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Federal Register / Vol. 86, No. 168 / Thursday, September 2, 2021 / Notices
market system, protect investors and the public interest, and not be designed to permit unfair discrimination between customers, issuers, brokers, or dealers; 39 and 3 not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.40
In temporarily suspending the Exchanges fee change, the Commission intends to further consider whether the proposed rule change is consistent with the statutory requirements applicable to a national securities exchange under the Act. In particular, the Commission will consider whether the proposed rule change satisfies the standards under the Act and the rules thereunder requiring, among other things, that an exchanges rules provide for the equitable allocation of reasonable fees among members, issuers, and other persons using its facilities; not permit unfair discrimination between customers, issuers, brokers or dealers; and do not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.41
Therefore, the Commission finds that it is appropriate in the public interest, for the protection of investors, and otherwise in furtherance of the purposes of the Act, to temporarily suspend the proposed rule change.42
IV. Proceedings To Determine Whether To Approve or Disapprove the Proposed Rule Change In addition to temporarily suspending the proposal, the Commission also hereby institutes proceedings pursuant to Sections 19b3C 43 and 19b2B
of the Act 44 to determine whether the proposed rule change should be approved or disapproved. Institution of proceedings does not indicate that the Commission has reached any conclusions with respect to any of the issues involved. Rather, the Commission seeks and encourages interested persons to provide additional comment on the proposed rule change to inform the Commissions analysis of whether to U.S.C. 78fb5.
U.S.C. 78fb8.
41 See 15 U.S.C. 78fb4, 5, and 8, respectively.
42 For purposes of temporarily suspending the proposed rule change, the Commission has considered the proposed rules impact on efficiency, competition, and capital formation. See 15 U.S.C. 78cf.
43 15 U.S.C. 78sb3C. Once the Commission temporarily suspends a proposed rule change, Section 19b3C of the Act requires that the Commission institute proceedings under Section 19b2B to determine whether a proposed rule change should be approved or disapproved.
44 15 U.S.C. 78sb2B.

approve or disapprove the proposed rule change.
Pursuant to Section 19b2B of the Act,45 the Commission is providing notice of the grounds for possible disapproval under consideration:
Whether the Exchange has demonstrated how the proposal is consistent with Section 6b4 of the Act, which requires that the rules of a national securities exchange provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities; 46
Whether the Exchange has demonstrated how the proposal is consistent with Section 6b5 of the Act, which requires, among other things, that the rules of a national securities exchange be designed to perfect the operation of a free and open market and a national market system and protect investors and the public interest, and not be designed to permit unfair discrimination between customers, issuers, brokers, or dealers; 47 and Whether the Exchange has demonstrated how the proposal is consistent with Section 6b8 of the Act, which requires that the rules of a national securities exchange not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. 48
As discussed in Section III above, the Exchange makes various arguments in support of the proposal. The Commission believes that there are questions as to whether the Exchange has provided sufficient information to demonstrate that the proposal to remove certain credits and increase monthly Trading Permit fees is consistent with the Act and the rules thereunder.
Under the Commissions Rules of Practice, the burden to demonstrate that a proposed rule change is consistent with the Act and the rules and regulations issued thereunder . . .
is on the SRO that proposed the rule change. 49 The description of a proposed rule change, its purpose and operation, its effect, and a legal analysis
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45 15 U.S.C. 78sb2B. Section 19b2B of the Act also provides that proceedings to determine whether to disapprove a proposed rule change must be concluded within 180 days of the date of publication of notice of the filing of the proposed rule change. See id. The time for conclusion of the proceedings may be extended for up to 60 days if the Commission finds good cause for such extension and publishes its reasons for so finding, or if the exchange consents to the longer period. See id.
46 15 U.S.C. 78fb4.
47 15 U.S.C. 78fb5.
48 15 U.S.C. 78fb8.
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of its consistency with applicable requirements must all be sufficiently detailed and specific to support an affirmative Commission finding,50 and any failure of an SRO to provide this information may result in the Commission not having a sufficient basis to make an affirmative finding that a proposed rule change is consistent with the Act and the applicable rules and regulations.51
The Commission is instituting proceedings to allow for additional consideration and comment on the issues raised herein, including as to whether the proposal is consistent with the Act, specifically, with its requirements that the rules of a national securities exchange provide for the equitable allocation of reasonable dues, fees, and other charges among its members, issuers, and other persons using its facilities; are designed to perfect the operation of a free and open market and a national market system, and to protect investors and the public interest; are not designed to permit unfair discrimination between customers, issuers, brokers, or dealers;
and do not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act; 52 as well as any other provision of the Act, or the rules and regulations thereunder.
V. Commissions Solicitation of Comments The Commission requests written views, data, and arguments with respect to the concerns identified above as well as any other relevant concerns. Such comments should be submitted by September 23, 2021. Rebuttal comments should be submitted by October 7, 2021.
Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b4, any request for an opportunity to make an oral presentation.53
The Commission asks that commenters address the sufficiency and merit of the Exchanges statements in support of the proposal, in addition to 50 See
id.
id.
52 See 15 U.S.C. 78fb4, 5, and 8.
53 15 U.S.C. 78sb2. Section 19b2 of the Act grants the Commission flexibility to determine what type of proceedingeither oral or notice and opportunity for written commentsis appropriate for consideration of a particular proposal by an SRO. See Securities Acts Amendments of 1975, Report of the Senate Committee on Banking, Housing and Urban Affairs to Accompany S. 249, S. Rep. No. 75, 94th Cong., 1st Sess. 30 1975.
51 See
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