(4) of the Act because the proposed fees will not result in
excessive or supra-competitive profit. The costs associated with
providing market data to Exchange Members and non-Members, as well as
the general expansion of a state-of-the-art infrastructure, are
extensive, have increased year-over-year, and are projected to increase
year-over-year in the future. In particular, the Exchange has
experienced a material increase in its costs in 2020, in connection
with a project to make its network environment more transparent and
deterministic, based on customer demand. This project will allow the
Exchange to enhance its network architecture with the intent of
ensuring a best-in-class, transparent and deterministic trading system
while maintaining its industry leading latency and throughput
capabilities. In order to provide this greater amount of transparency
and higher determinism, MIAX Emerald has made significant capital
expenditures (``CapEx''), incurred increased ongoing operational
expenditures (``OpEx''), and undertaken additional engineering research
and development (``R&D'') in the following areas: (i) Implementing an
improved network design to ensure the minimum latency between multicast
market data signals disseminated by the Exchange across the extranet
switches, improving the unicast jitter profile to reduce the occurrence
of message sequence inversions from Members to the Exchange quoting
gateway processors, and introducing a new optical fiber network
infrastructure that ensures the optical fiber path for participants
within extremely tight tolerances; (ii) introducing a re-architected
and engineered participant quoting gateway that ensures the delivery of
messages to the match engine with absolute determinism, eliminating the
message processing inversions that can occur with messages received
nanoseconds apart; and (iii) designing an improved monitoring platform
to better measure the performance of the network and systems at
extremely tight tolerances and to provide Members with reporting on the
performance of their systems. The CapEx associated with only phase

1 of this project in 2020 was approximately $1.85 million. This expense
does not include the significant increase in employee time and other
resources necessary to maintain and service this network, which expense
is captured in the operating expense discussed below. This project,
which results in a material increase in expense of the Exchange, is,
among other things, intended to enhance the overall trading experience
at the Exchange, making it a venue that market participants want to
access, thereby creating greater value in the Exchange's market data
products.
    The Exchange believes that it is reasonable, equitable and not
unfairly discriminatory to assess internal distributors fees that are
less than the fees assessed for external distributors for subscriptions
to the Exchange's ToM, AIS and MOR data feeds because internal
distributors have limited, restricted usage rights to the market data,
as compared to external distributors which have more expansive usage
rights. All Members and non-Members that determine to receive any
market data feed of the Exchange (or its affiliates, MIAX and MIAX
PEARL), must first execute, among other things, the MIAX Exchange Group
Exchange Data Agreement (the ``Exchange Data Agreement'').\23\ Pursuant
to the Exchange Data Agreement, Internal Distributors are restricted to
the ``internal use'' of any market data they receive. This means that
Internal Distributors may only distribute the Exchange's market data to
the recipient's officers and employees and its affiliates.\24\ External
Distributors may distribute the Exchange's market data to persons who
are not officers, employees or affiliates of the external
distributor,\25\ and may charge their own fees for the distribution of
such market data. Accordingly, the Exchange believes it is fair,
reasonable and not unfairly discriminatory to assess External
Distributors a higher fee for the Exchange's market data products as
External Distributors have greater usage rights to commercialize such
market data. It also costs the Exchange more to support External
Distributors versus internal distributors, as External Distributors
have reporting and monitoring obligations that Internal Distributors do
not have, thus requiring additional time and effort of Exchange staff.
The Exchange believes the proposed fees are a reasonable allocation of
its costs and expenses among its Members and other persons using its
facilities since it is recovering the costs associated with
distributing such data. Access to the Exchange is provided on fair and
non-discriminatory terms. The Exchange believes the proposed fees are
equitable and not unfairly discriminatory because the fee level results
in a reasonable and equitable allocation of fees amongst users for
similar services. Moreover, the decision as to whether or not to
purchase market data is entirely optional to all users. Potential
purchasers are not required to purchase the market data, and the
Exchange is not required to make the market data available. Purchasers
may request the data at any time or may decline to purchase such data.
The allocation of fees among users is fair and reasonable because, if
the market deems the proposed fees to be unfair or inequitable, firms
can diminish or discontinue their use of this data.
---------------------------------------------------------------------------

    \23\ See Exchange Data Agreement, available at https://miaxweb2.pairsite.com/sites/default/files/page-files/MIAX_Exchange_Group_Data_Agreement_09032020.pdf.
    \24\ See id.
    \25\ See id.
---------------------------------------------------------------------------

    The Exchange only has four primary sources of revenue: Transaction
fees, access fees, regulatory fees, and market data fees. Accordingly,
the Exchange must cover all of its expenses from these four primary
sources of revenue.
    The Exchange believes that the proposed fees are fair and
reasonable because they will not result in excessive pricing or supra-
competitive profit, when comparing the total annual expense that the
Exchange projects to incur in connection with providing these products
versus the total annual revenue that the Exchange projects to collect
in connection with the proposed market data fees. For 2020,\26\ the
total annual expense for providing the market data products associated
with the proposed fees for MIAX Emerald is projected to be
approximately $1,040,064. The $1,040,064 in projected total annual
expense is comprised of the following, all of which are directly
related to providing the market data products associated with the
proposed fees: (1) Third-party expense, relating to fees paid by MIAX
Emerald to third-parties for certain products and services; and (2)
internal expense, relating to the internal costs of MIAX Emerald to
provide the market data products associated with the proposed fees.
---------------------------------------------------------------------------

    \26\ The Exchange has not yet finalized its 2020 year end
results.
---------------------------------------------------------------------------

    The Exchange notes that the MIAX Emerald architecture takes
advantage of an advance in design to eliminate the need for a market
data distribution gateway layer. The computation and dissemination via
an application program interface (``API'') is done solely within the
match engine environment and is then delivered via the Member and non-
Member connectivity infrastructure. This architecture delivers a market
data distribution system that is more efficient both in cost and
performance. Earlier implementations like those implemented for the
Exchange's affiliates, Miami International Securities Exchange, LLC
(``MIAX'') and MIAX PEARL, LLC (``MIAX PEARL''), require an additional
server hardware level and network infrastructure making them more
expensive to deploy, operate and maintain. All capital and operational
expenses to support market data generation are a percentage of the
total cost to support the MIAX Emerald match engines (both in capital
and operational expense). The Exchange believes that 10% of the
functionality and support infrastructure is required to support the
computation and dissemination of market data at the match engine layer,
which serves as the basis for its cost allocation for market data
products. Approximately 10% of the Exchange staff are required to
support market data and fall under two categories: (1) The technical
development, maintenance, operation and administration of market data
computation and delivery; and (2) non-technical administration
including managing market data agreements and the auditing and tracking
of member and non-member market data usage.
    As noted above, the Exchange believes it is more appropriate to
analyze the proposed fees utilizing its 2020 revenue and costs, which
utilize the same presentation methodology as set forth in the
Exchange's previously-issued Audited Unconsolidated Financial
Statements.\27\ The $1,040,064 in projected total annual expense is
directly related to providing the market data products associated with
the proposed fees, and not any other product or service offered by the
Exchange. No expense amount was allocated twice.
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    \27\ For example, the Exchange previously noted that all third-
party expense described in its prior fee filing was contained in the
information technology and communication costs line item under the
section titled ``Operating Expenses Incurred Directly or Allocated
From Parent,'' in the Exchange's 2019 Form 1 Amendment containing
its financial statements for 2018. See Securities Exchange Act
Release No. 87877 (December 31, 2019), 85 FR 738 (January 7, 2020)
(SR-EMERALD-2019-39). Accordingly, the third-part expense described
in this filing is attributed to the same line item for the
Exchange's 2020 Form 1 Amendment, which will be filed in 2021.
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    As discussed, the Exchange conducted an extensive cost review in

which the Exchange analyzed every expense item in the Exchange's
general expense ledger (this includes over 150 separate and distinct
expense items) to determine whether each such expense relates to
providing the market data products associated with the proposed fees,
and, if such expense did so relate, what portion (or percentage) of
such expense actually supports those products, and thus bears a
relationship that is, ``in nature and closeness,'' directly related to
those products. The sum of all such portions of expenses represents the
total cost of the Exchange to provide the market data products
associated with the proposed fees.
    For 2020, total third-party expense, relating to fees paid by MIAX
Emerald to third-parties for certain products and services for the
Exchange to be able to provide the market data products associated with
the proposed fees, is projected to be $19,105. This includes, but is
not limited to, a portion of the fees paid to: (1) Equinix, for data
center services, for the primary, secondary, and disaster recovery
locations of the MIAX Emerald trading system infrastructure; (2) Zayo
Group Holdings, Inc. (``Zayo'') for network services (fiber and
bandwidth products and services) linking MIAX Emerald's office
locations in Princeton, NJ and Miami, FL to all data center locations;
(3) Secure Financial Transaction Infrastructure (``SFTI''),\28\ which
supports connectivity and feeds for the entire U.S. options industry;
(4) various other services providers (including Thompson Reuters, NYSE,
Nasdaq, and Internap), which provide content, connectivity services,
and infrastructure services for critical components of options
connectivity and network services; and (5) various other hardware and
software providers (including Dell and Cisco, which support the
production environment in which Members connect to the network to
trade, receive market data, etc.).
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    \28\ In fact, on October 22, 2019, the Exchange was notified by
SFTI that it is again raising its fees charged to the Exchange by
approximately 11%, without having to show that such fee change
complies with the Act by being reasonable, equitably allocated, and
not unfairly discriminatory. It is unfathomable to the Exchange
that, given the critical nature of the infrastructure services
provided by SFTI, that its fees are not required to be rule-filed
with the Commission pursuant to Section 19(b)(1) of the Act and Rule
19b-4 thereunder. See 15 U.S.C. 78s(b)(1) and 17 CFR 240.19b-4,
respectively.
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    For clarity, only a portion of all fees paid to such third-parties
is included in the third-party expense herein, and no expense amount is
allocated twice. Accordingly, MIAX Emerald does not allocate its entire
information technology and communication costs to providing the market
data products associated with the proposed fees.
    The Exchange believes it is reasonable to allocate such third-party
expense described above towards the total cost to the Exchange to
provide the market data products associated with the proposed fees. In
particular, the Exchange believes it is reasonable to allocate the
identified portion of the Equinix expense because Equinix operates the
data centers (primary, secondary, and disaster recovery) that host the
Exchange's network infrastructure. This includes, among other things,
the necessary storage space, which continues to expand and increase in
cost, power to operate the network infrastructure, and cooling
apparatuses to ensure the Exchange's network infrastructure maintains
stability. Without these services from Equinix, the Exchange would not
be able to operate and support the network and provide the market data
products associated with the proposed fees to its Members and their
customers. The Exchange did not allocate all of the Equinix expense
toward the cost of providing the market data products associated with
the proposed fees, only that portion which the Exchange identified as
being specifically mapped to providing the market data products
associated with the proposed fees, approximately 1% of the total
Equinix expense. The Exchange believes this allocation is reasonable
because it represents the Exchange's actual cost to provide the market
data products associated with the proposed fees, and not any other
product or service, as supported by its cost review.
    The Exchange believes it is reasonable to allocate the identified
portion of the Zayo expense because Zayo provides the internet, fiber
and bandwidth connections with respect to the network, linking MIAX
Emerald with its affiliates, MIAX and MIAX PEARL, as well as the data
center and disaster recovery locations. As such, all of the trade data,
including the billions of messages each day per exchange, flow through
Zayo's infrastructure over the Exchange's network. Without these
services from Zayo, the Exchange would not be able to operate and
support the network and provide the market data products associated
with the proposed fees. The Exchange did not allocate all of the Zayo
expense toward the cost of providing the market data products
associated with the proposed fees, only the portion which the Exchange
identified as being specifically mapped to providing the market data
products associated with the proposed fees, approximately 1% of the
total Zayo expense. The Exchange believes this allocation is reasonable
because it represents the Exchange's actual cost to provide the market
data products associated with the proposed fees, and not any other
product or service, as supported by its cost review.
    The Exchange did not allocate any expense associated with the
proposed fees towards SFTI and various other service providers'
(including Thompson Reuters, NYSE, Nasdaq, and Internap) because, as
described above, the MIAX Emerald architecture takes advantage of an
advance in design to eliminate the need for a market data distribution
gateway layer. The computation and dissemination via an API is done
solely within the match engine environment and is then delivered via
the member and non-member connectivity infrastructure. This
architecture delivers a market data system that is more efficient both
in cost and performance. Accordingly, the Exchange determined not to
allocate any expense associated with SFTI and various other service
providers.
    The Exchange believes it is reasonable to allocate the identified
portion of the other hardware and software provider expense because
this includes costs for dedicated hardware licenses for switches and
servers, as well as dedicated software licenses for security monitoring
and reporting across the network. Without this hardware and software,
the Exchange would not be able to operate and support the network and
provide the market data products. The Exchange did not allocate all of
the hardware and software provider expense toward the cost of providing
the market data products associated with the proposed fees, only the
portions which the Exchange identified as being specifically mapped to
providing the market data products associated with the proposed fees,
approximately 1% of the total hardware and software provider expense.
The Exchange believes this allocation is reasonable because it
represents the Exchange's actual cost to provide the market data
products associated with the proposed fees.
    For 2020, total projected internal expense, relating to the
internal costs of MIAX Emerald to provide the market data products
associated with the proposed fees, is projected to be $1,020,959. This
includes, but is not limited to, costs associated with: (1) Employee
compensation and benefits for full-time employees that support the
market data products associated with the proposed fees, including staff
in network operations, trading operations, development, system
operations,

business, as well as staff in general corporate departments (such as
legal, regulatory, and finance) that support those employees and
functions (including an increase as a result of the higher determinism
project); (2) depreciation and amortization of hardware and software
used to provide the market data products associated with the proposed
fees, including equipment, servers, cabling, purchased software and
internally developed software used in the production environment to
support the network for trading; and (3) occupancy costs for leased
office space for staff that provide the market data products associated
with the proposed fees. The breakdown of these costs is more fully-
described below. For clarity, only a portion of all such internal
expenses are included in the internal expense herein, and no expense
amount is allocated twice. Accordingly, MIAX Emerald does not allocate
its entire costs contained in those items to the market data products
associated with the proposed fees.
    The Exchange believes it is reasonable to allocate such internal
expense described above towards the total cost to the Exchange to
provide the market data products associated with the proposed fees. In
particular, MIAX Emerald's employee compensation and benefits expense
relating to providing the market data products associated with the
proposed fees is projected to be $935,400, which is only a portion of
the $9,354,009 total projected expense for employee compensation and
benefits. The Exchange believes it is reasonable to allocate the
identified portion of such expense because this includes the time spent
by employees of several departments, including Technology, Back Office,
Systems Operations, Networking, Business Strategy Development (who
create the business requirement documents that the Technology staff use
to develop market data products and enhancements), Trade Operations,
Finance (who provide billing and accounting services relating to the
market data products), and Legal (who provide legal services relating
to the market data products, such as rule filings and various license
agreements and other contracts). As part of the extensive cost review
conducted by the Exchange, the Exchange reviewed the amount of time
spent by each employee on matters relating to the provision of the
market data products associated with the proposed fees. Without these
employees, the Exchange would not be able to provide the market data
products associated with the proposed fees to its Members and their
customers. The Exchange did not allocate all of the employee
compensation and benefits expense toward the cost of the market data
products associated with the proposed fees, only the portions which the
Exchange identified as being specifically mapped to providing the
market data products associated with the proposed fees, approximately
10% of the total employee compensation and benefits expense. The
Exchange believes this allocation is reasonable because it represents
the Exchange's actual cost to provide the market data products
associated with the proposed fees, and not any other service, as
supported by its cost review.
    MIAX Emerald's depreciation and amortization expense relating to
providing the market data products associated with the proposed fees is
projected to be $38,125, which is only a portion of the $3,812,590
total projected expense for depreciation and amortization. The Exchange
believes it is reasonable to allocate the identified portion of such
expense because such expense includes the actual cost of the computer
equipment, such as dedicated servers, computers, laptops, monitors,
information security appliances and storage, and network switching
infrastructure equipment, including switches and taps that were
purchased to operate and support the network and provide the market
data products associated with the proposed fees. Without this
equipment, the Exchange would not be able to operate the network and
provide the market data products associated with the proposed fees to
its Members and their customers. The Exchange did not allocate all of
the depreciation and amortization expense toward the cost of providing
the market data products associated with the proposed fees, only the
portion which the Exchange identified as being specifically mapped to
providing the market data products associated with the proposed fees,
approximately 1% of the total depreciation and amortization expense, as
these access services would not be possible without relying on such.
The Exchange believes this allocation is reasonable because it
represents the Exchange's actual cost to provide the market data
products associated with the proposed fees, and not any other product
or service, as supported by its cost review.
    MIAX Emerald's occupancy expense relating to providing the market
data products associated with the proposed fees is projected to be
$47,432, which is only a portion of the $474,323 total projected
expense for occupancy. The Exchange believes it is reasonable to
allocate the identified portion of such expense because such expense
represents the portion of the Exchange's cost to rent and maintain a
physical location for the Exchange's staff who operate and support the
market data products, including providing the services associated with
the proposed fees. This amount consists primarily of rent for the
Exchange's Princeton, NJ office, as well as various related costs, such
as physical security, property management fees, property taxes, and
utilities. The Exchange operates its Network Operations Center
(``NOC'') and Security Operations Center (``SOC'') from its Princeton,
New Jersey office location. A centralized office space is required to
house the staff that operate and support the market data products. The
Exchange currently has approximately 150 employees. Approximately two-
thirds of the Exchange's staff are in the Technology department, and
the majority of those staff have some role in the operation and
performance of the network that supports the provision of the market
data products associated with the proposed fees. Without this office
space, the Exchange would not be able to operate and support the
network and provide the market data products associated with the
proposed fees to its Members and their customers. Accordingly, the
Exchange believes it is reasonable to allocate the identified portion
of its occupancy expense because such amount represents the Exchange's
actual cost to house the equipment and personnel who operate and
support the Exchange's network infrastructure and the market data
products associated with the proposed fees. The Exchange did not
allocate all of the occupancy expense toward the cost of providing the
market data products associated with the proposed fees, only the
portion which the Exchange identified as being specifically mapped to
operating and supporting the market data products, approximately 10% of
the total occupancy expense. The Exchange believes this allocation is
reasonable because it represents the Exchange's cost to provide the
services associated with the proposed fees, and not any other service,
as supported by its cost review.
    Accordingly, based on the facts and circumstances presented, the
Exchange believes that its provision of the market data products
associated with the proposed fees will not result in excessive pricing
or supra-competitive profit. To illustrate, on a going-forward, fully-
annualized basis, the Exchange projects that its annualized revenue for

providing the market data products associated with the proposed fees
would be approximately $648,000 per annum, based on a recent billing
cycle. The Exchange projects that its annualized expense for providing
the market data products associated with the proposed fees would be
approximately $1,040,064 per annum. Accordingly, on a fully-annualized
basis, the Exchange believes its total projected revenue for providing
the market data products associated with the proposed fees will not
result in excessive pricing or supra-competitive profit; rather, it
will result in a net loss to the Exchange of approximately ($392,064)
per year ($648,000 -$1,040,064 = -$392,064).
    For the avoidance of doubt, none of the expenses included herein
relating to the market data products associated with the proposed fees
relate to the provision of any other services offered by MIAX Emerald.
Stated differently, no expense amount of the Exchange is allocated
twice. The Exchange notes that, with respect to the MIAX Emerald
expenses included herein, those expenses only cover the MIAX Emerald
market; expenses associated with the Exchange's affiliate exchanges,
MIAX and MIAX PEARL, are accounted for separately and are not included
within the scope of this filing. Stated differently, no expense amount
of the Exchange is also allocated to MIAX or MIAX PEARL.
    The Exchange believes it is reasonable, equitable and not unfairly
discriminatory to allocate the respective percentages of each expense
category described above towards the total cost to the Exchange of
providing the market data products associated with the proposed fees
because the Exchange performed a line-by-line item analysis of all the
expenses of the Exchange, and has determined the expenses that directly
relate to providing the market data products associated with the
proposed fees. Further, the Exchange notes that, without the specific
third-party and internal items listed above, the Exchange would not be
able to provide the market data products associated with the proposed
fees to its Members and their customers. Each of these expense items,
including physical hardware, software, employee compensation and
benefits, occupancy costs, and the depreciation and amortization of
equipment, have been identified through a line-by-line item analysis to
be integral to providing these market data products. The proposed fees
are intended to recover the Exchange's costs of providing market data
to Exchange Members and their customers. Accordingly, the Exchange
believes that the proposed fees are fair and reasonable because they do
not result in excessive pricing or supra-competitive profit, when
comparing the actual costs to the Exchange versus the projected annual
revenue from the proposed fees.
    Further, the Exchange no longer believes it is necessary to waive
these fees to attract market participants to MIAX Emerald since this
market is now established and MIAX Emerald no longer needs to rely on
such waivers to attract market participants. The Exchange believes that
the proposal is equitable and not unfairly discriminatory because the
elimination of the fee waiver for the proposed fees will uniformly
apply to all market participants of the Exchange. The Exchange also
notes that the Exchange's affiliate, MIAX, charges similar market data
fees.\29\
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    \29\ See MIAX Fee Schedule, Section 6(a)-(c).
---------------------------------------------------------------------------

    The Exchange also points out that it is not seeking to recoup any
of its past costs associated with the provision of any market data fees
during the Waiver Period. The Exchange currently has 13 subscriptions
for its ToM data product; 11 subscriptions for its AIS data product;
and 8 subscriptions for its MOR data product. All of these subscribers
have not paid any market data fees during the Waiver Period. Further,
the majority of firms that are subscribers of the Exchange's affiliate
options exchanges, MIAX and MIAX PEARL, also received free market data
during similar Waiver Periods for the MIAX and MIAX PEARL market data
fees. Accordingly, the Exchange (and MIAX and MIAX PEARL) have assumed
100% of the costs associated with providing market data for the
majority of subscribers of the Exchange, MIAX, and MIAX PEARL during
their respective Waiver Periods. Accordingly, the Exchange believes
that it is reasonable, equitable, and not unfairly discriminatory to
now adopt market data fees that are reasonably related to (and designed
to recover) the Exchange's cost associated with the provision of such
market data.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act.
Intra-Market Competition
    The Exchange believes that the proposed fees do not put any market
participants at a relative disadvantage compared to other market
participants. As noted above, the proposed fee schedule would apply to
all subscribers of the ToM, AIS and MOR data feeds, and customers may
choose whether to subscribe to any or all of the feeds. The Exchange
also believes that the proposed fees neither favor nor penalize one or
more categories of market participants in a manner that would impose an
undue market on competition. Further, the Exchange's proposed market
data fee levels, as described herein, are comparable to fee levels
charged by other options exchanges for the same or similar services,
including those fees assessed by the Exchange's affiliate, MIAX.\30\
---------------------------------------------------------------------------

    \30\ See id.
---------------------------------------------------------------------------

    The Exchange believes that the proposed market data fees do not
place certain market participants at a relative disadvantage to other
market participants because the fees do not apply unequally to
different size market participants, but instead would allow the
Exchange charge for the time and resource necessary for providing
market data to the market participants that request such data.
Accordingly, the Exchange believes that the proposed market data fees
do not favor certain categories of market participants in a manner that
would impose a burden on competition.
Inter-Market Competition
    The Exchange believes the proposed fees do not place an undue
burden on competition on other SROs that is not necessary or
appropriate. The Exchange notes that its data feed prices are generally
lower than other options exchanges' data feed prices for their
comparable data feed products.\31\ The Exchange notes that it has far
less Members as compared to the much greater number of members at other
options exchanges resulting in fewer market data subscribers. The
Exchange is also unaware of any assertion that its proposed market data
fees would somehow unduly impair its competition with other options
exchanges. To the contrary, if the proposed market data fees are deemed
too high by market participants, they can simply discontinue their
market data subscriptions with the Exchange, as one such Member has
already done (as described above).
---------------------------------------------------------------------------

    \31\ See supra note 18.
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C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act,\32\ and Rule 19b-4(f)(2) \33\ thereunder.
At any time within 60 days of the filing of the proposed rule change,
the Commission summarily may temporarily suspend such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act. If the Commission takes such
action, the Commission shall institute proceedings to determine whether
the proposed rule should be approved or disapproved.
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    \32\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \33\ 17 CFR 240.19b-4(f)(2).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-EMERALD-2021-05 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-EMERALD-2021-05. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-EMERALD-2021-05, and should be submitted
on or before March 16, 2021.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\34\
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    \34\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-03549 Filed 2-22-21; 8:45 am]
BILLING CODE 8011-01-P