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Federal Register / Vol. 86, No. 152 / Wednesday, August 11, 2021 / Notices
jbell on DSKJLSW7X2PROD with NOTICES2

Section 13.5 defines the term, Ministerial Amendment.
In the Notice, the Commission sought comment on whether amendments to Articles IX through XII of the CT Plan should be subject to the approval only of SROs, as provided for in Article XIII, Section 13.5b, rather than the full Operating Committee.880 The Commission received several comments in response. One commenter opposes this provision, stating that amendments to Articles IX Allocations, X Records and Accounting; Reports, XI
Dissolution and Termination, and XII
Exculpation and Indemnification should not be subject to the approval only of SROs.881
Another commenter agrees, expressing the concern that the CT Plan gives nearly unfettered discretion to the SROs to determine what decisions are appropriate for the Operating Committee and requests that the Commission require more detail in the Plan on the activities that will be solely decided by SROs.882 This commenter states, as an example, that decisions related to indemnification and the selection of Officers are highly material to the operation of the CT
Plan and as proposed require only a simple majority vote of the SRO
representatives.883 This commenter further argues that the CT Plan lacks sufficient detail regarding the nature and scope of decisions that are ministerial versus material.884
Consequently, this commenter argues that more detail needs to be provided on the types of decisions that would fall under the operation of the CT Plan as an LLC and modifications to the LLCrelated provisions of the CT Plan in order to ensure that non-SRO
representatives have an opportunity to participate in any material decisions related to the regulatory operations of the CT Plan.885 This commenter supports a requirement for the Operating Committee to adopt policies and procedures distinguishing operational interpretations of the CT
Plan from amendments required to be submitted to the Commission under Rule 608 of Regulation NMS.886
On the other hand, one commenter states that the amendment rights provided to the Members by this Section are limited to provisions of this Agreement that affect only the economic 880 See Notice, supra note 3, 85 FR at 64573
Question 52.
881 See Data Boiler Letter I, supra note 31, at 47.
882 Virtu Letter, supra note 30, at 2.
883 Id.
884 See id.
885 See id. at 5.
886 See id. at 34.

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interests of the Members Articles IX
and X, the protections of the Members as among themselves Article XII, and the ongoing existence of the CT Plan Article XI.887 This commenter argues that the provisions relating to the economic interests of the Members, exculpations and indemnification, and the ongoing operation of the CT Plan do not affect the dissemination of public information.888
The Commission disagrees with the view that the amendments covered by Section 13.5b do not affect the dissemination of public information and thus may be appropriately decided by the SROs alone, without Non-SRO
Voting Representative participation through Operating Committee consideration. Rather, the Commission believes that several of the provisions that the SROs propose should be subject to amendment without a filing with the Commission materially affect the NonSRO Voting Representatives that the Commission believes must be full members of the CT Plans Operating Committee. For example, for the reasons set forth above, the Commission finds that the exculpation and indemnification provisions of Article XII must be extended not only to the SROs, but to the Non-SRO Voting Representatives on the Operating Committee as well. As another example, Article X, Section 10.1 of the CT Plan sets forth the Operating Committees responsibilities with respect to the accounting procedures and records of the CT Plan, and the Commission believes that it is appropriate for the Operating Committee, including the Non-SRO Voting Representatives, to consider any proposed changes to those responsibilities.
More generally, the Commission believes that, to help ensure that all amendments to the CT Plan are consistent with its goals and purposes, as well as with the objectives of the Commissions Governance Order,889 the entire Operating Committee, rather than the SROs alone, should share in decision making relating to amendment of the CT Plan. And the Commission notes that all amendments to an NMS
plan must be filed with the Commission pursuant to Rule 608 of Regulation NMS.890
Accordingly, the Commission is modifying the CT Plan by deleting 887 See
Nasdaq Letter I, supra note 20, at 11.
id. at 1112.
889 See Governance Order, supra note 8, 85 FR at 2871420.
890 17 CFR 242.608. In fact, neither the CAT NMS
Plan nor the OPRA Plan contains a provision permitting the SROs to amend the LLC agreement for the plan outside of the Rule 608 process.
888 See
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proposed paragraph b of Section 13.5
to remove the ability of the SRO
members of the LLC to make amendments to certain provisions of the CT Plan without an augmented majority vote of the Operating Committee and to reiterate that all amendments to the CT
Plan must be filed with the Commission under Rule 608 of Regulation NMS. To be consistent, the Commission is also modifying subparagraph v of renumbered Section 13.5c to delete the language that reads, or upon approval by a majority of the Members pursuant to Section 13.5b, as applicable. The Commission finds that these modifications to Article XIII, Section 13.5 of the CT Plan are appropriate because they will help to ensure that the Operating Committee, as a whole, participates in all aspects of the governance of the CT Plan and that all amendments to the CT Plan are filed with the Commission as required by Rule 608 of Regulation NMS.
Finally, the Commission believes that the advance notice provided to the Operating Committee relating to any Ministerial Amendments filed with the Commission by the Chair of the Operating Committee pursuant to paragraph c of Section 13.5 should be provided in writing. Written notification should help to ensure that all members of the Operating Committee of the CT
Plan are adequately informed in a timely manner regarding even ministerial actions taken on behalf of the Operating Committee. Consequently, the Commission is modifying the text of renumbered Section 13.5b of Article XIII to require that advance notice to the Operating Committee be in writing, and finds that this modification is appropriate because it will help to ensure informed governance of the CT
Plan. For the reasons above, the Commission is approving Section 13.5, as modified.
f Successors Article XIII, Section 13.6 of the CT
Plan provides that the CT Plan shall bind and inure to the benefit of the Members and their respective legal representatives and successors. The Commission received no comment on Section 13.6, and is approving the provision as proposed.
g Limitation on Rights of Others Article XIII, Section 13.7 of the CT
Plan provides that the CT Plan shall not be enforceable by any creditor of the CT
Plan and shall not create any legal rights, remedies, or claims. The Commission received no comment on Section 13.7, and is approving the provision as proposed.

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