[Federal Register Volume 85, Number 223 (Wednesday, November 18, 2020)]
[Notices]
[Pages 73544-73548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25393]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90405]


Order Granting a Temporary Conditional Exemption Pursuant to 
Section 36 of the Securities Exchange Act of 1934 (``Exchange Act'') 
and Rule 608(e) of Regulation NMS Under the Exchange Act, Relating to 
the Reporting of Certain Activities on the Floor of National Securities 
Exchanges and Certain Activities by Industry Members Off Exchange 
Floors, as Required by Section 6.4(d) of the National Market System 
Plan Governing the Consolidated Audit Trail

November 12, 2020.

I. Introduction

    By letter dated July 1, 2020, BOX Exchange LLC (``BOX''), Cboe BYX 
Exchange, Inc., Cboe BZX Exchange, Inc., Cboe EDGA Exchange, Inc., Cboe 
EDGX Exchange, Inc., Cboe C2 Exchange, Inc., Cboe Exchange, Inc. 
(``CBOE''), Financial Industry Regulatory Authority, Inc. (``FINRA''), 
Investors Exchange LLC, Miami International Securities Exchange LLC, 
MIAX Emerald, LLC, MIAX PEARL, LLC, NASDAQ BX, LLC, Nasdaq GEMX, LLC, 
Nasdaq ISE, LLC, Nasdaq MRX, LLC, NASDAQ PHLX LLC (``PHLX''), The 
NASDAQ Stock Market LLC, New York Stock Exchange LLC (``NYSE''), NYSE 
American LLC (``NYSE American''), NYSE Arca, Inc. (``NYSE Arca''), NYSE 
Chicago, Inc., NYSE National, Inc., and Long Term Stock Exchange, Inc. 
(collectively, the ``Participants'' or ``SROs'') requested

[[Page 73545]]

that the Securities and Exchange Commission (``Commission'' or ``SEC'') 
grant temporary exemptive relief to the Participants from the National 
Market System Plan Governing the Consolidated Audit Trail (``CAT NMS 
Plan''),\1\ pursuant to its authority under Section 36 of the 
Securities Exchange Act of 1934 (``Exchange Act'') \2\ and Rule 608(e) 
of Regulation NMS under the Exchange Act, from certain reporting 
requirements in Section 6.4(d) of the CAT NMS Plan relating to certain 
activities on the floors of national securities exchanges and certain 
activities by Industry Members off exchange floors.\3\
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    \1\ The CAT NMS Plan was approved by the Commission, as 
modified, on November 15, 2016. See Securities Exchange Act Release 
No. 79318 (November 15, 2016), 81 FR 84696 (November 23, 2016) 
(``CAT NMS Plan Approval Order'').
    \2\ 15 U.S.C. 78mm(a)(1).
    \3\ See letter from the Participants to Vanessa Countryman, 
Secretary, Commission, dated July 1, 2020 (the ``July 1, 2020 
Exemption Request''). Unless otherwise noted, capitalized terms are 
used as defined in the CAT NMS Plan. MEMX LLC was added as a 
Participant to the CAT NMS Plan on June 5, 2020. See Securities 
Exchange Act Release No. 89306 (July 13, 2020), 85 FR 43626 (July 
17, 2020).
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    Section 36 of the Exchange Act grants the Commission the authority, 
with certain limitations, to ``conditionally or unconditionally exempt 
any person, security, or transaction . . . from any provision or 
provisions of [the Exchange Act] or of any rule or regulation 
thereunder, to the extent that such exemption is necessary or 
appropriate in the public interest, and is consistent with the 
protection of investors.'' \4\ Under Rule 608(e) of Regulation NMS, the 
Commission may ``exempt from [Rule 608], either unconditionally or on 
specified terms and conditions, any self-regulatory organization, 
member thereof, or specified security, if the Commission determines 
that such exemption is consistent with the public interest, the 
protection of investors, the maintenance of fair and orderly markets 
and the removal of impediments to, and perfection of the mechanism of, 
a national market system.'' \5\
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    \4\ 15 U.S.C. 78mm(a)(1).
    \5\ 17 CFR 242.608(e).
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    For the reasons set forth below, this Order grants the 
Participants' request for a temporary exemption from Section 6.4(d) of 
the CAT NMS Plan as set forth in the July 1, 2020 Exemption Request, 
expiring on July 31, 2023.

II. Request for Relief

    In the July 1, 2020 Exemption Request, the Participants request 
that the Commission exempt each Participant from the requirement in 
Section 6.4(d) of the CAT NMS Plan that each Participant, through its 
Compliance Rule, require its Industry Members to record and 
electronically report to the Central Repository: (1) Floor broker 
verbal announcements of firm bids and offers on an exchange trading 
floor that are otherwise reported as systematized orders; and (2) 
market maker verbal announcements of firm quotes on an exchange trading 
floor, to the extent either are considered orders reportable under Rule 
613 of Regulation NMS, the CAT NMS Plan and the Compliance Rules, until 
July 31, 2023. As a condition to this exemptive relief, the 
Participants state that they would continue to require that firm verbal 
interest on an exchange floor (which includes both floor broker verbal 
announcements of firm bids and offers and market maker verbal 
announcements of firm quotes) be expressed pursuant to exchange rules 
approved by the Commission,\6\ and that any such firm verbal interest 
expressed by a floor broker must be related to a CAT-reportable 
systematized order, and any resulting trade must be reported to CAT.
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    \6\ Exchanges with floors currently have rules that govern the 
operation of the trading floor, from original receipt and 
systematization of an order by a floor broker to execution, 
including rules describing how verbal interest on an exchange floor 
is to be communicated. See, e.g., July 1, 2020 Exemption Request, 
Exhibit A (describing the process for relevant exchanges).
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    In addition, the Participants request that the Commission exempt 
each Participant from the requirement in Section 6.4(d) of the CAT NMS 
Plan that each Participant, through its Compliance Rule, require its 
Industry Members to record and electronically report to the Central 
Repository the following communications that occur ``upstairs,'' \7\ to 
the extent such are considered reportable under Rule 613 of Regulation 
NMS, the CAT NMS Plan and the Compliance Rules, until July 31, 2023: 
(1) Telephone discussions between an Industry Member and a client that 
may involve firm bid and offer communications; and (2) unstructured 
electronic and verbal communications that are not currently captured by 
Industry Member order management or execution systems (e.g., Bloomberg 
chats, text messages).
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    \7\ ``Upstairs'' is a term used to describe the off-exchange 
market. For example, trading that occurs within a broker-dealer firm 
or between two broker-dealers in the over-the-counter market would 
be described as occurring ``upstairs.''
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A. Exchange Floor Activity

    The Participants state that on all exchanges with floor trading,\8\ 
each order must be systematized upon receipt by the floor broker on the 
floor of the exchange.\9\ The Participants further state that an order 
is considered systematized: (1) When it is sent electronically to the 
floor broker's system at the exchange; or (2) when the order is 
manually systematized by the floor broker upon receipt outside of the 
floor broker's system and prior to representation in the floor trading 
crowd.\10\ To the extent a floor broker is not holding a systematized 
order, the floor broker is not eligible to represent any firm bid or 
offer, or to request firm quotes from in-crowd market participants on 
the floor of an exchange.\11\ The Participants state that all firm bids 
or offers represented by a floor broker must be associated with orders 
that have already been systematized, and that any activity by the floor 
broker prior to systemization cannot be related to an order, bid or 
offer pursuant to the CAT NMS Plan.\12\ As a result of the 
systematization requirements, all orders represented verbally by a 
floor broker on an exchange floor are required to be captured in 
exchange systems and, under CAT requirements, the floor broker's 
receipt of the order, and any modification, electronic route, 
cancellation, or execution of the order is subject to CAT 
reporting.\13\ The Participants believe that two verbal events on 
exchange floors may be CAT-reportable: Floor broker announcements of 
firm orders and market maker announcements of firm quotes.
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    \8\ Currently, these exchanges are NYSE, NYSE American, NYSE 
Arca, CBOE, PHLX and BOX.
    \9\ See July 1, 2020 Exemption Request, supra note 3, at 3.
    \10\ See id. at 3.
    \11\ See July 1, 2020 Exemption Request, supra note 3, at 3. See 
also NYSE Rule 7.35B, NYSE Arca Rule 6.67-O, NYSE American Rule 
955NY and Cboe Rule 5.91(a)(4).
    \12\ See July 1, 2020 Exemption Request, supra note 3, at 3. See 
also NYSE Rule 7.35B, NYSE Arca Rule 6.67-O, NYSE American Rule 
955NY and Cboe Rule 5.91(a)(4).
    \13\ See July 1, 2020 Exemption Request, supra note 3, at 3.
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    The Participants state that that reporting of either of these two 
verbal events were not contemplated when the Commission and the 
Participants were considering the cost and impact of the CAT NMS 
Plan.\14\ The Participants further state that requiring these elements 
to be reported to CAT would have a significant and costly impact to 
exchange floors, to floor broker and market maker business models, and 
to market structure; and the data being captured would provide minimal 
added regulatory benefit, likely not justified by

[[Page 73546]]

the costs that would be required to create systems to capture the 
activity.\15\
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    \14\ See id. at 6-7.
    \15\ See id. at 6.
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    The Participants explain that floor brokers and floor market makers 
will ultimately be required to expend significant effort and funds to 
provide the data necessary to report verbal orders and quotes to 
CAT.\16\ The Participants state that if verbal floor activity were 
required to be reported to CAT, Industry Members operating on exchange 
floors would need to create a process or system to electronically 
record in real time the firm data being verbally communicated on 
exchange floors and to merge that data into the information tracked 
electronically.\17\ The Participants state that neither the exchanges 
with floors nor Industry Members currently collect or have the means to 
collect the data for verbal activity on the floor for purposes for CAT 
reporting and the measures necessary to put such systems in place would 
significantly disrupt floor trading.\18\ The Participants further state 
that requiring such reporting would likely cause market makers to miss 
participation in fast-changing markets, and no similar burden would be 
borne by electronic market makers, whose data collection for CAT 
reporting will not impact their real-time ability to provide liquidity 
to the market.\19\
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    \16\ See id. at 6.
    \17\ See id. at 9.
    \18\ See July 1, 2020 Exemption Request, supra note 3, at 6.
    \19\ See id. at 8.
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B. Unstructured Verbal and Electronic Activity

    The Participants believe that much unstructured verbal and 
electronic activity by Industry Members does not involve firm orders 
and is thus not subject to CAT reporting.\20\ However, the Participants 
believe that two types of verbal and unstructured electronic upstairs 
activity may involve firm orders that would be subject to CAT 
reporting: (1) Verbal telephone discussions between an Industry Member 
and a client and (2) unstructured electronic communications that are 
not currently captured by Industry Member order management or execution 
systems.
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    \20\ See id. at 9.
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    The Participants state that telephonic discussions and unstructured 
electronic upstairs activities were not contemplated as being CAT 
reportable at the time the Commission adopted Rule 613 of Regulation 
NMS and the CAT NMS Plan.\21\ The Participants state that the industry 
has provided the Participants with cost projections for capturing and 
reporting upstairs negotiations, which are estimated to be 
approximately $485 million to $590 million.\22\ The Participants 
further state that these cost projections recognize that Industry 
Members do not currently collect data for these scenarios, and do not 
have the means today to collect such data. The Participants also 
explain that there is uncertainty whether necessary information can be 
captured with today's technology or personnel in a reliable, accurate 
and consistent manner.\23\ The Participants do not believe this 
information will add much value to the data available in CAT and any 
minimal added regulatory benefit would be outweighed by costs imposed 
on, and adverse impact on, Industry Members.\24\
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    \21\ See id. at 9-10.
    \22\ See id. at 10.
    \23\ See July 1, 2020 Exemption Request, supra note 3, at 10. 
The Commission understands that this estimation is based on industry 
cost projections and assumes significant manual intervention is 
necessary to capture this information.
    \24\ See id.
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    The Participants state that the changes required to capture and 
report verbal and unstructured electronic upstairs activity would cause 
significant and adverse changes to existing industry practices and 
business models, which would conflict with one of the underlying 
principles of the CAT.\25\ The Participants also state that reporting 
of this activity may also slow trading processes at certain broker-
dealers, and/or may increase the time to initiate a trade, causing 
clients potentially to receive less advantageous pricing for 
investors.\26\ The Participants also believe that if required to be 
reported, Industry Members may modify their workflows to rely more 
heavily on indications of interest or similar methods outside the 
definition of an order, thereby avoiding CAT reporting requirements for 
that activity, which could have a negative impact on the price 
discovery process as well as existing workflows.\27\
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    \25\ See id.
    \26\ See id.
    \27\ See id.
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    The Participants also state that identifying and reporting of 
verbal or unstructured electronic communications is difficult and given 
the subjective nature of determining whether or not a bid or offer is 
firm, CAT reporting of such communications will be variable and 
inconsistent.\28\ The Participants state that Industry Members and 
different individuals could reach different conclusions about whether 
or not specific verbal or unstructured electronic communications meet 
the elements of a CAT Reportable Event and Industry Members on opposite 
sides of a bid/offer may capture the same activity differently, 
resulting in a misleading view of the transaction.\29\
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    \28\ See July 1, 2020 Exemption Request, supra note 3, at 10.
    \29\ See id. at 10.
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III. Discussion of Participants' Exemption Request

    The Commission has carefully considered the information provided by 
the Participants in support of the Participants' exemption request. The 
Commission believes that granting temporary exemptive relief is, 
pursuant to Section 36 of the Exchange Act, appropriate in the public 
interest and consistent with the protection of investors, and that 
pursuant to Rule 608(e), this exemption is consistent with the public 
interest, the protection of investors, the maintenance of fair and 
orderly markets and the removal of impediments to, and the perfection 
of a national market system.
    Rule 613(j)(9) of Regulation NMS and Section 1.1 of the CAT NMS 
Plan defines the term ``reportable event'' as including, but not 
limited to, the original receipt or origination, modification, 
cancellation, routing, and execution (in whole or in part) of an order, 
and receipt of a routed order.\30\ The term ``order'' is defined in 
Rule 613(j)(8) of Regulation NMS and Section 1.1 of the CAT NMS Plan as 
including: (i) Any order received by a member of a national securities 
exchange or national securities association from any person; (ii) any 
order originated by a member of a national securities exchange or 
national securities association; or (iii) any bid or offer.\31\ ``Bid'' 
and ``offer'' are defined in Regulation NMS as the bid price or offer 
price communicated by a member of an exchange or association to any 
broker-dealer or to any customer, at which it is willing to buy or sell 
one or more round lots of an NMS security, as principal or agent, but 
excluding indications of interest.\32\
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    \30\ See 17 CFR 242.613(j)(9).
    \31\ See 17 CFR 242.613(j)(8).
    \32\ See 17 CFR 242.600(b)(8).
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    Rule 613 and the CAT NMS Plan both require the capture and 
reporting of quotes and orders that meet the definition of a CAT 
reportable event, which includes verbal quotes and orders. The 
Commission believes that many unstructured verbal or manual 
communications on exchange floors and ``upstairs'' are reportable 
events under Rule 613 and the CAT NMS Plan because firm verbal quotes 
and orders,

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whether they occur on an exchange floor or ``upstairs,'' are reportable 
to CAT if they are a firm bid or offer. As the Participants note, firm 
indications of a willingness to buy or sell a security are orders, 
bids, or offers and have reportable events associated with them 
pursuant to the CAT NMS Plan.\33\ However, indications of interest and 
other verbal negotiations that do not constitute firm quotes or orders 
are not reportable to CAT, and many unstructured verbal or manual 
communications on exchange floors and ``upstairs'' are not reportable 
to CAT because they are not firm.
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    \33\ See July 1, 2020 Exemption Request, supra note 3, at 3.
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    The Commission disagrees with the Participants' statement that the 
verbal announcement of already systematized and reported orders and of 
firm quotes on exchange floors, firm bid and offer communications in 
verbal telephone discussions between an Industry Member and a client, 
and firm orders in unstructured electronic communications that are not 
currently captured by Industry Member order management or execution 
systems were not contemplated as being CAT-reportable at the time the 
Commission adopted Rule 613 and the approval of the CAT NMS Plan. 
Verbal quotes and orders are a subset of ``Manual Order Events,'' 
which, as defined by the CAT NMS Plan, are non-electronic 
communications of order-related information for which CAT Reporters 
must record and report the time of the event.\34\ Prior to approval of 
the CAT NMS Plan, the Participants requested and were granted exemptive 
relief from the requirement in Rule 613(d)(3) of Regulation NMS that, 
for Manual Order Events, each CAT Reporter record and report details 
for reportable events in timestamps to the millisecond.\35\ In support 
of the request, the SROs listed examples illustrating reportable events 
involving the non-electronic communication of order-related information 
for which CAT Reporters must record and report the time of the event 
under Rule 613, and, among other things, noted that ``a floor broker at 
an exchange that represents an order on the floor of the exchange may 
have to capture the time stamp of order events manually.'' \36\
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    \34\ See CAT NMS Plan at Section 1.1 (defining ``Manual Order 
Events'' as ``a non-electronic communication of order-related 
information for which CAT Reporters must record and report the time 
of the event'').
    \35\ See Securities Exchange Act Release No. 77265 (March 1, 
2016), 81 FR 11856 (March 7, 2016). The Commission granted exemptive 
relief conditioned upon (1) Manual Order Events being recorded and 
reported with granularity to the second; (2) Manual Order Events 
being identified as such in the CAT; and (3) the Electronic Capture 
of Manual Order Events being recorded and reported to the 
millisecond. Manual Order Events are defined in the CAT NMS Plan as 
a non-electronic communication of order-related information for 
which CAT Reporters must record and report the time of the event.
    \36\ See letter from BATS Exchange, Inc., BATS Y-Exchange, Inc., 
BOX Options Exchange LLC, C2 Options Exchange, Inc., Chicago Board 
Options Exchange, Inc., Chicago Stock Exchange, Inc., EDGA Exchange, 
Inc., EDGX Exchange, Inc., Financial Industry Regulatory Authority, 
Inc., International Securities Exchange, LLC, ISE Gemini, LLC, Miami 
International Securities Exchange LLC, The Nasdaq Stock Market LLC, 
Nasdaq OMX BX, Inc., Nasdaq OMX PHLX LLC, National Stock Exchange, 
Inc., NYSE Arca, Inc., New York Stock Exchange LLC, and NYSE MKT LLC 
to Brent J. Fields, Secretary, Commission, dated January 30, 2015, 
at 33, available at: https://www.sec.gov/rules/exorders/2016/finra-incoming-letter-013015.pdf.
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    The Participants state that capturing this verbal activity would be 
costly, and provide minimal added regulatory benefit likely not 
justified by the costs. In particular, as noted above, Industry Members 
have provided Participants with cost projections for capturing and 
reporting upstairs negotiations, which are estimated to be 
approximately $485M to $590M. The Commission acknowledges the current 
difficulties of implementing reporting of such events, as described by 
the Participants in the July 1, 2020 Exemption Request. Currently, the 
exchanges with floors and Industry Members do not have the means to 
collect the information necessary for reporting verbal activity on 
exchange floors or upstairs. At the same time, the Commission believes 
that the collection of verbal quotes and orders would provide 
regulatory benefits that do not currently exist today and disagrees 
with the Participants statement that capturing such data would provide 
minimal added regulatory benefit.\37\ Such reporting would help 
regulators better identify potential violations of securities laws, 
regulations, and exchange rules, including violations of best execution 
obligations, firm bid/offer obligations and exchange priority rules. 
For example, the reporting of firm verbal quotes from floor market 
makers would allow regulators to determine whether a market maker has 
``backed away'' from a firm quote. Currently, regulators do not have 
detailed information relating to most verbal quotes and orders and such 
information would allow regulators to more capably perform regulatory 
and surveillance functions, and the Commission does not believe it is 
appropriate to exclude such quotes and orders from CAT reporting, which 
often are more complex and/or involve larger-sized orders, particularly 
on options trading floors and trading floors for proprietary products.
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    \37\ See July 1, 2020 Exemption Request, supra note 3, at 6 and 
10.
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    Given the concerns expressed by the Participants, the Commission 
believes the Participants' request to delay the reporting requirements 
for verbal quotes and orders is reasonable. While including verbal 
quotes and orders in the CAT will provide regulatory benefits, the 
Commission acknowledges that the reporting of such orders and quotes 
involves complexity and/or costs, especially because capture of this 
information may require significant manual human intervention. The 
Commission believes that granting temporary exemptive relief to delay 
the reporting of verbal quotes and orders could allow Participants and 
Industry Members time to develop or implement technological changes 
necessary to capture this information at a lower cost. The Commission 
further believes that over time, the costs of capturing this CAT 
reportable information could decline due to technological or business 
developments, such as through the usage of artificial intelligence or 
automated processes to capture and report such information, instead of 
reliance on the manual capture of order information.
    Based on the foregoing, pursuant to Section 36 of the Exchange Act, 
it is appropriate in the public interest and consistent with the 
protection of investors, and pursuant to Rule 608(e), it is consistent 
with the public interest, the protection of investors, the maintenance 
of fair and orderly markets and the removal of impediments to, and the 
perfection of a national market system to grant temporary relief for 
the reporting of: (1) Floor broker verbal announcements of firm orders 
on an exchange that are otherwise reported as systematized orders; (2) 
market maker verbal announcements of firm quotes on an exchange trading 
floor and; (3) telephone discussions between an Industry Member and a 
client that involve firm bid and offer communications; and (4) 
unstructured electronic communications that are not currently captured 
by Industry Member order management or execution systems. Granting 
temporary exemptive relief until July 31, 2023, which is the date 
requested by Participants in the July 1, 2020 Exemption Request, and 
which is approximately one year after the date by which the 
Participants previously estimated that the CAT would be fully 
implemented, July 11,

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2022,\38\ would provide CAT Reporters the time to fully consider how to 
report such events and create the necessary technological and process 
changes required to capture these required quotes and orders while 
minimizing potential business disruptions and impacts to existing 
workflows. As a condition to this relief, the Participants must provide 
the Commission a written status update on the reporting of these quotes 
and orders by July 31, 2022, including the estimated costs of reporting 
these quotes and orders and an implementation plan for the reporting of 
these quotes and orders.
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    \38\ See Securities Exchange Act Release No. 88890 (May 15, 
2020), 85 FR 31322, 31334 (May 22, 2020).
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IV. Conclusion

    The Commission believes it is appropriate to grant temporary 
exemptive relief that exempts each Participant from the requirement in 
Section 6.4(d) of the CAT NMS Plan for each Participant, through its 
Compliance Rule, to require its Industry Members to record and 
electronically report to the Central Repository the following 
communications, until July 31, 2023: (1) Floor broker verbal 
announcements of firm orders on an exchange that are otherwise reported 
as systematized orders; (2) market maker verbal announcements of firm 
quotes on an exchange trading floor; (3) telephone discussions between 
an Industry Member and a client that may involve firm bid and offer 
communications; and (4) unstructured electronic and verbal 
communications that are not currently captured by Industry Member order 
management or execution systems. As a condition to this relief, the 
Participants must provide the Commission a written status update on the 
reporting of these quotes and orders by July 31, 2022, including the 
estimated costs of reporting these quotes and orders and an 
implementation plan for the reporting of these quotes and orders. 
Furthermore, as a condition to this exemptive relief, Participants must 
continue to require that firm verbal interest on an exchange floor be 
expressed pursuant to exchange rules approved by the Commission and 
Participants must require that any firm verbal interest expressed by a 
floor broker must be related to a CAT-reportable systematized order, 
and any resulting trade must be reported to CAT.
    Accordingly, it is hereby ordered, pursuant to Section 36(a)(1) of 
the Exchange Act,\39\ and Rule 608(e) of the Exchange Act \40\ that the 
Participants are granted an exemption, until July 31, 2023, from the 
requirement in Section 6.4(d) of the CAT NMS Plan that requires each 
Participant, through its Compliance Rule, to require its Industry 
Members to record and electronically report to the Central Repository: 
(1) Floor broker verbal announcements of firm orders on an exchange 
that are otherwise reported as systematized orders; (2) market maker 
verbal announcements of firm quotes on an exchange trading floor; (3) 
telephone discussions between an Industry Member and a client that may 
involve firm bid and offer communications; (4) unstructured electronic 
and verbal communications that are not currently captured by Industry 
Member order management or execution systems (e.g., Bloomberg chats, 
text messages), subject to the conditions described above.
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    \39\ 15 U.S.C. 78mm(a)(1).
    \40\ 17 CFR 242.608(e).

    By the Commission.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-25393 Filed 11-17-20; 8:45 am]
BILLING CODE 8011-01-P