Joint Industry Plan; Order Instituting Proceedings To Determine Whether To Approve or Disapprove an Amendment to the National Market System Plan Governing the Consolidated Audit Trail

I. Introduction

On March 31, 2021, the Operating Committee for Consolidated Audit Trail, LLC (“CAT LLC” or the “Company”), on behalf of the following parties to the National Market System Plan Governing the Consolidated Audit Trail (the “CAT NMS Plan” or “Plan”): BOX Exchange LLC; Cboe BYX Exchange, Inc., Cboe BZX Exchange, Inc., Cboe EDGA Exchange, Inc., Cboe EDGX Exchange, Inc., Cboe C2 Exchange, Inc., Cboe Exchange, Inc., Financial Industry Regulatory Authority, Inc. (“FINRA”), Investors Exchange LLC, Long-Term Stock Exchange, Inc., Miami International Securities Exchange LLC, MEMX, LLC, MIAX Emerald, LLC, MIAX PEARL, LLC, Nasdaq BX, Inc., Nasdaq GEMX, LLC, Nasdaq ISE, LLC, Nasdaq MRX, LLC, Nasdaq PHLX LLC, The NASDAQ Stock Market LLC, New York Stock Exchange LLC, NYSE American LLC, NYSE Arca, Inc., NYSE Chicago, Inc., and NYSE National, Inc. (collectively, the “Participants,” “self-regulatory organizations,” or “SROs”) filed with the Securities and Exchange Commission (“SEC” or “Commission”) pursuant to Section 11A(a)(3) of the Securities Exchange Act of 1934 (“Exchange Act”), and Rule 608 thereunder, a proposed amendment (“Proposed Amendment”) to the CAT NMS Plan to implement a revised funding model (“Proposed Funding Model”) for the consolidated audit trail (“CAT”) and to establish a fee schedule for Participant CAT fees in accordance with the Proposed Funding Model (“Participant Fee Schedule”). The Proposed Amendment was published for comment in the Federal Register on April 21, 2021.

This order institutes proceedings, under Rule 608(b)(2)(i) of Regulation NMS, to determine whether to disapprove the Proposed Amendment or to approve the Proposed Amendment with any changes or subject to any conditions the Commission deems necessary or appropriate after considering public comment.

II. Background

On July 11, 2012, the Commission adopted Rule 613 of Regulation NMS, which required the SROs to submit a national market system (“NMS”) plan to create, implement and maintain a consolidated audit trail that would capture customer and order event information for orders in NMS securities. On November 15, 2016, the Commission approved the CAT NMS Plan. Under the CAT NMS Plan, the Operating Committee of the Company, of which each Participant is a member, has the discretion (subject to the funding principles set forth in the Plan) to establish funding for the Company to operate the CAT, including establishing fees to be paid by the Participants and Industry Members.

The Plan specified that, in establishing the funding of the Company, the Operating Committee shall establish “a tiered fee structure in which the fees charged to: (1) CAT Reporters that are Execution Venues, including ATSs, are based upon the level of market share; (2) Industry Members' non-ATS activities are based upon message traffic; and (3) the CAT Reporters with the most CAT-related activity (measured by market share and/or message traffic, as applicable) are generally comparable (where, for these comparability purposes, the tiered fee structure takes into consideration affiliations between or among CAT Reporters, whether Execution Venues and/or Industry Members).” Under the Plan, such fees are to be implemented in accordance with various funding principles, including an “allocation of the Company's related costs among Participants and Industry Members that is consistent with the Exchange Act taking into account . . . distinctions in the securities trading operations of Participants and Industry Members and their relative impact upon the Company resources and operations” and the “avoid[ance of] any disincentives such as placing an inappropriate burden on competition and reduction in market quality.”

On May 15, 2020, the Commission adopted amendments to the CAT NMS Plan designed to increase the Participants' financial accountability for the timely completion of the CAT (“Financial Accountability Amendments”). The Financial Accountability Amendments added Section 11.6 to the CAT NMS Plan to govern the recovery from Industry Members of any fees, costs, and expenses (including legal and consulting fees, costs and expenses) incurred by or for the Company in connection with the development, implementation and operation of the CAT from June 22, 2020 until such time that the Participants have completed Full Implementation of CAT NMS Plan Requirements (“Post-Amendment Expenses”). Section 11.6 establishes target deadlines for four critical implementation milestones (Periods 1, 2, 3 and 4) and reduces the amount of fee recovery available to the Participants if these deadlines are missed.

On April 21, 2021, the Nasdaq and Cboe Participants filed proposed rule changes to adopt a fee schedule to establish CAT fees applicable to their Industry Members in accordance with the Proposed Funding Model (the “Industry Member Fee Filings”). In the Industry Member Fee Filings, the Nasdaq and Cboe Participants stated that the fee schedule provisions will become operative upon the Commission's approval of the Proposed Amendment. On June 17, 2021, the Commission temporarily suspended the Nasdaq and Cboe Participants' Industry Member Fee Filings and instituted proceedings to determine whether those filings should be approved or disapproved.

III. Summary of Proposal

Under the Proposed Amendment, the Operating Committee proposes to revise certain aspects of the funding model set forth in Article XI of the CAT NMS Plan (the “Original Funding Model”). The Original Funding Model uses a bifurcated funding approach in which costs associated with building and operating the CAT would be borne by (1) Industry Members (other than ATSs that execute transactions in Eligible Securities (“Execution Venue ATSs”)) through fixed tiered fees based on message traffic for Eligible Securities, and (2) Participants and Industry Members that are Execution Venue ATSs for Eligible Securities through fixed tiered fees based on market share. The Operating Committee proposes to amend the CAT NMS Plan to adopt the Proposed Funding Model. The Proposed Funding Model would continue to require many of the same elements as the Original Funding Model, including the bifurcated funding approach, and the use of market share and message traffic. The Proposed Funding Model, however, would revise the Original Funding Model in certain ways, including (1) dividing the CAT costs between Participants and Industry Members, rather than between Execution Venues and Industry Members (other than Execution Venue ATSs); (2) removing share volume in OTC Equity Securities from the calculation of market share for national securities associations; (3) eliminating the use of tiers in calculating CAT fees for Participants and Industry Members; (4) removing from the CAT NMS Plan funding principles the requirement that the fees charged to CAT Reporters with the most CAT-related activity be generally comparable; (5) eliminating references to fixed fees for Participants and Industry Members; (6) adopting certain minimum and maximum CAT fees for Industry Members and Participants; and (7) imposing certain discounts for market making activity when calculating Industry Member CAT fees.

The Operating Committee also proposes to adopt a fee schedule to establish the CAT fees applicable to Participants based on the Proposed Funding Model. The Participant Fee Schedule would establish the allocation percentages and other variables for calculating the CAT fees under the Proposed Funding Model.

A. Proposed Funding Model

1. Categorization of Alternative Trading Systems

The Original Funding Model employs a bifurcated approach in which costs associated with building and operating the CAT would be borne by (1) Participants and Industry Members that are Execution Venue ATSs for Eligible Securities through fees based on market share, and (2) Industry Members (other than Execution Venue ATSs) through fees based on message traffic. Under the Proposed Funding Model, the concept of an Execution Venue would be eliminated, and CAT costs would be divided between Participants as a group and Industry Members as a group; Execution Venue ATSs would be treated like other Industry Members, instead of like Participants. The Operating Committee explains that this would simplify the Proposed Funding Model by requiring all Industry Members (instead of Industry Members other than Execution Venue ATSs) to pay fees based on message traffic and would address any concerns that treating Execution Venue ATSs as Participants would create a barrier to entry for smaller ATSs. Accordingly, under the Proposed Amendment, the Operating Committee proposes to delete the definition of the term “Execution Venue” and related provisions from the CAT NMS Plan.

2. Treatment of OTC Equity Securities

The Original Funding Model includes reported share volume in OTC Equity Securities in the calculation of market share for national securities associations. The Operating Committee proposes to delete references to OTC Equity Securities from Section 11.3(a)(i) of the CAT NMS Plan. Accordingly, under the Proposed Funding Model, the calculation of market share for national securities associations would be based solely on the share volume of trades reported in NMS Stocks. The Operating Committee explains that the inclusion of OTC Equity Securities share volume in the calculation of market share would likely subject FINRA to higher fees since FINRA would be assessed CAT fees based on market share calculated by share volume, noting that many OTC Equity Securities are priced below one dollar and transactions in such OTC Equity Securities tend to involve larger quantities of shares than transactions in NMS Stocks.

3. No Tiered Fees

The Original Funding Model requires the use of tiered fees for Industry Members and Participants. The Operating Committee proposes to amend Sections 11.1(d), 11.2(c), 11.3(a) and 11.3(b) of the CAT NMS Plan to eliminate the concept of tiered fees from the CAT NMS Plan. Accordingly, under the Proposed Funding Model, each Industry Member would pay a fee based on its percentage of total Industry Member message traffic (subject to proposed market maker message traffic discounts, a minimum fee and a maximum fee ), and each Participant would pay a fee based on market share. The Operating Committee believes that tiered fees require continued reassessment of changes in message traffic, and that these assessments would be subjective and overly complex.

4. Elimination of Fee Comparability Requirement From the CAT NMS Plan Funding Principles

Section 11.2(c) of the CAT NMS Plan requires the Operating Committee to establish a fee structure in which the fees charged to CAT Reporters with the most CAT-related activity (measured by market share and/or message traffic, as applicable) are generally comparable. Section 11.2(c) explains that for comparability purposes, the tiered fee structure takes into consideration affiliations between or among CAT Reporters. The Operating Committee proposes to remove this requirement from Section 11.2(c) of the Plan. According to the Operating Committee, the comparability provision was used to determine tiers under the Original Funding Model; however, since the Operating Committee proposes to remove fee tiering from the Proposed Funding Model, they believe this provision is no longer relevant.

5. No Fixed Fees

The Operating Committee proposes to amend Sections 11.3(a) and (b) of the Plan to eliminate references to “fixed fees” to be paid by Industry Members and Participants from the CAT NMS Plan. Accordingly, under the Proposed Funding Model, the CAT fees to be paid by Industry Members would vary in accordance with their message traffic and the CAT fees to be paid by the Participants would vary in accordance with their market share.

6. Minimum and Maximum Fees

a. Minimum and Maximum Industry Member CAT Fees

The Operating Committee proposes to amend Section 11.3(b) of the CAT NMS Plan to provide that each Industry Member would be subject to a base minimum Industry Member CAT fee (“Minimum Industry Member CAT Fee”) and a maximum Industry Member CAT fee (“Maximum Industry Member CAT Fee”). In the Participants' description of the Proposed Amendment, the Operating Committee states that the Minimum Industry Member CAT Fee would be $125 per quarter for an Industry Member whose CAT fee would be less than $125 per quarter, even if it has not yet begun to report to the CAT. If any Industry Member is required to pay the Minimum Industry Member CAT Fee, the total additional amount paid by all such Industry Members over the amount they otherwise would have paid as a result of their message traffic calculation would be discounted from all Industry Members other than those that were subject to a Minimum Industry Member CAT Fee in accordance with their message traffic percentage (“Minimum Industry Member CAT Fee Re-Allocation”). The Operating Committee explains that the Minimum Industry CAT Fee is intended to ensure that all Industry Members meaningfully contribute to the funding of the CAT.

The Operating Committee also states that the Maximum Industry Member CAT Fee would be the fee calculated based on 8% of the total message traffic for Industry Members. If an Industry Member's fee is subject to the Maximum Industry Member CAT Fee, any excess amount which the Industry Member would have paid as a fee above such Maximum Industry Member CAT Fee will be re-allocated among all Industry Members (including any Industry Members subject to the Maximum Industry Member CAT Fee and any Industry Members subject to the Minimum Industry Member CAT Fee) in accordance with their percentage of total message traffic (“Maximum Industry Member CAT Fee Re-Allocation”). The Operating Committee explains that the Maximum Industry Member CAT Fee is intended to act as a cap on fees for certain Industry Members that, based on message traffic alone, may be subject to “a significant allocation of Total CAT Costs.”

b. Minimum Participant Fee

The Operating Committee proposes to amend Section 11.3(a) of the CAT NMS Plan to impose a minimum fee to be payable by each Participant (“Minimum Participant Fee”) in addition to fees based on market share. The Operating Committee explains that this fee would “ensure that all Participants provide a meaningful contribution to the funding of the CAT” and facilitate billing and other administrative functions.

c. Maximum Equities Participant Fee

The Operating Committee proposes to amend Section 11.3(a)(i) of the CAT NMS Plan to provide that any Participant that is a national securities association shall pay a maximum fee established by the Operating Committee (“Maximum Equities Participant Fee”) instead of the higher fee calculated based on such Participant's market share. If a Participant's fee is limited to such maximum fee, any excess amount which the Participant otherwise would have paid as a fee above such maximum amount will be re-allocated among all Equities Participants, including any Equities Participants that are subject to the maximum fee, in accordance with their market share. The Operating Committee explains that FINRA could have a significant allocation of the CAT fees due to the large volume of NMS Stock activity subject to trade reporting on FINRA facilities, so the Maximum Equities Participant Fee would cap the costs allocated to FINRA. In addition, the Operating Committee states that, as one of the largest regulatory users of CAT, FINRA should pay a proportionate percentage of the CAT fees commensurate with its market share, and that market share is a “fair and reasonable basis for assessing regulatory usage, expense and burden among the Participants.”

7. Market Maker Discounts

The Operating Committee proposes to amend Section 11.3(b) of the CAT NMS Plan to add market maker message traffic discounts to the Proposed Funding Model. Under the Original Funding Model, there is no distinction between the treatment of message traffic for market maker Industry Members and message traffic for non-market maker Industry Members for purposes of calculating Industry Member CAT fees. The Operating Committee explains that the proposed discounts are intended to address concerns raised previously that treating market maker message traffic the same as other message traffic for purposes of calculating Industry Member CAT fees would disproportionately impact market makers because of their continuous quoting obligations and result in an undue or inappropriate burden on competition or a reduction in liquidity and market quality. The Operating Committee believes that the proposed discounts would lower CAT fees for market makers and encourage their provision of liquidity to the market.

In the Participants' description of the Proposed Amendment, the Operating Committee states that Options Market Maker message traffic would be discounted based on the trade-to-quote ratio for options when calculating the message traffic of an Industry Member that is an Options Market Maker, and that the trade-to-quote ratio for the Options Market Maker discount would be calculated each quarter based on the prior quarter's CAT Data. The proposed discount would be calculated by dividing the adjusted trade count by the total number of quotes received by the securities information processors (“SIP”) from an exchange. Each Options Market Maker's CAT fee would be calculated by multiplying its discounted percentage of total Industry Member message traffic during the relevant time period by the Industry Member Allocation, subject to the Minimum Industry Member CAT Fee and the Maximum Industry Member CAT Fee.

Under the Proposed Funding Model, when calculating the message traffic of an Industry Member that is an equity market maker in NMS Stocks (“Equity Market Maker”), its discounted market making message traffic count would be calculated by multiplying its market making message traffic in NMS Stocks by the NMS Stock trade-to-quote ratio. In the Participants' description of the Proposed Amendment, the Operating Committee states that the trade-to-quote ratio would be calculated each quarter based on the prior quarter's CAT Data. The proposed discount would be calculated by dividing the adjusted trade count by the total number of quotes received by the SIP from an exchange. The Equity Market Maker's CAT fee would be calculated by multiplying its discounted percentage of total Industry Member message traffic during the relevant time period by the Industry Member Allocation, subject to the Minimum Industry Member CAT Fee and the Maximum Industry Member CAT Fee. The discounted message traffic of Options Market Makers and Equity Market Makers would be counted as part of total Industry Member message traffic.

B. Participant Fee Schedule

1. Total CAT Costs

Under the Proposed Funding Model, the CAT fees for the relevant period would be designed to cover the total CAT costs associated with developing, implementing and operating the CAT for the relevant period (“Total CAT Costs”). In the proposed Participant Fee Schedule, the Operating Committee proposes to define Total CAT Costs as “the total budgeted costs for the CAT for the relevant year.” In addition:

The total budgeted costs for the CAT for the relevant year shall be the total CAT costs set forth in the annual operating budget approved by the Operating Committee pursuant to Section 11.1(a) of the CAT NMS Plan. The total budgeted costs for the CAT for the relevant year may be adjusted on a quarterly basis as the Operating Committee reasonably deems appropriate for the prudent operation of the Company. To the extent that the Operating Committee adjusts the total budgeted costs for the CAT for the relevant year during its quarterly budget review, the adjusted budgeted costs for the CAT will be used in calculating the remaining CAT fees for that year.

The Operating Committee explains that using Total CAT Costs budgeted for the year, rather than already incurred CAT costs, would allow the Company to collect fees before bills become payable. The Operating Committee notes that, pursuant to Section 11.1(c) of the CAT NMS Plan, any surpluses collected will be treated as an operational reserve to offset future fees and will not be distributed to the Participants as profits.

2. 75%-25% Allocation Between Industry Members and Participants

The Proposed Funding Model contemplates allocating CAT costs between Participants and Industry Members to permit the calculation of CAT fees based on market share for Participants and based on message traffic for Industry Members. The Operating Committee proposes to implement this allocation through a 75%-25% allocation between Industry Members and Participants. The Participant CAT fees that are a part of the proposed Participant Fee Schedule—Appendix B to the Proposed Amendment—would apply this allocation to Participants. Participants would file proposed rule changes to apply this allocation to Industry Members. In calculating CAT fees for the relevant period under the Proposed Funding Model, Industry Members as a group would pay 75% of the Total CAT Costs for the relevant period (“Industry Member Allocation”) and Participants as a group would pay 25% of the Total CAT Costs for the relevant period (“Participant Allocation”).

In proposing a 75%-25% allocation between Industry Members and Participants, the Operating Committee states that it considered a variety of different potential allocations between Industry Members and Participants. For example, the Operating Committee states that it considered alternatives in which Participants paid larger contributions than 25% of the total CAT costs (e.g., a 50%-50% allocation between Industry Members and Participants) and alternatives in which Participants paid smaller contributions than 25% of the total CAT costs. In the scenario where the Participants paid larger contributions than the 25% allocation, the Operating Committee believed that this was not fair or equitable to the Participants. The Operating Committee came to this conclusion by assessing the number of Industry Members compared to Participants, noting that “there are only 25 Participants and approximately 1,237 Industry Members, as of December 2020”, and analyzing the total revenue, noting that “Participants only represented approximately 4% of the total CAT Reporter revenue; Industry Members represented 96% of the total CAT Reporter revenue.” Thus, the Operating Committee determined that allocating more than 25% of the total CAT costs to the Participants was not fair and equitable. Similarly, the Operating Committee did not believe that the revenue based allocation approach would be fair to the Industry Members because it would impose such a significant percentage (96%) of CAT costs on Industry Members. Additionally, the Operating Committee determined that there would be practical difficulties in assessing the appropriate revenue figures for all CAT Reporters. Based upon its analysis, the Operating Committee decided that alternative approaches based upon revenue were not appropriate and could potentially have unfair impacts on both the Industry Members and the Participants. Ultimately, the Operating Committee believes that the 75%-25% allocation will create a more equitable fee split because the Industry Members with the most message traffic and the Participant complexes with the most market share would pay comparable CAT fees. The Operating Committee analyzed data from the fourth quarter of 2020, and determined that the three Industry Members with the most message traffic and the Participant complexes with the highest CAT fees would pay annual CAT fees in a similar range of five to six million dollars.

3. Participant CAT Fees

As described above, the Proposed Funding Model provides that the Operating Committee shall establish a minimum fee to be payable by each Participant in addition to a fee based on market share. In the proposed Participant Fee Schedule, the Operating Committee establishes 0.75% of the Participant Allocation as the Minimum Participant Fee regardless of market share. The total Minimum Participant Fees to be paid by each Participant would be subtracted from the Participant Allocation to determine the “Adjusted Participant Allocation.”

The proposed Participant Fee Schedule provides that the Equities Participant Allocation would be 60% of the Adjusted Participant Allocation and the Options Participant Allocation would be 40% of the Adjusted Participant Allocation. The Operating Committee explained that this allocation was determined through negotiations among the Participants.

Each Participant would pay a quarterly Participant CAT fee to recover the costs of the CAT going forward. For Equities Participants, the quarterly Participant CAT Fee would be calculated by multiplying the Equities Participant Allocation by each Equities Participant's percentage of total market share of NMS Stocks for all Equities Participants for the prior quarter, subject to the Maximum Equities Participant Fee (if applicable), and in addition to the Minimum Participant Fee. For Options Participants, the quarterly Participant CAT fee would be calculated by multiplying the Options Participant Allocation by each Options Participant's percentage of total market share in Listed Options for the prior quarter, in addition to the Minimum Participant Fee.

The quarterly Participant CAT fee would be a quarterly CAT fee based on market share from the prior quarter and the allocation of Total CAT Costs under the Proposed Funding Model for the relevant year. The Operating Committee proposes a fee schedule to implement the quarterly Participant CAT fee whereby each Participant would be assessed a CAT fee, on a quarterly basis, that is 25% of 1/4th of the total budgeted annual CAT costs for the relevant year, using CAT Data to calculate market share from the prior quarter of the relevant year.

Under the Proposed Funding Model, FINRA, as a national securities association, would be subject to the Maximum Equities Participant Fee as set by the Operating Committee. The Operating Committee proposes to establish in the Participant Fee Schedule a Maximum Equities Participant Fee equal to the greater of (x) 20% of the Equities Participant Allocation or (y) the highest CAT fee required to be paid by any other Equities Participant plus 5% of such highest CAT fee. Accordingly, as discussed above, FINRA would pay its quarterly Participant CAT fee based on its market share in NMS Stocks, subject to the Maximum Equities Participant Fee.

4. Collection of Fees

The Participants' description of the Proposed Amendment states that the Operating Committee proposes to establish a system for the collection of CAT fees pursuant to Section 11.4 of the CAT NMS Plan. The Company will provide each Participant with an invoice setting forth the quarterly Participant CAT fee for each payment period. Each Participant will pay its CAT fees to the Company via the centralized system for the collection of CAT fees.

IV. Summary of Comments

The Commission received 19 comment letters on the Proposed Amendment. 15 comment letters object to the Proposed Amendment and one comment letter supports the Proposed Amendment. In addition, the Commission received two comment letters requesting data from the Operating Committee, one comment letter requesting data from the Company, and one comment letter from the Operating Committee providing additional details on an illustrative example in Exhibit B to the Proposed Amendment, and two response letters from the Operating Committee.

Scope of Costs To Be Recovered From Industry Members

Several commenters question the scope of the CAT costs proposed to be recovered from Industry Members. Two commenters state that Industry Members should only be responsible for the direct costs to build and operate the CAT, not the Participants' costs of doing business as SROs, such as insurance and consulting costs. One commenter states that the Exchange Act and Rule 613 do not even require the CAT NMS Plan to impose fees on Industry Members, and that the Participants have failed to justify an “additive CAT fee,” and notes the Participants were exclusively responsible for developing the CAT and for making decisions about the implementation costs for the CAT. Another commenter asks for justification for why Industry Members should bear the costs of the CAT build when they had no involvement in the process.

In response to comments objecting to the imposition of CAT costs on Industry Members, the Operating Committee states that Industry Members should be required to pay CAT costs in accordance with Rule 613 and the CAT NMS Plan. The Operating Committee adds that, because all market participants would benefit from the enhanced regulatory oversight provided by the CAT, Industry Members and Participants should both contribute to covering its costs.

Six commenters object to the proposed imposition of historical costs on Industry Members. Several commenters note that Industry Members had no input into or control over the decisions resulting in the historical costs, including the selection of Thesys Technologies, LLC as the initial plan processor, and the subsequent transition to FINRA as the plan processor. One commenter states, “the Participants must meet a high bar for the Commission to alter course and support any proposed rule changes that require non-Participants to pay the Thesys costs.” One commenter questions the rationale for requiring Industry Members to pay 75% of the cost of the transition to FINRA, explaining that FINRA is completely funded by the industry. Two commenters object to requiring Industry Members to pay the legal and consulting fees incurred by Participants prior to the approval of the CAT NMS Plan. Two commenters criticize the Proposed Amendment for requiring new Industry Members to pay CAT fees to recover historical costs, while exempting new Participants from such a requirement.

In response to comments questioning the scope of the costs to be recovered from Industry Members, the Operating Committee states that the recovery from Industry Members of the historical costs, Thesys-related costs and third-party expenses (including legal, consulting and audit expenses) is consistent with the CAT NMS Plan and the Exchange Act. The Operating Committee states that, when approving the CAT NMS Plan, the Commission noted that the Exchange Act permits the Participants to charge their members fees to fund their self-regulatory obligations and that the Plan funding model was designed to impose fees reasonably related to the Participants' self-regulatory obligations since the fees would be directly associated with the costs to build and maintain the CAT. Additionally, the Operating Committee states that the Commission considered that the Participants could recover the costs of creating and funding the CAT central repository in the adopting release for Rule 613. The Operating Committee explains that these costs are critical to the creation, implementation and maintenance of the Plan and therefore should be within the scope of CAT fees.

Lack of Industry Member Input

Several commenters express concern that the proposal was developed without the involvement of Industry Members. One commenter states that it is “incredulous of the process used to construct a proposed allocation model in which Industry Members are allocated 75% of the expenses yet had no meaningful input into the model's development.” Another commenter opines that Industry Members are being required to shoulder most of the costs of the CAT without having had any insight into the costs. Two commenters note the lack of representation of Industry Members on the Operating Committee. One commenter believes that the technical expertise of the industry should be involved in the development of a new cost allocation proposal that contains “a full explanation of the proposed operating costs and . . . an appropriately detailed public disclosure of the operating budget.” Another commenter suggests that the Commission ask the Participants to engage with the industry “to establish a workable allocation methodology that is simple, predictable and aligns responsibility for funding regulatory infrastructure with receiving economic benefits of the marketplace.”

In response to comments noting a lack of industry participation in the development of the Proposed Funding Model, the Operating Committee explains that the CAT Advisory Committee and the public notice and comment processes afforded by Rule 608 of Regulation NMS and Section 19 of the Exchange Act have provided Industry Members and other market participants the opportunity to express their views on the funding model. With respect to the comments expressing concern over a lack of Industry Member representation on the Operating Committee, the Operating Committee states that Industry Members can provide meaningful input on CAT matters through the current governance structure without compromising Commission and SRO oversight of Industry Members.

Participant Conflicts of Interest

Six commenters believe that the Participants have conflicts of interest that are reflected in the cost allocation proposed for the Participants and Industry Members. Two commenters believe that the Participants are attempting to further their commercial interests through the proposal at the expense of their Industry Member competitors. One commenter believes that the Participants are conflicted when determining how much of their own costs they should pay and suggests greater transparency to expose any Participant conflicts. Another commenter states, “[t]o permit for-profit exchanges to allocate 75% of the costs of the CAT to Industry Members furthers the Participants' commercial interests at the expense of the Industry Members, who have no choice but to pay such fees or else be subject to regulatory actions by the Participants.” This commenter suggests that the Commission require the Participants to resubmit a proposal with a transparent analysis and requests that Industry Members be permitted adequate representation on the Operating Committee.

In response to the comments regarding potential conflicts of interests behind the proposed cost allocation for Participants and Industry Members, the Operating Committee states that it disagrees with the comments and notes that the CAT NMS Plan contains measures to protect against potential conflicts of interest related to CAT fees, “including the fee filing requirements under the Exchange Act and operating the CAT on a break-even basis.”

Lack of Transparency

Several commenters express concern that the Proposed Funding Model lacks sufficient transparency into the operating budget as well as the costs proposed to be recovered by the CAT fees. One commenter believes the lack of cost data would make it impossible for the Commission and Industry Members to determine whether the CAT is operating efficiently. The commenter adds that detailed cost information would be useful for Industry Members to evaluate whether certain of their activities are causing the CAT to incur higher operating costs, and consequently causing increases in their own CAT fees. This commenter added that it is impossible to evaluate whether the Proposed Funding Model is consistent with the Exchange Act due to lack of information; in particular, details concerning sources of the costs and the operating budget. Similarly, another commenter suggests the provision of non-proprietary cost information to allow meaningful input from Industry Members. Another commenter believes that it “feels like we are being asked to hand over [a] blank check with the amount to be filled in later.” One commenter states, “the Amendment is virtually silent on the use of funds and offers no budget for the CAT's ongoing operation.”

Commenters request detailed information on the historical costs and the operating budget. One commenter recommends that the Proposed Amendment disclose its costs and technical requirements, and detail the historical costs and projected annual budget for the Plan operating expenses, professional services expenses, and plan processor expenses. The commenter recommends that the Participants make the annual budget public in the future. Another commenter states that the Proposed Amendment lacks an explanation for the 2021 estimated cost of $133 million, including the scale of CAT processing, number of reported transactions, data storage sizes and processing performed. The commenter states that an operating budget is necessary to determine how much of CAT costs is variable based on message traffic. The commenter recommends that the Operating Committee propose a new cost allocation plan that includes a full accounting of the historical costs and justification for charging these costs to Industry Members. The commenter also recommends that the new proposal explain its proposed operating costs and publicly disclose its operating budget.

Another commenter notes that the Proposed Amendment lacks detail on the historical CAT assessment costs and requests the Participants to provide the opportunity to review the costs incurred before the CAT NMS Plan was approved, noting that Industry Members should be permitted “to refute the validity of any cost and its allocation to Industry Members.” Another commenter states that the Proposed Amendment provides no transparency into historical and annual costs. One commenter requests the Commission to require the Participants to provide a cost-sharing structure with greater transparency, including a full accounting of historical costs and a detailed public explanation of the proposed operating costs. The commenter urges greater transparency in the operating budget, the cost allocation model, and on variable costs, such as messaging costs, and fixed costs, such as payroll costs.

Commenters also request a breakdown of the estimated CAT costs and operating budget. Two commenters request a copy of the 2021 operating budget with quarterly updates including actual and revised projections. One of the commenters also requests data to permit each Industry Member to calculate its fees, including the data used by the Operating Committee to calculate the estimates in Exhibit B to the Proposed Amendment. In a response, the Operating Committee provides the following data: (1) The budgeted Total CAT Costs for 2021; (2) total Industry Member message traffic counts, including the total message counts for Options Market Makers and Equity Market Makers, used in the proposal's Exhibit B; (3) unrounded trade-to-quote ratios for Listed Options and NMS Stocks; and (4) the method used to calculate an Industry Member's quarterly CAT fees. The Operating Committee states that Industry Members can contact FINRA CAT to learn which of the anonymized Industry Member information in Exhibit B represents its traffic, as well as its total message traffic count and percentage or number of its reported events that were treated as events of Options Market Makers or Equity Market Makers. The Operating Committee also agrees to provide information to permit an Industry Member to calculate its actual CAT fees on an ongoing basis. Subsequently, the first commenter requests further information to understand the impact of the funding proposal and help each Industry Member reconcile the data it received from the Operating Committee and its internal records. The second commenter finds the response from the Operating Committee insufficient and requests a copy of the 2021 operating budget and any quarterly updates and projected costs, a breakdown of fixed and variable expenses, and provision to Industry Members of data used to support the selected funding model and the funding models that were rejected.

Several commenters believe the lack of transparency prevents Industry Members from estimating their costs and fees. One commenter believes that the Proposed Amendment lacks information needed by Industry Members to calculate their fees as well as to analyze the fairness and accuracy of the funding model. The commenter notes that 75 of 1,237 Industry Members would be allocated 99% of Industry Member fees, and that the Proposed Amendment claims that this is fair without factual support. One commenter acknowledges the data subsequently provided in the response from the Operating Committee and suggests that the Participants regularly provide updated message traffic data to Industry Members to allow them to estimate their CAT fees. Another commenter opines that the supplementary message traffic data and the 2021 budget information provided by the Operating Committee is insufficient to allow Industry Members to project their CAT fees. One commenter suggests that cost recovery should have “transparent inputs” that would permit Industry Members to predict their costs and understand the costs of their actions.

In response to comments requesting additional transparency into CAT costs, the Operating Committee states that it has made publicly available substantial annual cost data by providing, upon request, its audited financial statements from the inception of Consolidated Audit Trail LLC and CAT NMS, LLC through 2020, as required by Section 9.2(a) of the CAT NMS Plan. The Operating Committee explains that the audited financial statements contain the following cost categories: “technology costs, legal, amortization of developed technology, consulting, insurance, professional and administration, and public relations.” The Operating Committee also states that the Proposed Funding Model would provide additional cost transparency through the provision of the operating budget at the start of each year, as well as the budgeted Total CAT Costs to be used in calculating the quarterly CAT fees, and any quarterly budget adjustments. The Operating Committee adds that it proposes to provide additional cost information to the industry through webinars, among other methods, and notes the cost-related information it provided in its May 5th letter.

Several commenters believe the Proposed Amendment does not properly explain increases in historical and annual costs in excess of prior estimates. One commenter states, “[t]here may well be appropriate—or at least understandable—reasoning for historical and ongoing costs to greatly exceed expectations, and that is for the Participants to explain and the Commission to review as part of its oversight of the SROs.” Two commenters ask if any corresponding benefits accompany the increased cost estimates. One commenter expresses concern that the Participants have no accountability for the costs of the project. Another commenter requests assurances that the CAT will not become an “ever-growing expense” for the industry and investors. Another commenter, a proprietary trading firm, states that it “captures real time market data feeds from over 100 venues around the world, in a variety of different products . . . The processing of this historical market data might reasonably be compared to the kind of processing that the CAT is expected to do . . . While we do not claim that this is a perfect comparison, we do posit that the cost to build and maintain the CAT should be reasonably comparable.” The commenter states that its annual cost for this platform is ten times less than the cost provided in the Proposed Amendment.

In response to comments questioning the increases in CAT costs from prior estimates, the Operating Committee explains that data processing and storage costs are the primary CAT cost drivers and that these costs have increased significantly each year. First, the Operating Committee states that these costs are directly related to data volumes reported to the CAT and that the markets have experienced record high volumes, noting that in 2019 and 2021, data volumes were five times greater than estimated. To address the increased volume, the CAT's storage and computing needs have accordingly increased. Second, the Operating Committee explains that the phased introduction of CAT reporting and functionality results in “a substantial increase in message traffic, processing complexity and storage requirements.” Third, the Operating Committee states that the processing and storage of the many complex reporting scenarios relating to Industry Member market activity require complicated algorithms that result in “significant data processing and storage costs.” Finally, the Operating Committee notes that the combination of record CAT Data volumes with the stringent performance timelines and operational requirements applicable to the processing of CAT Data do not allow much flexibility for cost reductions.

Some commenters believe that the Proposed Funding Model lacks the transparency needed to incentivize the Participants to manage CAT costs efficiently. One commenter states the lack of transparency precludes the Operating Committee's accountability and suggests a full audit of the CAT's historical costs, ongoing budget and a comparison to its estimated benefits. Another commenter believes that allowing Industry Members greater visibility into CAT's expenses would increase the Participants' accountability to manage costs.

In response to comments urging more transparency to ensure the Participants manage CAT Costs efficiently, the Operating Committee states that it “has a strong focus on cost management and is significantly incented to keep costs at an appropriate level.” The Operating Committee notes that it actively pursues cost saving measures and has a Cost Management Working Group to address cost management needs. Additionally, the Operating Committee states that the plan processor regularly reviews options to lower compute and storage needs and works with CAT technology providers to provide services in a cost-effective manner.

Finally, one commenter states that the Proposed Amendment needs to explain what would happen if actual CAT operating costs exceed the budget and what would happen if the CAT becomes over-budget. The commenter believes that a revised amendment should provide further details on the CAT budget and potential budget surpluses. In response to the comment, the Operating Committee explains that it would address budget shortfalls or excess fees through updates to the budgets and operational reserves. The Operating Committee states that to recover the costs of CAT on an ongoing basis, it will use the costs in the annual operating budget as the Total CAT Costs to be used to calculate CAT fees, and that these budgeted costs may be adjusted on a quarterly basis to address any changes to the budget. The Operating Committee states that if CAT fees exceed the CAT costs, despite quarterly budget adjustments, any surplus would be treated as an operational reserve to offset fees in future payments, in accordance with Section 11.1(c) of the CAT NMS Plan. If CAT fees are less than CAT costs, the Operating Committee states that it “may address the shortfall by using the operational reserve, including the amount of the shortfall in future fees and/or seeking to recover the costs via other measures in accordance with the Exchange Act.”

Allocation of Costs Between Industry Members and Participants

Many commenters raise concerns about the proposed allocation of costs between Industry Members and Participants. Several commenters argue that the allocation lacks justification for the decision to recover 75% of Total CAT Costs from Industry Members and 25% from Participants. Two commenters believe the allocation to Industry Members is “arbitrary and unsupportable” under the Exchange Act. One commenter challenges the Participants' justification for the allocation—that there are more Industry Members than Participants and Industry Members receive much more revenue than Participants—as not providing a rational basis on which to claim that the Proposed Amendment provides for a fair allocation of reasonable fees and does not impose an undue burden on competition. Another commenter states, “[i]t is unclear from the proposal why the ability to pay is a corollary to CAT costs and an appropriate factor in justifying the split.” One commenter states that costs are not deemed reasonable because a party can afford the costs, because the costs are not large enough to be material, or because the costs can be shared among thousands of Industry Members. Another commenter believes that the cost allocation should have focused on what market participants should pay based on costs and benefits, rather than ability to pay based on aggregate revenues.

One commenter believes the cost allocation is inequitable and an undue burden on Industry Members. The commenter believes that CAT fees should only be imposed on beneficiaries of CAT services, allocated in proportion to benefit received. The commenter believes that market participants that pose higher risks and potential conflicts of interest should pay higher fees than other market participants.

One commenter approves the proposed elimination of tiering, but expresses concern at the allocation, stating that allocating set percentages of total costs to one group over another is the wrong approach. The commenter criticizes the Proposed Amendment for basing the allocation on ensuring that the highest paying Industry Members pay the same as the highest paying Participants. Additionally, this commenter believes that Participants would have no incentive to manage costs if they are only responsible for 25% of Total CAT Costs. For the same reason, another commenter believes there is little incentive for Participants to justify their historical costs or manage a reasonable and efficient operating budget. The commenter believes the cost allocation methodology differences between the Industry Members and the Participants warrants further discussion and transparency.

One commenter notes that the Proposed Funding Model does not explain how the 75% allocation to Industry Members relates to overall CAT costs resulting from Industry Member reporting and therefore may not be supported by Section 11.2(a) and Section 11.2(b) of the CAT NMS Plan. Another commenter suggests a 50%-50% cost allocation between Industry Members and Participants and argues that any allocation should be transparent and predictable and supported by evidence. The commenter suggests that Industry Member costs be allocated based on the value any Industry Member receives from the market. One commenter believes the proposal lacks information for commenters to understand how CAT costs are allocated across asset classes. The commenter suggests the creation of a predictable cost allocation methodology reached through engagement with Industry Members that aligns costs with the receipt of benefits from the market.

One commenter believes the proposed allocation is arbitrary because the Participants override the allocation with adjusted allocations, such as the proposed market maker discounts, the Minimum Industry Member CAT Fee and the Maximum Industry Member CAT Fee, and the treatment of OTC Equity Security share volume. The commenter believes the Proposed Funding Model would shift the regulatory cost of overseeing one Industry Member to another Industry Member, with the potential effect of retail investors who transact with small Industry Members indirectly subsidizing sophisticated investors who transact with large market-makers. The commenter states, “the Operating Committee has not provided a sufficient regulatory case for a proposed funding model which imposes different costs for the same CAT reportable events.”

Several commenters believe the proposed cost allocation between Industry Members and Participants ignores the time investment and costs already incurred by Industry Members to report to the CAT. One commenter notes that Industry Members have had to develop internal systems for CAT reporting and that Industry Members have provided critical assistance to the Participants in developing Industry Member CAT Technical Specifications. The commenter opines that an analysis of the costs incurred by Industry Members for internal compliance would demonstrate that the Industry Allocation is not an equitable allocation of reasonable fees. Another commenter notes that the Proposed Amendment does not mention the substantial time and cost invested by Industry Members into refining reporting specifications and building CAT reporting platforms, and one other commenter believes that the Proposed Amendment ignores the substantial costs that Industry Members have incurred associated with the development, testing and implementation of the CAT.

One commenter states that the Proposed Funding Model treats affiliated Participants differently than affiliated Industry Members without explaining how this inconsistency is consistent with the Exchange Act. The commenter explains that affiliated Participants would be charged based on aggregate market share as a single complex, while affiliated Industry Members would be charged individually based on individual message traffic. The commenter states, “[t]his methodology seems to be rooted in the Participants' view that it provides for a fair allocation of fees under the proposal because it results in the largest Participant complexes being charged approximately the same level of fees as the largest Industry Members.” The commenter notes that the result is not a fair allocation of reasonable fees as the largest Industry Members have multiple affiliates that, if viewed as a single aggregated complex like affiliated Participants, would pay greater CAT fees than the largest Participant complexes.

One commenter questions why equities and options message traffic is combined for Industry Member cost allocation purposes, unlike the Participant Allocation where 60% of the Total CAT Costs would be allocated to Equities Participants and 40% would be allocated to Options Participants. The commenter states, “[i]f message traffic is indeed the major driver of CAT costs, then it stands to reason that at least 40% of the Industry Member costs be allocated to options (as in the Participants' allocation framework), if not significantly more.”

Four commenters note that, under the proposed allocation, Industry Members must not only cover their allocation of the Total CAT Costs, but they must also fund FINRA, which would owe its own share of Participant CAT fees. One commenter believes that, including FINRA's allocation, the Industry Member Allocation would exceed 80%. The commenter notes that the Proposed Amendment does not explain why FINRA should be treated the same way as exchanges for allocation purposes when Industry Members pay FINRA's operation costs through regulatory fees and fines. Another commenter believes that FINRA will raise its fees to help pay for its own Participant Allocation, further increasing the cost to be borne by Industry Members. This commenter suggests that the Participants should submit a new proposal with a cost methodology supported by data that Industry Members can evaluate. FINRA itself comments, “[o]ne effect of adopting these unsupported allocation criteria would be an unjustified increase in FINRA's fee assessments . . .” FINRA also states that because it relies on regulatory fees from members, the Proposed Funding Model would reallocate FINRA's costs to Industry Members in addition to the CAT fees to be borne by Industry Members.

In response to comments questioning the justification for the proposed 75%-25% allocation, the Operating Committee states that this allocation “continues to be an equitable allocation of reasonable CAT fees between Industry Members and Participants that balances the costs paid by each CAT Reporter and the regulatory benefits each receives.” The Operating Committee reiterates the arguments it made in support of the allocation from the Proposed Amendment.

Several commenters state that the Proposed Amendment does not consider whether regulatory fees and fines paid by Industry Members could offset the costs of CAT. One commenter asserts that the Proposed Funding Model did not consider using exchange regulatory revenues or profits as sources of funding and did not explain why fines paid by Industry Members for CAT reporting violations could not offset the costs of operating the CAT. In addition, the commenter states that the Proposed Funding Model did not analyze whether FINRA's Trading Activity Fee (“TAF”) could offset the costs of CAT when OATS is retired, or whether FINRA could reduce the TAF rate. The commenter said that inclusion of this analysis would reveal that the Industry Allocation is not an equitable allocation of reasonable fees. Another commenter argues that Industry Members pay membership fees, registration and licensing fees, and regulatory fees to Participants, yet the Proposed Funding Model did not address how these fees are allocated and why Industry Members must be responsible for a new funding requirement. One commenter believes that revenues from fines should be allocated to the Company's operating reserve in order to decrease CAT costs.

In response to comments suggesting that regulatory fines and cost savings due to the retirement of OATS should be used to decrease CAT costs, the Operating Committee states that it will not reduce CAT fees based on the ancillary effects of the CAT. The Operating Committee explains that the proposed CAT fees account for the costs to create, implement and maintain the CAT, not other aspects of the Participants' regulatory operations.

Finally, one commenter argues that the elimination of comparability as a funding principle removes support for the proposed cost allocation. The commenter explains that comparability was key to the decision to propose the 75%-25% allocation to Industry Members and Participants when the Participants previously proposed CAT fees in 2017. The commenter explains that the Participants removed comparability from the funding model because the Proposed Funding Model no longer assesses fees through tiers. The commenter states, “if the principle driving the change to a no-tier approach is to assess fees more transparently on CAT Reporters in direct relation to the costs that each creates for the CAT with its reporting activity, the Proposed Funding Model fails to apply this principle consistently.” The commenter adds that the Proposed Amendment does not discuss the impact of the removal of the tiers and the comparability principle on the funding model.

In response to the comment, the Operating Committee explains that the comparability provision was used to determine fee tiers. Since a tiered fee structure would not be used under the Proposed Funding Model, the Operating Committee believes it is appropriate to delete the comparability provision as it is no longer relevant.

Allocation of Costs Between Equities and Options Participants

Two commenters argue that the Proposed Amendment failed to justify the proposed 60%-40% allocation of costs between Equities and Options Participants. Both commenters believe the Proposed Amendment lacks justification to support the allocation. One commenter notes that the Participants previously stated that message traffic is a key cost driver of the CAT. The commenter attests that the Proposed Funding Model would assess Options Participants, which generate significantly more message traffic than Equities Participants, a lesser amount of the total CAT costs than Equities Participants. This commenter believes the result is inconsistent with the CAT's cost alignment principles and that the Operating Committee does not explain how the result is consistent with the funding principles or the Exchange Act. The other commenter believes the allocation is arbitrary and unfairly discriminatory. The commenter opines that the explanation provided by the Participants—that the allocation was “subject to negotiations among the Participants”—is not a basis for approval under the Exchange Act, and notes that the majority of votes on the Operating Committee are held by Participants that operate options exchanges.

In response to the comments, the Operating Committee states that the proposed 60%-40% allocation of costs between Equities Participants and Options Participants is an appropriate allocation that is consistent with the CAT NMS Plan, which contemplates allocating Participant CAT fees based on activity in options and equities, and explains that the allocation was the subject of negotiations among the Participants.

Use of Message Traffic for Industry Members

Several commenters object to the use of message traffic as the basis of Industry Member CAT fees. One commenter believes that message traffic is not an appropriate measure for allocating fees to Industry Members. The commenter notes that the Participants “control how message traffic is defined, how message traffic is processed, and whether steps can be taken to reduce message traffic.” The commenter argues that charging only Industry Members based on message traffic is not a fair allocation of reasonable fees because it creates no incentive for the Participants to control CAT message traffic and CAT costs. The commenter believes the proliferation of exchanges has resulted in higher CAT message traffic, and thus higher costs, but notes that this is not analyzed in the funding model. Another commenter suggests that additional data is needed to support the apportionment of CAT costs according to message count.

One commenter notes that the elimination of comparability as a funding principle removes support for the proposed requirement to base Industry Members CAT fees on message traffic and Participant CAT fees on market share. The commenter explains that comparability was key to the decision to propose message traffic as the basis of Industry Member CAT fees and market share as the basis of Execution Venue CAT fees when the Participants previously proposed CAT fees in 2017.

Two commenters believe that the Proposed Funding Model needs to examine the impact of options quoting activity on CAT. One commenter states that Options Market Maker quoting comprises the “vast majority” of CAT messaging and that the design of the CAT should be reevaluated in case CAT is being “weighed down by options activity with little impact on market quality and traded volume.” The other commenter states that the Proposed Funding Model lacks an analysis of the message traffic and costs generated by Options Market Makers that are required by SRO rules to provide quotes in over a million options series, even those that do not trade.

In response to comments questioning the use of message traffic as a basis of Industry Member CAT fees, the Operating Committee states that “the use of message traffic for allocating CAT costs among Industry Members is consistent with the CAT NMS Plan as approved by the Commission, and the proposal did not seek to change the use of message traffic for this purpose in the Proposed Funding Model.” The Operating Committee notes that it explored allocating the Industry Member Allocation based on revenue related to activities in Eligible Securities, but decided it would be difficult to determine the types of Industry Member revenue to include in the calculation of a CAT fee using this approach.

One commenter suggests that the Reportable Events that will constitute message traffic be defined in the CAT NMS Plan, rather than in the IM Reporting Tech Specs, so that any changes to the Reportable Events that would be defined as message traffic would be subject to the notice and comment process. In response to the comment, the Operating Committee states that “delineating the method for reporting Reportable Events used in the message traffic count in the Technical Specifications, rather than the CAT NMS Plan, is appropriate because the technical approach to reporting specific Reportable Events may vary over time.”

Commenters also believe that the use of message traffic as a basis of Industry Member CAT fees could affect market participant behavior with harmful consequences to the markets. Two commenters believe the Participants have not analyzed the impact of the proposed approach on the markets. One commenter states that the Proposed Funding Model does not address whether market makers would reduce their quoting activity in order to reduce their CAT fees, even with the proposed market maker discounts. The other commenter believes that such a reduction in message traffic could impact liquidity.

One commenter believes that using message traffic as the basis of Industry Member CAT fees will hurt the provision of liquidity and harm market quality. The commenter explains, “[a] message that becomes displayed on an exchange has obvious value to the entire market and not only to the broker (or its customer) providing that liquidity. Taxing the message will naturally discourage its provision.” The commenter emphasizes the benefits of displayed quoting on the markets and the negative consequences of the potential reduction in this activity that could result from the proposed approach.

One commenter discusses the potential negative impact on ETFs caused by the use of message traffic as the basis for Industry Member CAT fees. The commenter believes that the proposed approach would result in a reduction in quoting to minimize CAT fees. The commenter states that ETF market making activity is message-intensive and any changes in behavior caused by the proposed approach could “interfere with the arbitrage mechanism and negate the work by Industry Members and exchanges to promote tighter bid-ask spreads, deeper markets and greater participation among liquidity providers.”

In response to comments questioning the effects of the use of message traffic to calculate fees on the markets, the Operating Committee states that its proposed market maker discounts and the proposed Maximum Industry Member CAT Fee are designed to address potential disincentives. Additionally, the Operating Committee states that the market maker discounts “recognize the value of the market making activity to the market as a whole.”

Use of Market Share for Participants

Several commenters believe that Participants should be assessed fees based on message traffic rather than market share. The commenters note that the primary driver of CAT costs is the processing and storage of message traffic; therefore, Participants should be assessed CAT fees based on message traffic.

One commenter believes that using market share to determine Participant CAT fees “gives a free pass to Plan Participants who generate high levels of message traffic but have very little market share.” This commenter believes that using message traffic as the basis of Industry Member CAT fees and market share as the basis of Participant CAT fees is inherently discriminatory, maximizes Industry Member costs and minimizes Participant costs, and appears to result from Participant conflicts of interest and a lack of industry input until the funding model. Another commenter believes that using message traffic as the basis of Industry Member CAT fees and market share as the basis of Participant CAT fees is discriminatory and unsupportable. One commenter believes the Proposed Amendment fails to explain why Industry Members will be assessed fees based on message traffic while Participants will be assessed fees based on market share. Two commenters believe that the Participants will have no incentives to limit message traffic to lower costs if they are not being charged CAT fees based on message traffic.

Another commenter, FINRA, believes that requiring market share to be the basis of Participant costs is inconsistent with CAT cost alignment principles because message traffic is the key driver of costs, not market share. The commenter notes that if the Participants believe FINRA's CAT fee would be too low based on its message traffic, FINRA would consider paying a more appropriate amount or an allocation based on a combination of message traffic and market share.

This commenter also objects to the use of market share in determining its CAT fees. The commenter states that it would be responsible for 20% of the Equities Participant Allocation even though it generates less than 1% of equities message traffic reported to the CAT. The commenter explains that its market share would be based on trade reporting volume reported through its facilities, which is also reported by Industry Members. The commenter asks how this is consistent with the Operating Committee's rationale for the use of market share to determine Participant CAT fees—that message traffic is not an appropriate basis for Participants because their message traffic is derivative of Industry Member reporting activity. In addition, the commenter states that the Operating Committee justifies the use of market share for Participants because their business models are focused on executions; however, the commenter notes that “given FINRA's unique role, trade volume is reported through FINRA for regulatory purposes, not to serve FINRA's business purposes.” The commenter adds that the Operating Committee justifies the use of market share as a basis for FINRA's CAT fees as FINRA would be one of the largest regulatory users of the CAT. The commenter asks “why regulatory usage is offered only to justify FINRA's allocation of the proposed fee that is based on unrelated criteria (market share), particularly when all Participants may use CAT data for regulatory purposes.” The commenter argues that the Operating Committee has not analyzed the costs of regulatory usage, and states that if a regulatory usage fee is appropriate, it should apply to all Participants.

In response to comments questioning the use of market share to calculate Participant fees, the Operating Committee states that the CAT NMS Plan contemplates that Participants pay a CAT fee that is based on market share. After considering alternatives to the use of market share, the Operating Committee concluded that market share would equitably allocate CAT fees among Participants. The Operating Committee reiterates arguments it made in support of the use of market share in the Proposed Amendment.

Maximum Equities Participant Fee

Two commenters object to the Maximum Equities Participant Fee because they believe that the sole Participant subject to the fee—FINRA—would be unfairly afforded preferential treatment. One commenter believes that FINRA should receive a higher portion of CAT costs than Participants that lack a surveillance business because FINRA can capitalize off of the predecessor plan processor's development work and its technology will benefit from CAT. The commenter believes that FINRA should not be permitted re-allocation of its CAT fee under the Maximum Equities Participant Fee. The commenter also states, “[a]lthough we acknowledge that the nature of OTC trading in penny level may inherently be different from the proposed message traffic measurement use in Equity/Listed Option Group Split, similar arguments may apply to thinly traded securities, ESG stocks, etc., which SEC rule should avoid `craft-out.'”

In response to the comment noting the nature of trading in OTC Equity Securities, the Operating Committee states that it proposes to exclude OTC Equity Securities share volume from the calculation of market share for national securities exchanges. The Operating Committee reiterates the arguments it made in support of the proposed exclusion of OTC Equity Securities share volume in the Proposed Amendment.

The other commenter believes that the Maximum Equities Participant Fee market share caps and re-allocation are arbitrary and unfairly discriminatory. The commenter believes that the proposal lacks justification for requiring other Equities Participants to be allocated FINRA's market share when FINRA's activity does not occur on their markets. The commenter notes, “[t]he stated rationale that this is necessary for the FINRA fees to be `fair and reasonable' is subjective, unsupported by any data, and further highlights the shortcomings of a fee model based on market share.”

One commenter, FINRA, also objects to the Maximum Equities Participant Fee because it is based on the use of market share for calculating FINRA's CAT fees, which FINRA believes is inconsistent with the funding principles of the CAT NMS Plan and ill-suited to FINRA's unique model.

In response to comments received on the Maximum Equities Participant Fee, the Operating Committee reiterates the arguments it made in support of the proposed Maximum Equities Participant Fee in the Proposed Amendment.

Minimum Participant Fee

One commenter objects to the proposed Minimum Participant Fee as inconsistent with the notion that market share is a fair method of allocation, and as arbitrary and unfairly discriminatory. The commenter states that this fee would be paid by every Participant, regardless of its market share, and notes that this fee can significantly increase even if a Participant itself is not creating increased costs to the CAT. The commenter questions why some Participants would incur a higher Minimum Participant Fee when only certain Participants engage in activity that results in increased CAT message traffic. The commenter also notes that a Participant that operates both an options and equities exchange would be assessed only one Minimum Participant Fee.

In response to the comments on the Minimum Participant Fee, the Operating Committee reiterates the arguments it made in support of the proposed Minimum Participant Fee in the Proposed Amendment.

Maximum Industry Member CAT Fee

Several commenters express concern about the Maximum Industry Member CAT Fee. One commenter believes the Maximum Industry Member CAT Fee “exacerbates inequalities” and believes that small firms should not be responsible for subsidizing the CAT fees for the top 36 firms that generate the vast majority of message traffic. Similarly, another commenter believes that a lack of transparency into the re-allocation of CAT fees for Industry Members in excess of the Maximum Industry Member CAT Fee adds complexity and makes it difficult for Industry Members to calculate their costs under the Proposed Funding Model. This commenter also believes the cap of 8% of total Industry Member CAT message traffic is arbitrary.

Another commenter objects to the 8% cap, explaining that the proposal has not fully justified the cap, and that it provides large brokers an unfair advantage by requiring other Industry Members, including their direct competitors, to pay the large brokers' re-allocation of fees in excess of the Maximum Industry Member CAT Fee. Finally, one commenter believes the Proposed Funding Model insufficiently analyzes the “cross-subsidization that results from the proposed minimum and maximum Industry Member fees” nor does it explain the reasoning behind the creation of the Maximum Industry Member CAT Fee.

In response to comments on the Maximum Industry Member CAT Fee, the Operating Committee reiterates the arguments it made in support of the proposed Maximum Industry CAT Fee in the Proposed Amendment.

Minimum Industry Member CAT Fee

Two commenters object to the Minimum Industry Member CAT Fee. One of the commenters believes the Minimum Industry Member CAT Fee poses an undue burden on Industry Members and, by charging a “de minimis fee,” is inconsistent with Section 11.2(d), which requires the Operating Committee to provide for ease of billing and other administrative functions.

The other commenter believes the proposal lacks justification for the Minimum Industry CAT Fee, explaining that the fee could increase for firms with little message traffic due to the redistribution of CAT fees in excess of the Maximum Industry Member CAT Fee. The commenter states this result was not discussed in the Proposed Funding Model nor was there a discussion of how the result is consistent with the CAT funding principles.

In response to the comments, the Operating Committee reiterates the arguments it made in support of the proposed Minimum Industry Member CAT Fee in the Proposed Amendment.

Market Maker Discounts

Five commenters object to the proposed market maker discounts. One commenter objects to the market maker discounts due to what it deems the improper discounting of Equity Market Maker message traffic and the preferential treatment of Options Market Makers at the expense of equities Industry Members. The commenter criticizes the trade-to-quote ratio that is the basis of the proposed market maker discounts, explaining that it “ignores the realities of the market.” The commenter suggests only including trades executed on-exchange and not off-exchange in the ratio. Additionally, the commenter objects to the use of the SIP best bid and offer information in deriving the trade-to-quote ratio, explaining that this method undercounts the “activity and value contribution of equities market makers and further underestimates any market maker discount.” The commenter also argues that, after the Options Market Maker discount, equities Industry Members would be required to pay 95% of the CAT cost when only responsible for 12% of the message traffic, a “grossly unfair cross-subsidy.” The commenter states that at least 40% of Industry Member costs should be borne by options Industry Members if message traffic is the key driver of CAT costs. Another commenter states that the “massive discounts” demonstrate that the Participants “have not found a way to perform the core functions needed for market surveillance, without the cost of it putting at risk an entire segment of the industry.”

Similarly, another commenter states that 89% of all Industry Member CAT Reportable Events comes from Options Market Makers, but the proposed Options Market Maker discount reduces 99% of the billable events for Options Market Makers, with the result being 94% of Industry Members' share allocated to equities non-market makers. The commenter urges the Participants to justify this shift of costs to Industry Members that are not Options Market Makers and notes that the Proposed Amendment has not analyzed the effects of the discounts or has demonstrated that the discounts will be effective. The commenter states that the Proposed Amendment is lacking in several other areas with respect to these discounts; there is no discussion of: (1) How the proposed market maker discount provides a pricing advantage to market makers that is unavailable to other market participants; (2) how the trade-to-quote ratio is the correct metric to use for determining the market maker discounts; (3) how the discount incentivizes market makers to quote more without trading more; (4) how/whether the discount calculation will change if the trade-to-quote ratio significantly changes; and (5) any impacts on liquidity and market participant behavior. The commenter also believes the Proposed Amendment lacks a discussion of its potential impact on business lines across the industry, such as, for example, its effect on ATSs, which would not be considered market makers and thus could incur high costs. The commenter attests that the Proposed Amendment lacks the information necessary to assess the effect of the proposed market maker discounts, such as the number of transactions resulting from market makers and how market-makers transactions should be discounted from the total number of transactions using the trade-to-quote ratio.

In response to the comment on the proposal's potential effects on business lines across the industry, the Operating Committee states that it sought to limit any negative effects on certain CAT Reporters resulting from the use of message traffic to calculate fees, such as through the proposed market maker discounts and the proposed Maximum Industry Member CAT Fee.

One commenter opposes any market maker discounts, but notes that smaller market makers that do not pay or receive rebates deserve subsidies to encourage their participation. Another commenter believes the impact of market maker discounts, as well as the Maximum Industry Member CAT Fee, adds complexity and makes it difficult for Industry Members to calculate their costs. In response to comments on the market maker discounts, the Operating Committee reiterates its rationale for proposing the discounts from the Proposed Amendment.

Two commenters endorse the proposed market maker discounts. One commenter believes any funding plan should include these discounts and that additional product-specific discounts should be considered. Another commenter believes the discounts prevent market makers from incurring “a disproportionate percentage of CAT costs, which could impact their provision of liquidity.”

One commenter requests clarification on the proposed market maker discounts, specifying “cost allocation data and projections on market maker vs. non-market maker liquidity providers.” The commenter also asks for further transparency and discussion on the application of the discounts on Industry Members with the most message traffic, at the expense of other Industry Members.

Proposed Alternative Funding Models

Several commenters suggest alternatives to the Proposed Funding Model. One commenter believes that fines and settlements should fund the CAT and that market participants that pose higher risks should pay higher CAT fees due to regulators' “extra efforts in deciphering their complex business activities.” The commenter also suggests the Suspicious Activity Report (“SAR”) as a basis for determining Industry Member CAT fees, stating that Industry Members that underreport on the SAR should have increased fines. The commenter believes that dark pools should pay higher CAT fees than SROs because they pose higher potential risks due to lack of transparency and “vulnerability to conflicts of interest,” and also notes that internalizers or market makers may pose more of a risk than dark pools due to greater vulnerability to conflicts of interest.

Other commenters recommend a funding model administered similar to the Commission's Section 31 fees. Two commenters explain that the Participants could be assigned all of the CAT costs and then they would decide how to reallocate those costs to their market participants, like Section 31 fees. One of the commenters believes that this method would incentivize Participants into better managing CAT costs and possibly incentivize them into competing over how to allocate costs their market participants. Another commenter also suggests that the Commission could instead increase the rate of Section 31 fees to fund the CAT.

One commenter believes that a 50%-50% cost allocation among Industry Members and Participants would be preferable to the proposed 75%-25% cost allocation, but notes a simpler and direct way of allocating costs through derived value, which the commenter believes would not deter the provision of liquidity. The commenter suggests using a methodology similar to the Section 31 fee or the Section 31 fee methodology itself.

Another commenter, a national securities exchange, provides a detailed alternative funding model administered similarly to Section 31 fees. According to the alternative model, CAT costs would be allocated based on executed share volume, which is already tracked by market participants. A per share or per contract fee would be calculated by dividing the annual budget cost base by projected total industry volume. One-third of the fee would be allocated to the purchasing broker-dealer, one-third to the selling broker-dealer, and one-third to the exchange or trade reporting facility reporting the transaction. The commenter believes that this allocation would align funding responsibility with the receipt of economic benefits from the marketplace and would result in transparent and predicable CAT funding costs. The commenter notes that OTC equities would be treated differently due to their significantly higher share volumes, and suggests that they receive a small portion of the CAT budget that would be allocated among the buyer, seller and the Over-the-Counter Reporting Facility on a per share basis. The commenter believes that requiring all parties active in each transaction to evenly fund the CAT would allocate costs transparently, and that billing in accordance with Section 31 fee billing processes would be “an efficient method to administer funding program and provide clarity to market participants of their trading expenses.”

Two commenters believe the national securities exchange's suggested alternative funding model deserves review. Both commenters support the alternative's suggestion to base funding on executed volume rather than message traffic via a structure administered like Section 31 fees volume rather than message traffic. However, one commenter expresses concern about the alternative's suggested allocation of the per share cost, explaining that FINRA's costs would be passed to Industry Members through the TAF. Additionally, one commenter warns that this alternative, and the suggestions to use Section 31 fees as a model, could result in costs assessed against investors and urges the Commission to consider the possibility of increased costs and whether investors should be responsible for these costs.

V. Proceedings To Determine Whether To Approve or Disapprove the Proposed Amendment

The Commission is instituting proceedings pursuant to Rule 608(b)(2)(i) of Regulation NMS, and Rules 700 and 701 of the Commission's Rules of Practice, to determine whether to disapprove the Proposed Amendment or to approve the Proposed Amendment with any changes or subject to any conditions the Commission deems necessary or appropriate after considering public comment. 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 Amendment to inform the Commission's analysis.

Rule 608(b)(2) of Regulation NMS provides that the Commission “shall approve a national market system plan or proposed amendment to an effective national market system plan, with such changes or subject to such conditions as the Commission may deem necessary or appropriate, if it finds that such plan or amendment is necessary or appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanisms of, a national market system, or otherwise in furtherance of the purposes of the Exchange Act.” Rule 608(b)(2) further provides that the Commission shall disapprove a national market system plan or proposed amendment if it does not make such a finding. In the Notice, the Commission sought comment on the Proposed Amendment, including whether the Proposed Amendment is consistent with the Exchange Act. In this order, pursuant to Rule 608(b)(2)(i) of Regulation NMS, the Commission is providing notice of the grounds for disapproval under consideration:

• Whether, consistent with Rule 608 of Regulation NMS, the Participants have demonstrated how the Proposed Amendment is necessary or appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanisms of, a national market system, or otherwise in furtherance of the purposes of the Exchange Act;

• Whether the Participants have demonstrated how the Proposed Amendment is consistent with Section 6(b)(4) and Section 15A(b)(5), of the Exchange Act, which require 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” and that the rules of a national securities association “provide for the equitable allocation of reasonable dues, fees, and other charges among members and issuers and other persons using any facility or system which the association operates or controls;”

• Whether the Participants have demonstrated how the Proposed Amendment is consistent with Section 6(b)(5) and Section 15A(b)(6), of the Exchange Act, which require that the rules of a national securities exchange or national securities association “promote just and equitable principles of trade . . . protect investors and the public interest; and [to be] not designed to permit unfair discrimination between customers, issuers, brokers, or dealers;”

• Whether the Participants have demonstrated how the Proposed Amendment is consistent with Section 6(b)(8) and Section 15A(b)(9) of the Exchange Act, which require that the rules of a national securities exchange or national securities association “do not impose any burden on competition not necessary or appropriate in furtherance of the purposes of [the Exchange Act];”

• Whether the Participants have demonstrated how the Proposed Amendment is consistent with the funding principles of the CAT NMS Plan, which state that the Operating Committee shall seek, among other things, “to create transparent, predictable revenue streams for the Company that are aligned with the anticipated costs to build, operate and administer the CAT and the other costs of the Company,” “to establish an allocation of the Company's related costs among Participants and Industry Members that is consistent with the Exchange Act taking into account . . . distinctions in the securities trading operations of Participants and Industry Members and their relative impact upon the Company resources and operations,” “to provide for ease of billing and other administrative functions,” and “to avoid any disincentives such as placing an inappropriate burden on competition and a reduction in market quality;”

• Whether, and if so how, the Proposed Amendment would affect efficiency, competition or capital formation; and
• Whether modifications to the Proposed Amendment, or conditions to its approval, would be necessary or appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanisms of, a national market system, or otherwise in furtherance of the purposes of the Exchange Act.

As discussed in Section IV., above, the Participants made various arguments in support of the Proposed Amendment and the Commission received comment letters that expressed concerns about the Proposed Amendment, including that the Participants did not provide sufficient information to establish that the Proposed Amendment is consistent with the Exchange Act and the rules thereunder.

Under the Commission's Rules of Practice, the “burden to demonstrate that a NMS plan filing is consistent with the Exchange Act and the rules and regulations issued thereunder . . . is on the plan participants that filed the NMS plan filing.” The description of the NMS plan filing, its purpose and operation, its effect, and a legal analysis of its consistency with applicable requirements must all be sufficiently detailed and specific to support an affirmative Commission finding. Any failure of the plan participants that filed the NMS plan filing to provide such detail and specificity may result in the Commission not having a sufficient basis to make an affirmative finding that the NMS plan filing is consistent with the Exchange Act and the applicable rules and regulations thereunder.

VI. Commission's Solicitation of Comments

The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the Proposed Amendment. In particular, the Commission invites the written views of interested persons concerning whether the Proposed Amendment is consistent with Section 11A or any other provision of the Exchange Act, or the rules and regulations thereunder. 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 608(b)(2)(i) of Regulation NMS, any request for an opportunity to make an oral presentation. The Commission asks that commenters address the sufficiency and merit of the Participants' statements in support of the Proposed Amendment, in addition to any other comments they may wish to submit about the proposed rule changes. In particular, the Commission seeks comment on the following:

A. Requests for Comment on the Proposed Funding Model

1. Commenters' views on the proposed inclusion of ATSs as Industry Members for purposes of allocating CAT costs;

2. Commenters' views on the exclusion of reported OTC Equity Securities share volume from the calculation of market share for national securities associations;

3. Commenters' views on the proposed elimination of tiered fees in favor of CAT fees that may vary based on message traffic or market share, as applicable;

4. Commenters' views on the proposed elimination from Section 11.2(c) of the CAT NMS Plan of the requirement that the fees charged to CAT Reporters with the most CAT-related activity be generally comparable;

5. Commenters' views on the proposed Minimum Industry Member CAT Fee and the requirement that all Industry Members pay such fee, even if they have not yet started reporting to the CAT, and any views on whether the Proposed Funding Model has provided sufficient information on the operation of the fee and on whether the Proposed Funding Model has sufficiently explained the operation of the Minimum Industry Member CAT Fee Re-Allocation;

6. Commenters' views on the proposed Maximum Industry Member CAT Fee; any views on whether the Proposed Amendment contains sufficient justification for the 8% cap chosen for the fee; and any views on whether a maximum fee is consistent with the funding principles expressed in the CAT NMS Plan that states that the Operating Committee shall seek, among other things, “to create transparent, predictable revenue streams for the Company that are aligned with the anticipated costs to build, operate and administer the CAT and the other costs of the Company,” “to establish an allocation of the Company's related costs among Participants and Industry Members that is consistent with the Exchange Act taking into account . . . distinctions in the securities trading operations of Participants and Industry Members and their relative impact upon the Company resources and operations,” and “to avoid any disincentives such as placing an inappropriate burden on competition and a reduction in market quality;”

7. Commenters' views on why Industry Member CAT fees should be capped; views on how such a cap would benefit or harm efficiency, competition, and capital formation; and any views on whether there are other benefits or costs of adopting such an approach;

8. Commenters' views on the proposed Minimum Participant Fee and the Maximum Equities Participant Fee, including views on the calculation of the proposed fees and any views on whether the proposed fees raise any competitive issues among the Participants; and any views on whether the proposed fees are consistent with the funding principles expressed in the CAT NMS Plan, which state that the Operating Committee shall seek, among other things, “to create transparent, predictable revenue streams for the Company that are aligned with the anticipated costs to build, operate and administer the CAT and the other costs of the Company;” “to establish an allocation of the Company's related costs among Participants and Industry Members that is consistent with the Exchange Act taking into account . . . distinctions in the securities trading operations of Participants and Industry Members and their relative impact upon the Company resources and operations;” and “to avoid any disincentives such as placing an inappropriate burden on competition and a reduction in market quality;”

9. Commenters' views on whether FINRA's CAT fee should be capped; any views on how such a cap benefits or harms efficiency, competition, and capital formation; and any views on whether there are other benefits or costs of adopting such an approach;

10. Commenters' views on why Participants should be charged the Minimum Participant Fee; views on how such a minimum would benefit or harm efficiency, competition, and capital formation; and any views on whether there are other benefits or costs of adopting such an approach;

11. Commenters' views on the proposed market maker discounts, any views on the potential impact of the discounts on market participant behavior, including the provision of liquidity; and any views on whether the proposed market maker discounts are consistent with the funding principles expressed in the CAT NMS Plan, which state that the Operating Committee shall seek, among other things, “to create transparent, predictable revenue streams for the Company that are aligned with the anticipated costs to build, operate and administer the CAT and the other costs of the Company,” “to establish an allocation of the Company's related costs among Participants and Industry Members that is consistent with the Exchange Act taking into account . . . distinctions in the securities trading operations of Participants and Industry Members and their relative impact upon the Company resources and operations,” and “to avoid any disincentives such as placing an inappropriate burden on competition and a reduction in market quality;”

12. Commenters' views on how market-making activity should be defined for purposes of the proposed market maker discounts; views on whether there is activity included in the definition of market making that should not be included for purposes of allocation of CAT fees; and any views on whether such a discount should apply to market-making activities in all types of securities without regard to security characteristics;

13. Commenters' views on whether other Industry Members (including those that do not transact in options) would subsidize the activity of Options Market Makers under the proposal; any views on whether Section 6.4(d)(iii) of the CAT NMS Plan effectively reduces the message traffic of Options Market Makers relative to what it would be otherwise, and thus ultimately reduce the CAT fees they would be assigned under the Participants' proposal; views on how this subsidization would benefit or harm efficiency, competition, and capital formation; views on whether there are other benefits or costs of adopting such an approach; views (in detail) on whether there is an alternative approach that would be more beneficial to efficiency, competition, or capital formation; and any views on whether the discount to fees allocated to Industry Members for market making activity described in the Participants' proposal provide a similar magnitude of benefit to Equity Market Makers;

B. Requests for Comment on the Proposed Fee Schedule

1. Commenters' views on the determination to allocate 75% of the Total CAT Costs to Industry Members and 25% of the Total CAT Costs to Participants; and any views on whether this proposed allocation is consistent with the funding principles expressed in the CAT NMS Plan, which state that the Operating Committee shall seek, among other things, “to establish an allocation of the Company's related costs among Participants and Industry Members that is consistent with the Exchange Act taking into account . . . distinctions in the securities trading operations of Participants and Industry Members and their relative impact upon the Company resources and operations,” and “to avoid any disincentives such as placing an inappropriate burden on competition and a reduction in market quality;”

2. Commenters' views on the rationale provided that the proposed 75%-25% allocation ensures that Industry Members with the most message traffic pay comparable fees to Participant complexes with the most market share, considering the proposed deletion from Section 11.2(c) of the CAT NMS Plan of the requirement that the fees charged to CAT Reporters with the most CAT-related activity be generally comparable;

3. Commenters' views on whether allocating Participant fees by market share while allocating Industry Member fees by message traffic, when combined with the proposed 75%-25% split between Participants and Industry Member aggregate fees, introduces frictions (such as effectively double counting the message traffic sent and received by Industry Members, into the CAT fee model due to FINRA's allocation of fees from trade volume reported to trade reporting facilities); views on how frictions would result; any views on how this would benefit or harm efficiency, competition, and capital formation; any views on whether there are other benefits or costs of adopting such an approach; and any views on whether capping FINRA's contribution to CAT fees as described in the Participants' proposal mitigate any benefits or costs and to what extent;

4. Commenters' views on potential alternative allocations of Total CAT Costs to Industry Members and Participants, including the allocations considered, but rejected, by the Participants, and the alternative allocations suggested by commenters as discussed in this order;

5. Commenters' views on how fees would be passed on to Industry Members and investors if all CAT costs were allocated to Participants; views on how this outcome would be different than under the Participants' proposal; views on whether such an approach would benefit or harm efficiency, competition, and capital formation; and any views on whether there are other benefits or costs of adopting such an approach;

6. Commenters' views on whether Industry Members have sufficient information to estimate and budget for their expected allocation of CAT fees each quarter; if not, any views on what additional information would Industry Members need to develop an estimate of these fees;

7. Commenters' views on whether a Section 31 fee-like cost allocation framework (i.e., a transaction-based fee framework) would benefit or harm efficiency, competition, and capital formation, and any views on whether there are other benefits or costs of adopting such an approach;

8. Commenters' views on the calculation of the Participant Allocation and the Adjusted Participant Allocation;

9. Commenters' views on the determination to allocate 60% of the Adjusted Participant Allocation to Equities Participants and 40% to Options Participants, including views on whether the proposed allocation is consistent with the funding principles expressed in the CAT NMS Plan that state that the Operating Committee shall seek, among other things, “to establish an allocation of the Company's related costs among Participants and Industry Members that is consistent with the Exchange Act taking into account . . . distinctions in the securities trading operations of Participants and Industry Members and their relative impact upon the Company resources and operations,” and “to avoid any disincentives such as placing an inappropriate burden on competition and a reduction in market quality;”

10. Commenters' views on an alternative approach that would split costs between Participants and Industry Members by proportion of aggregate message traffic, then allocate the Participants' portion of fees across Participants by market share, with or without the proposed 60%-40% split between Equities and Options Participants; any views on whether this would benefit or harm efficiency, competition and capital formation when compared to the Participants' proposal; and any views on whether there are other benefits or costs of adopting such an approach;

11. Commenters' views on whether elements of the Participants' proposal entail cross-subsidization of activities (for example: Allocating 60% of Participants' fees to Equities Participants and 40% to Options Participants is unlikely to reflect these groups' relative message traffic; and discounting fees associated with message traffic for market-making activities based on quote/trade ratios reduces fees paid by Industry Members who are market makers); any views on how these cross-subsidizations benefit or harm efficiency, competition, and capital formation; and any views on whether there are other benefits or costs of adopting such an approach;

12. Commenters' views on whether the lack of Industry Member participation on the Operating Committee prevents the Participants from arriving at an equitable allocation of CAT fees between Participants and Industry Members, and across members of those groups;

13. Commenters' views on how any inherent conflicts of interest may be addressed in the proposal;

14. Commenters' views on how allowing the Operating Committee to determine by vote how Participant fees are allocated across Participants would benefit or harm efficiency, competition, and capital formation, assuming that some proportion of CAT fees are to be allocated to Participants as a group; and any views on whether there are other benefits or costs of adopting such an approach;

15. Commenters' views on the proposed quarterly Participant CAT fee, including views on its calculation; any views on whether the proposed fee raises any competitive issues; and any views on whether the proposed fee is consistent with the funding principles expressed in the CAT NMS Plan, which state that the Operating Committee shall seek, among other things, “to create transparent, predictable revenue streams for the Company that are aligned with the anticipated costs to build, operate and administer the CAT and the other costs of the Company;” “to establish an allocation of the Company's related costs among Participants and Industry Members that is consistent with the Exchange Act taking into account . . . distinctions in the securities trading operations of Participants and Industry Members and their relative impact upon the Company resources and operations;” and “to avoid any disincentives such as placing an inappropriate burden on competition and a reduction in market quality;” and

16. Commenters' views on the decision to use total budgeted costs for the CAT for the relevant year as the Total CAT Costs for calculating fees for Participants and Industry Members, rather than costs already incurred; views on the statement that the total budgeted costs for the CAT may be adjusted on a quarterly basis by the Operating Committee; and views on the treatment of any surpluses.

The Commission also requests that commenters provide analysis to support their views, if possible.

Interested persons are invited to submit written data, views, and arguments regarding whether the proposals should be approved or disapproved by August 16, 2021. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by August 30, 2021. 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 rule-comments@sec.gov. Please include File Number 4-698 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 4-698. 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 Participants' principal offices. 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 4-698 and should be submitted on or before August 16, 2021.