[Federal Register Volume 86, Number 152 (Wednesday, August 11, 2021)]
[Notices]
[Pages 44092-44096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17084]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-92577; File No. SR-ISE-2021-16]


Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend ISE's 
Options Regulatory Fee

August 5, 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 July 30, 2021, Nasdaq ISE, LLC (``ISE'' or ``Exchange'') filed with 
the Securities and Exchange Commission (``SEC'' or ``Commission'') the 
proposed rule change as described in Items I and II, 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.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend ISE's Pricing Schedule at Options 7, 
Section 9, Part C related to the Options Regulatory Fee or ``ORF''.
    While the changes proposed herein are effective upon filing, the 
Exchange has designated the amendments become operative on October 1, 
2021.
    The text of the proposed rule change is available on the Exchange's 
website at https://listingcenter.nasdaq.com/rulebook/ise/rules, at the 
principal office of the Exchange, 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
    Currently, ISE assesses an ORF of $0.0018 per contract side as 
specified in ISE's Pricing Schedule at Options 7, Section 9, Part C. 
The Exchange proposes to waive its ORF from October 1, 2021 to January 
31, 2022, and then recommence the ORF on February 1, 2022.
    By way of background, the options industry has experienced 
extremely high options trading volumes and volatility. This historical 
anomaly of persistent increased options volumes has impacted ISE's ORF 
collection which, in turn, has caused the Exchange to continue to 
revisit its financial forecast to reflect the sustained elevated 
options volumes and volatility. As the Exchange continues to monitor 
the amount of revenue collected from the ORF to ensure that our ORF 
collection, in combination with other regulatory fees and fines, does 
not exceed regulatory costs, the Exchange has found it difficult to 
determine when volumes will return to more normal levels. In order to 
avoid iterative rule changes to amend its ORF, the Exchange believes it 
is prudent to instead waive its ORF from October 1, 2021 to January 31, 
2022, to permit the Exchange to plan future forecasts without the need 
to account for any ORF collection during that timeframe. This proposal 
would ensure that revenue collected from the ORF, in combination with 
other regulatory fees and fines, would not exceed the Exchange's total 
regulatory costs. ISE would recommence assessing its current ORF rate 
of $0.0018 per contract side as of February 1, 2022. Furthermore, prior 
to February 1, 2022, ISE will examine its ORF rate to determine if the 
$0.0018 per contract side ORF is justified given the current volumes in 
2022 as well as the current Exchange regulatory expenses at that time. 
ISE would file a proposed rule change to amend its per contract ORF if 
changes are necessary to ensure an equitable allocation of reasonable 
ORF, if e.g., the Exchange believes that the volumes ISE experiences in 
the second half of 2021 are likely to persist throughout 2022. Of note, 
ISE proposes to continue to operate with the ORF fee waived in January 
2022 to allow its members and other broker dealers time to align their 
systems for February 1, 2022, allowing for time after the holiday 
period which traditionally have year-end code freezes in place.

[[Page 44093]]

Collection of ORF
    Currently, ISE assesses its ORF for each customer option 
transaction that is either: (1) Executed by a member on ISE; or (2) 
cleared by an ISE member at The Options Clearing Corporation (``OCC'') 
in the customer range,\3\ even if the transaction was executed by a 
non-member of ISE, regardless of the exchange on which the transaction 
occurs.\4\
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    \3\ Participants must record the appropriate account origin code 
on all orders at the time of entry of the order. The Exchange 
represents that it has surveillances in place to verify that members 
mark orders with the correct account origin code.
    \4\ The Exchange uses reports from OCC when assessing and 
collecting the ORF.
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ORF Revenue and Monitoring of ORF
    The Exchange monitors the amount of revenue collected from the ORF 
to ensure that it, in combination with other regulatory fees and fines, 
does not exceed regulatory costs. In determining whether an expense is 
considered a regulatory cost, the Exchange reviews all costs and makes 
determinations if there is a nexus between the expense and a regulatory 
function. The Exchange notes that fines collected by the Exchange in 
connection with a disciplinary matter offset ORF.
    Revenue generated from ORF, when combined with all of the 
Exchange's other regulatory fees and fines, is designed to recover a 
material portion of the regulatory costs to the Exchange of the 
supervision and regulation of member customer options business 
including performing routine surveillances, investigations, 
examinations, financial monitoring, and policy, rulemaking, 
interpretive, and enforcement activities. Regulatory costs include 
direct regulatory expenses and certain indirect expenses in support of 
the regulatory function. The direct expenses include in-house and 
third-party service provider costs to support the day-to-day regulatory 
work such as surveillances, investigations and examinations. The 
indirect expenses include support from such areas as Office of the 
General Counsel, technology, and internal audit. Indirect expenses are 
estimated to be approximately 42% of the total regulatory costs for 
2021. Thus, direct expenses are estimated to be approximately 58% of 
total regulatory costs for 2021.
    The ORF is designed to recover a material portion of the costs to 
the Exchange of the supervision and regulation of its members, 
including performing routine surveillances, investigations, 
examinations, financial monitoring, and policy, rulemaking, 
interpretive, and enforcement activities.
Proposal
    Based on the Exchange's most recent review, the Exchange proposes 
to waive ORF from October 1, 2021 to January 31, 2022, to help ensure 
that revenue collected from the ORF, in combination with other 
regulatory fees and fines, does not exceed the Exchange's total 
regulatory costs. ISE would recommence assessing its current ORF rate 
of $0.0018 per contract side as of February 1, 2022. The Exchange 
issued an Options Trader Alert on July 2, 2021 indicating the proposed 
rate change for October 1, 2021.\5\
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    \5\ See Options Trader Alert 2021-41.
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    The proposed waiver is based on recent options volume which has 
remained at abnormally and unexpectedly high levels. Options volume in 
2021 remains significantly high when that volume is compared to 2019 
and 2020 options volume. For example, total options contract volume in 
November 2020 was 71% higher than the total options contract volume in 
November 2019.\6\ Below is industry data from OCC \7\ which illustrates 
the significant increase in volume during the fourth quarter of 2020.
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    \6\ See data from OCC at: https://www.businesswire.com/news/home/20201202005584/en/OCC-November-2020-Total-Volume-Up-71-Percent-From-a-Year-Ago.
    \7\ See data from OCC at: https://www.theocc.com/Market-Data/Market-Data-Reports/Volume-and-Open-Interest/Volume-by-Account-Type.

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                 Volume                     October 2020      November 2020     December 2020        Q4 2020
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Total...................................       633,365,184       673,660,858       753,568,354     2,060,594,396
Customer................................       587,707,301       630,297,252       708,037,956     1,926,042,509
Total ADV...............................     28,789,326.55     33,683,042.90     34,253,107.00     32,196,787.44
Customer ADV............................     26,713,968.23     31,514,862.60     32,183,543.45     30,094,414.20
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    Below is industry data from OCC \8\ which illustrates the 
significant increase in volume from January 2021 through March 2021. 
The options volume in the first quarter of 2021 was higher than the 
fourth quarter of 2020. Also, April and May 2021 volumes remain 
significantly high as compared to 2020 options volume in general.
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    \8\ Id.

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                            Volume                                January 2021      February 2021      March 2021        April 2021         May 2021
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Total.........................................................       838,339,790       823,412,827       898,653,388       711,388,828       718,368,993
Customer......................................................       784,399,878       782,113,450       837,247,059       667,208,963       659,913,862
Total ADV.....................................................     44,123,146.84     43,337,517.20     39,071,886.40     33,875,658.50     35,918,449.70
Customer ADV..................................................     41,284,204.11     41,163,865.79     36,402,046.04     31,771,855.38     32,995,693.10
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    As a result of the historical anomaly created by these high options 
volumes, ISE has no assurance that the Exchange's final costs for 2021 
will not differ materially from these expectations and prior practice, 
nor can the Exchange predict with certainty whether options volume will 
remain at the current level going forward. The Exchange notes however, 
that when combined with regulatory fees and fines, the revenue being 
generated utilizing the current ORF rate may result in revenue in 
excess of the Exchange's estimated regulatory costs for the year. 
Particularly, as noted above, the options market has seen a substantial 
increase in volume in 2021 as compared to 2020, due in large part to 
the continued extreme volatility in the marketplace as a result of the 
COVID-19 pandemic. This unprecedented spike in volatility resulted in 
significantly higher volume than was originally projected by the 
Exchange (thereby resulting in substantially higher ORF revenue than 
projected). The Exchange therefore proposes to waive ORF from October 
1, 2021 to January 31, 2022 to ensure it does not exceed its regulatory 
costs for

[[Page 44094]]

2021. Particularly, the Exchange believes that waiving ORF from October 
1, 2021 to January 31, 2022 and considering all of the Exchange's other 
regulatory fees and fines would allow the Exchange to continue covering 
a material portion of its regulatory costs, while lessening the 
potential for generating excess revenue that may otherwise occur using 
the current rate.\9\
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    \9\ The Exchange notes that its regulatory responsibilities with 
respect to member compliance with options sales practice rules have 
largely been allocated to FINRA under a 17d-2 agreement. The ORF is 
not designed to cover the cost of that options sales practice 
regulation.
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    ISE would recommence assessing its current ORF rate of $0.0018 per 
contract side as of February 1, 2022. Until October 1, 2021, the 
Exchange will continue to monitor the amount of revenue collected from 
the ORF to ensure that it, in combination with its other regulatory 
fees and fines, does not exceed regulatory costs. The Exchange would 
also continue monitoring the amount of revenue collected from the ORF 
when it recommences assessing ORF on February 1, 2022. If the Exchange 
determines regulatory revenues exceed regulatory costs, the Exchange 
will adjust the ORF by submitting a fee change filing to the Commission 
and notifying \10\ its members via an Options Trader Alert.\11\
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    \10\ The Exchange will provide members with such notice at least 
30 calendar days prior to the effective date of the change.
    \11\ The Exchange notes that in connection with this proposal, 
it provided the Commission confidential details regarding the 
Exchange's projected regulatory revenue, including projected revenue 
from ORF, along with a projected regulatory expenses.
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2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with 
the Securities Exchange Act of 1934 (the ``Act'') and the rules and 
regulations thereunder applicable to the Exchange and, in particular, 
the requirements of Section 6(b) of the Act.\12\ Specifically, the 
Exchange believes the proposed rule change is consistent with Section 
6(b)(4) of the Act,\13\ which provides that Exchange rules may provide 
for the equitable allocation of reasonable dues, fees, and other 
charges among its members, and other persons using its facilities. 
Additionally, the Exchange believes the proposed rule change is 
consistent with the Section 6(b)(5) \14\ requirement that the rules of 
an exchange not be designed to permit unfair discrimination between 
customers, issuers, brokers, or dealers.
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    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(4).
    \14\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes the proposed fee waiver is reasonable because 
customer transactions will be subject to no ORF from October 1, 2021 to 
January 31, 2022. Moreover, the proposed waiver is necessary, so the 
Exchange does not collect revenue in excess of its anticipated 
regulatory costs, in combination with other regulatory fees and fines, 
which is consistent with the Exchange's practices.
    The Exchange designed the ORF to generate revenues that would be 
less than the amount of the Exchange's regulatory costs to ensure that 
it, in combination with its other regulatory fees and fines, does not 
exceed regulatory costs, which is consistent with the view of the 
Commission that regulatory fees be used for regulatory purposes and not 
to support the Exchange's business operations. As discussed above, 
however, after review of its regulatory costs and regulatory revenues, 
which includes revenues from ORF and other regulatory fees and fines, 
the Exchange determined that absent a reduction in ORF, it may be 
collecting revenue in excess of its regulatory costs. Indeed, the 
Exchange notes that when considering the recent options volume, which 
included an increase in customer options transactions, it estimates the 
ORF may generate revenues that may cover more than the approximated 
Exchange's projected regulatory costs. As such, the Exchange believes 
it's reasonable and appropriate to waive ORF from October 1, 2021 to 
January 31, 2022 and recommence assessing ORF on February 1, 2022.
    The Exchange also believes the proposed fee change is equitable and 
not unfairly discriminatory as no member would be assessed an ORF from 
October 1, 2021 to January 31, 2022. While the Exchange has assessed 
and collected ORF from January through September, 2021, but will not 
collect ORF, with this proposal, from October 2021 through January 
2022, the Exchange does not believe that it is unfairly discriminatory 
to not assess the ORF from October 2021 through January 2022 because 
the ORF is designed and intended to recover a portion of the Exchange's 
regulatory costs without collecting in excess of those costs. 
Unexpectedly high and sustained customer volume has resulted in higher 
revenues from the ORF that, if not suspended, will likely result in 
over-collection of ORF, which would be inconsistent with the Exchange's 
prior representations and undertaking to not collect ORF in excess of 
regulatory expenses. Despite decreasing the amount of the ORF on April 
1, 2021, the Exchange did not decrease the amount of the ORF again in 
2021 because it did not expect, based on its prior experience, that 
customer volume would remain abnormally high. Also, it is equitable and 
not unfairly discriminatory to recommence the assessment of the ORF on 
February 1, 2022 because assessing the ORF to each member for options 
transactions cleared by OCC in the customer range where the execution 
occurs on another exchange and is cleared by aa ISE member is an 
equitable allocation of reasonable dues, fees, and other charges among 
its members and issuers and other persons using its facilities.\15\
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    \15\ If the OCC clearing member is a ISE member, ORF is assessed 
and collected on all cleared customer contracts (after adjustment 
for CMTA); and (2) if the OCC clearing member is not a ISE member, 
ORF is collected only on the cleared customer contracts executed at 
ISE, taking into account any CMTA instructions which may result in 
collecting the ORF from a non-member.
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    The Exchange believes recommencing the ORF on February 1, 2022 at 
the same rate, unless options volumes or the Exchange's regulatory 
expense at that time warrant a proposed rule change, continues to 
ensure fairness by assessing higher fees to those members that require 
more Exchange regulatory services based on the amount of customer 
options business they conduct. As noted in prior ORF rule changes which 
set the current ORF rate of $0.0018 per contract side, regulating 
customer trading activity is much more labor intensive and requires 
greater expenditure of human and technical resources than regulating 
non-customer trading activity, which tends to be more automated and 
less labor-intensive. For example, there are costs associated with main 
office and branch office examinations (e.g., staff expenses), as well 
as investigations into customer complaints and the terminations of 
registered persons.\16\
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    \16\ See Securities Exchange Act Release No. 91420 (March 26, 
2021), 86 FR 17223 (April 1, 2021) (SR-ISE-2021-04) (Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change To Amend 
ISE's Pricing Schedule at Options 7, Section 9, Part C To Reduce the 
Options Regulatory Fee). The Exchange also noted in this rule change 
that, ``As a result, the costs associated with administering the 
customer component of the Exchange's overall regulatory program are 
materially higher than the costs associated with administering the 
non-customer component (e.g., member proprietary transactions) of 
its regulatory program. Moreover, the Exchange notes that it has 
broad regulatory responsibilities with respect to activities of its 
members, irrespective of where their transactions take place. Many 
of the Exchange's surveillance programs for customer trading 
activity may require the Exchange to look at activity across all 
markets, such as reviews related to position limit violations and 
manipulation. Indeed, the Exchange cannot effectively review for 
such conduct without looking at and evaluating activity regardless 
of where it transpires. In addition to its own surveillance 
programs, the Exchange also works with other SROs and exchanges on 
intermarket surveillance related issues. Through its participation 
in the Intermarket Surveillance Group (``ISG'') the Exchange shares 
information and coordinates inquiries and investigations with other 
exchanges designed to address potential intermarket manipulation and 
trading abuses. Accordingly, there is a strong nexus between the ORF 
and the Exchange's regulatory activities with respect to customer 
trading activity of its members.'' See 86 FR 17225.

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[[Page 44095]]

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. The Exchange does not believe 
that this proposal creates an unnecessary or inappropriate intra-market 
or inter-market burden on competition for several reasons. First, ORF 
has been amended several times since its inception in 2009.\17\ For 
example, most recently on April 1, 2021, ISE amended its ORF rate from 
$0.0020 to $0.0018 per contract side as of April 1, 2021. Members who 
either executed a transaction on ISE or cleared a transaction at OCC in 
the customer range would have been assessed a higher ORF for a 
transaction executed on ISE on March 31, 2021 ($0.0020 per contract 
side) as compared to April 1, 2021 ($0.0018 per contract side). There 
have been other ORF amendments prior to 2021 which have caused ISE to 
assess different ORF rates to members for different time periods 
causing members to have paid different ORFs since 2009. Second, ISE's 
regulatory costs have varied over time. For example, if ISE received 
payment of a fine from a disciplinary action, that fine would offset 
regulatory costs and would cause ISE to require less regulatory revenue 
for a particular period. The changing regulatory costs would impact the 
ORF assessed by ISE to members. In the past, the Exchange has amended 
ORF to be higher or lower,\18\ thereby impacting the amount paid by 
members in a calendar year. Third, options markets assess ORF at 
different rates. For instance, today, Nasdaq MRX, LLC (``MRX'') 
assesses a lower ORF of $0.0004 per contract side.\19\ MRX has assessed 
this rate since February 1, 2019.\20\ Depending on where a customer 
order is executed, a member could be assessed a much different ORF. For 
example, in the case where a customer order is sent to ISE and routed 
to MRX, and a non-member cleared that transaction, the ISE ORF of 
$0.0018 would not be assessed to the member who executed the 
transaction or cleared the transaction, rather the MRX rate of $0.0004 
per contract side would be assessed. In that same scenario presuming a 
non-member cleared the transaction, if the customer order could have 
executed on ISE instead of routing away the member would have been 
assessed the ISE ORF of $0.0018 per contract side. The customer, in 
that instance, would have no knowledge of where the order could be 
executed, as the liquidity profile of each exchange may differ at that 
exact moment. Therefore, members could be assessed a different ORF on 
the same day on the same transaction based on routing decisions, and in 
those cases the member would continue to benefit from the regulatory 
program available on each market and discover where the liquidity is 
available, irrespective of any ORF rate differentials across markets.
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    \17\ See also Securities Exchange Act Release Nos. 81345 (August 
8, 2017), 82 FR 37939 (August 14, 2017) (SR-ISE-2017-71); 70859 
(November 13, 2013), 78 FR 69501 (November 19, 2013) (SR-ISE-2014-
54); 69270 (April 2, 2013), 78 FR 20988 (April 8, 2013) (SR-ISE-
2013-28); 67087 (May 31, 2012), 77 FR 33535 (June 6, 2012) (SR-ISE-
2012-43); and 62012 (April 30, 2010), 75 FR 25306 (May 7, 2010) (SR-
ISE-2010-36).
    \18\ Id.
    \19\ See Securities Exchange Act Release Nos. 85127 (February 
13, 2019), 84 FR 5173 (February 20, 2019) (SR-MRX-2019-03).
    \20\ Of note, prior to February 1, 2019, MRX assessed no ORF 
thereby creating a calendar year where members were assessed no ORF 
for a period similar to what is proposed.
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    The Exchange believes recommencing the ORF on February 1, 2022 at 
the same rate, unless options volumes or the Exchange's regulatory 
expense at that time warrant a proposed rule change, does not create an 
undue burden on competition because the ORF applies to all customer 
activity, thereby raising regulatory revenue to offset regulatory 
expenses. It also supplements the regulatory revenue derived from non-
customer activity. Recommencing the assessment of the current ORF does 
not create an unnecessary or inappropriate inter-market burden on 
competition because it is a regulatory fee that supports regulation in 
furtherance of the purposes of the Act. The Exchange is obligated to 
ensure that the amount of regulatory revenue collected from the ORF, in 
combination with its other regulatory fees and fines, does not exceed 
regulatory costs.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

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

    The foregoing rule change is effective upon filing pursuant to 
Section 19(b)(3)(A) \21\ of the Act and subparagraph (f)(2) of Rule 
19b-4 \22\ thereunder, because it establishes a due, fee, or other 
charge imposed by the Exchange.
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    \21\ 15 U.S.C. 78s(b)(3)(A).
    \22\ 17 CFR 240.19b-4(f)(2).
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    At any time within 60 days of the filing of such 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 under 
Section 19(b)(2)(B) \23\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \23\ 15 U.S.C. 78s(b)(2)(B).
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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 protected]. Please include 
File No. SR-ISE-2021-16 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 No. SR-ISE-2021-16. 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

[[Page 44096]]

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 No. SR-ISE-
2021-16, and should be submitted on or before September 1, 2021.
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    \24\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\24\
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2021-17084 Filed 8-10-21; 8:45 am]
BILLING CODE 8011-01-P