In the Matter of the Application of 24X National Exchange LLC for Registration as a National Securities Exchange; Findings, Opinion, and Order of the Commission, 97092-97119 [2024-28551]

Download as PDF 97092 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices under the same fees as any other customer, and any customer that wishes to order cabinets, power and PDUs in NY11–4 can do so on a nondiscriminatory basis. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were either solicited or received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.18 At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: lotter on DSK11XQN23PROD with NOTICES1 Electronic Comments • Use the Commission’s internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include file number SR– ISE–2024–53 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 SR–ISE–2024–53. 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 (https://www.sec.gov/ rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements 18 15 U.S.C. 78s(b)(3)(A)(ii). VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 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 a.m. and 3 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. Do not include personal identifiable information in submissions; you should submit only information that you wish to make available publicly. We may redact in part or withhold entirely from publication submitted material that is obscene or subject to copyright protection. All submissions should refer to file number SR–ISE–2024–53 and should be submitted on or before December 27, 2024. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.19 Sherry R. Haywood, Assistant Secretary. [FR Doc. 2024–28545 Filed 12–5–24; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–101777; File No. 10–242] In the Matter of the Application of 24X National Exchange LLC for Registration as a National Securities Exchange; Findings, Opinion, and Order of the Commission November 27, 2024. I. Introduction and Procedural History On February 6, 2024, 24X National Exchange LLC (‘‘24X’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’) a Form 1 application under the Securities Exchange Act of 1934 (‘‘Exchange Act’’) seeking registration as a national securities exchange under section 6 of the Exchange Act.1 Notice of the application was published for comment in the Federal Register on March 4, 19 17 CFR 200.30–3(a)(12). U.S.C. 78f. The Form 1 is available on the Commission’s website at: https://www.sec.gov/ rules-regulations/other-commission-orders-noticesinformation/24x-form-1. 1 15 PO 00000 Frm 00157 Fmt 4703 Sfmt 4703 2024.2 The Commission received five comments on the Notice 3 and a letter responding to the comments from 24X.4 On May 31, 2024, the Commission instituted proceedings pursuant to section 19(a)(1)(B) of the Exchange Act 5 to determine whether to grant or deny 24X’s application for registration as a national securities exchange under section 6 of the Exchange Act (the ‘‘OIP’’).6 After issuance of the OIP, the Commission received six comment letters 7 and a letter responding to the comments from 24X.8 On August 21, 2024, 24X filed an amendment to its Form 1 application (‘‘Amendment No. 1’’),9 which was published for comment in the Federal Register on September 3, 2024.10 On August 30, 2024, the Commission extended, pursuant to section 19(a)(1)(B) of the Exchange 2 See Securities Exchange Act Release No. 99614 (Feb. 27, 2024), 89 FR 15621 (Mar. 4, 2024) (‘‘Notice’’). 3 See letters from James J. Angel, Ph.D., CFP, CFA, Associate Professor of Finance, Georgetown University, McDonough School of Business, dated Apr. 5, 2024 (‘‘Angel Letter I’’) and dated May 13, 2024 (‘‘Angel Letter II’’); Stan Sater, Senior Legal Counsel, Polygon.io, Inc., dated Apr. 25, 2024 (‘‘Polygon Letter’’); Andrew Glover, University of Washington and Ed deHaan, Professor of Accounting, Stanford University, dated Apr. 22, 2024 (‘‘Glover and deHaan Letter’’); Eun Ah Choi, Senior Vice President, Nasdaq, Inc., dated Apr. 25, 2024 (‘‘Nasdaq Letter’’). The public comment file for 24X’s Form 1 (File No. 10–242) is available on the Commission’s website at: https://www.sec.gov/ comments/10-242/10-242.htm. 4 See letter from David Sassoon, General Counsel, 24X, dated May 30, 2024 (‘‘24X Letter’’). 5 15 U.S.C. 78s(a)(1)(B). 6 See Securities Exchange Act Release No. 100254 (May 31, 2024), 89 FR 48466 (June 6, 2024). 7 See letters from Richard Montone, JD/MBA student, Hofstra University, dated June 26, 2024 (‘‘Montone Letter’’); Ellen Greene, Managing Director, Equity and Options Market Structure, Securities Industry and Financial Markets Association (‘‘SIFMA’’), dated June 27, 2024 (‘‘SIFMA Letter’’); Benjamin L. Schiffrin, Director of Securities Policy, Better Markets, Inc., dated June 27, 2024 (‘‘Better Markets Letter’’); Chris Nagy, Research Director, and Tyler Gellasch, President and Chief Executive Officer, Healthy Markets Association, dated June 28, 2024 (‘‘Healthy Markets Letter’’); Jeffrey M. Pasquerella, Chief Legal Officer, DriveWealth, LLC., dated June 28, 2024 (‘‘DriveWealth Letter’’); Joanna Mallers, Secretary, FIA Principal Traders Group, dated July 26, 2024 (‘‘FIA PTG Letter’’). 8 See letter from David Sassoon, General Counsel, 24X, dated Aug. 21, 2024 (‘‘24X Letter II’’). 9 Amendment No. 1 is available on the Commission’s website at: https://www.sec.gov/ rules-regulations/other-commission-orders-noticesinformation/24x-form-1. In Amendment No. 1, 24X amended Exhibits B, B–1, C, C–2, D, D–1, D–2, D– 3, D–4, E, E–1 and N. For purposes of this Order, references to Exhibits C, C–2, D, D–1, D–3, and N will be to the amended Exhibits filed with Amendment No. 1. See infra note 15 (describing references to Exhibits B, B–1, E and E–1 for purposes of this Order). 10 See Securities Exchange Act Release No. 100839 (Aug. 27, 2024), 89 FR 71471 (Sept. 3, 2024). E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices Act,11 the time period for granting or denying 24X’s Form 1 application for an additional 90 days, until November 29, 2024.12 After issuance of Amendment No. 1, the Commission received three comment letters 13 and a letter responding to the comments from 24X.14 On October 23, 2024, 24X filed a second amendment to its Form 1 application (‘‘Amendment No. 2’’),15 which was published for comment in the Federal Register on October 30, 2024.16 After issuance of Amendment No. 2, the Commission received two comment letters 17 and a letter responding to the comments from 24X.18 The Commission has reviewed 24X’s Form 1 application, as amended, together with the comment letters received, in order to make a determination whether to grant such registration. For the reasons set forth below and based on the representations set forth in 24X’s Form 1 application, as amended, this order grants 24X’s Form 1 application, as amended, for registration as a national securities exchange. II. Statutory Standards Pursuant to sections 6(b) and 19(a) of the Exchange Act,19 the Commission shall by order grant an application for registration as a national securities exchange if the Commission finds, among other things, that the proposed exchange is so organized and has the capacity to carry out the purposes of the 11 15 U.S.C. 78s(a)(1)(B). Securities Exchange Act Release No. 100884 (Aug. 30, 2024), 89 FR 72917 (Sept. 6, 2024). 13 See letters from Patrick Blonien, Instructor of Finance, Carnegie Mellon University, and Alexander Ober, Ph.D. Candidate in Finance, Rice University, undated (‘‘Blonien and Ober Letter’’); John Ramsay, Chief Market Policy Officer, Investors’ Exchange LLC (‘IEX’’), dated Oct. 9, 2024 (‘‘IEX Letter’’); Joanna Mallers, Secretary, FIA Principal Traders Group, dated Oct. 11, 2024 (‘‘FIA PTG Letter II’’). 14 See letter from David Sassoon, General Counsel, 24X, dated Nov. 1, 2024 (‘‘24X Letter III’’). 15 Amendment No. 2 is available on the Commission’s website at: https://www.sec.gov/ rules-regulations/other-commission-orders-noticesinformation/24x-form-1. In Amendment No. 2, 24X amended Exhibits B, B–1, E, and E–1. For purposes of this Order, references to these listed Exhibits will be to the amended Exhibits filed with Amendment No. 2. 16 See Securities Exchange Act Release No. 101431 (Oct. 24, 2024), 89 FR 86400 (Oct. 30, 2024). 17 See letters from Ellen Green, Managing Director, Equities and Options Market Structure, SIFMA, dated Oct. 29, 2024 (‘‘SIFMA Letter II’’); Adrian Griffiths, Head of Market Structure, MEMX LLC (‘‘MEMX Letter’’), dated Oct. 29, 2024. 18 See letter from David Sassoon, General Counsel, 24X, dated Nov. 18, 2024 (‘‘24X Letter IV’’). 19 15 U.S.C. 78f(b) and 15 U.S.C. 78s(a), respectively. lotter on DSK11XQN23PROD with NOTICES1 12 See VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 Exchange Act and can comply, and can enforce compliance by its members and persons associated with its members, with the provisions of the Exchange Act, the rules and regulations thereunder, and the rules of the exchange.20 As discussed in greater detail below, the Commission finds that 24X’s application, as amended, for registration as a national securities exchange meets the requirements of the Exchange Act and the rules and regulations thereunder. Further, the Commission finds that the proposed rules of 24X are consistent with section 6 of the Exchange Act in that, among other things, they are designed to: (1) assure fair representation of the exchange’s members in the selection of its directors and administration of its affairs and provide that, among other things, one or more directors shall be representative of investors and not be associated with the exchange, or with a broker or dealer; 21 (2) prevent fraudulent and manipulative acts and practices, promote just and equitable principles of trade, foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, and remove impediments to and perfect the mechanisms of a free and open market and a national market system; 22 (3) not permit unfair discrimination between customers, issuers, or dealers; 23 and (4) protect investors and the public interest.24 The Commission also finds that the proposed rules of 24X are consistent with section 11A of the Exchange Act.25 Finally, the Commission finds that 24X’s proposed rules do not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Exchange Act.26 III. Discussion A. Ownership and Governance of 24X 24X is a Delaware limited liability company,27 which is wholly-owned by its sole member, 24X US Holdings LLC (‘‘24X US’’), which also is a Delaware limited liability company.28 24X US, in turn, is wholly-owned by 24X Bermuda Holdings LLC (‘‘24X Bermuda’’), which is a limited liability company formed 20 15 U.S.C. 78f(b)(1). U.S.C. 78f(b)(3). 22 See U.S.C. 78f(b)(5). 23 See id. 24 See id. 25 See 15 U.S.C. 78k–1. 26 See 15 U.S.C. 78f(b)(8). 27 See Certificate of Formation of 24X National Exchange LLC. 28 See Certificate of Formation of 24X US Holdings LLC. 21 See PO 00000 Frm 00158 Fmt 4703 Sfmt 4703 97093 under the laws of Bermuda.29 24X US will be managed by, and all decisions regarding 24X US will be made by, 24X Bermuda.30 Generally, the members of 24X Bermuda include holders of ‘‘Preferred Units,’’ 31 ‘‘Common Units’’ 32 and ‘‘Non-Voting Units.’’ 33 Common Units and Preferred Units except Series Seed-2 Units have general voting power, and are defined as ‘‘Voting Units.’’ 34 Each Voting Unit has one vote.35 1. 24X Board of Directors 24X proposed that its business and affairs as a national securities exchange will be managed by a Board 36 comprised of a minimum of seven Directors 37 (‘‘24X Board’’).38 The 24X Board will consist of: (A) one Director who is the Chief Executive Officer of the Exchange and who shall be deemed to be an Industry Director; 39 (B) Non-Industry Directors,40 including at least one (1) Independent Director,41 the number of which shall equal or exceed the sum of the number of Industry Directors and Member Representative Directors; 42 29 See Certificate of Formation of 24X Bermuda Holdings LLC. 30 See Second Amended and Restated Limited Liability Company Agreement of 24X US Holdings LLC (‘‘24X US LLC Agreement’’), Section VI(a). 31 ‘‘Preferred Units’’ means ‘‘Series A Units and the Series Seed Units.’’ See Third Amended and Restated Limited Liability Company Agreement of 24X Bermuda LLC (‘‘24X Bermuda LLC Agreement’’), Article 1, 1.45. See also id. at Article 1, 1.55 and 1.60 defining Series A Units and Series Seed Units. 32 ‘‘Common Units’’ means ‘‘[u]nits of common membership interests of the Company, or any other ownership interests of the Company into which such units are reclassified, reconstituted or exchanged.’’ See id. at Article 1, 1.16. 33 ‘‘Non-Voting Units’’ means ‘‘units of nonvoting membership interests of the Company, or any other ownership interests of the Company into which such units are reclassified, reconstituted or exchanged.’’ See id. at Article 1, 1.38. A description of the members of 24X Bermuda and their respective ownership levels is set forth in Exhibit K. See also infra section III.B.1. 34 See 24X Bermuda LLC Agreement, Article 1, 1.75. See also id. at Article 1, Section 1.64 defining Series Seed-2 Units. 35 See 24X Bermuda LLC Agreement, Article 1, 1.75. 36 See Amended and Restated Limited Liability Company Agreement of 24X National Exchange LLC (‘‘24X LLC Agreement’’), Article I, (d). 37 See id., at Article I, (l). 38 See id., at Article VI, Section 6.1(b). 39 See id., at Article VI, Section 6.1(c)(i)(A). See also id. at Article I, (w). 40 See id., at Article VI, Section 6.1(c)(i)(B)(1). See also id. at Article I, (ee). 41 See id., at Article I, (v). 42 See id., at Article VI, Section 6.1(c)(i)(B)(1). See also id. at Article I, (bb). E:\FR\FM\06DEN1.SGM 06DEN1 97094 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices lotter on DSK11XQN23PROD with NOTICES1 (C) Member Representative Directors, the number of which must be at least twenty percent of the 24X Board; 43 and (D) at least one of the Non-Industry Directors shall be representative of issuers and investors and not associated with an Exchange Member, a broker, or a dealer.44 The first annual meeting of 24X will be held within 90 days after the Commission grants 24X’s exchange registration.45 In addition, 24X US will appoint the initial Nominating Committee and Member Nominating Committee, consistent with each committee’s compositional requirements, to nominate candidates for election to the 24X Board.46 The Nominating Committee and Member Nominating Committee, after completion of their respective duties for nominating directors for election to the 24X Board for that year, will recommend candidates to serve on the succeeding year’s Nominating Committee or Member Nominating Committee, as applicable.47 Exchange Members 48 will have rights to nominate and elect additional candidates for the Member Nominating Committee pursuant to a petition process.49 The Nominating Committee will nominate candidates for election to the 24X Board.50 For the Member Representative Director positions, the Member Nominating Committee, composed solely of Member Representative Committee or Panel Members,51 shall consult with the Nominating Committee and the Chairman of the 24X Board and solicit 43 See id., at Article VI, Section 6.1(c)(1)(B)(2). If twenty percent of the Directors then serving on the 24X Board is not a whole number, such minimum number of Member Representative Directors shall be rounded up to the next whole number. Id. 44 See id., at Article VI, Section 6.1(c)(1)(B)(3). 45 See 24X LLC Agreement, Article III, Section 3.4(a). 46 See 24X LLC Agreement, Article VI, Section 6.2(g)(ii). 47 Id. 48 ‘‘Exchange Member’’ means ‘‘any registered broker or dealer that has been admitted to membership in the national securities exchange operated by the Company. An Exchange Member is not a member of the Company by reason of being an Exchange Member. An Exchange Member will have the status of a ‘member’ of the Exchange as that term is defined in Section 3(a)(3) of the Exchange Act.’’ See 24X LLC Agreement, Article I, (o). 49 See 24X LLC Agreement, Article VI, Section 6.1(d)(iii). 50 See 24X LLC Agreement, Article VI, Section 6.1(d)(i). 51 ‘‘Member Representative Committee or Panel Members’’ means a member of any Committee or hearing panel who is an officer, director, employee or agent of an Exchange Member that does not own, directly or indirectly, any Units. See 24X LLC Agreement, Article I (aa). VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 comments from Exchange Members for the purpose of approving and submitting names of candidates for election to the position of Member Representative Director.52 If no candidates are nominated pursuant to a petition process, then the initial nominees approved and submitted by the Member Nominating Committee will be nominated as Member Representative Directors by the Nominating Committee.53 If a petition process produces additional candidates, then the candidates nominated pursuant to the petition process, together with those nominated by the Member Nominating Committee, will be presented to Exchange Members for election to determine the final designees for any open Member Representative Director positions.54 In the event of a contested election, the candidates who receive the most votes will be selected as the Member Representative Director designees by the Member Nominating Committee.55 The 24X governance provisions are consistent with the Exchange Act. In particular, the requirement that the number of Member Representative Directors must be at least 20% of the 24X Board and the means by which they will be chosen by Exchange Members provides for the fair representation of members in the selection of directors and the administration of 24X and therefore are consistent with section 6(b)(3) of the Exchange Act.56 This requirement helps to ensure that members of an exchange have a voice in an exchange’s self-regulatory program, and that an exchange is administered in a way that is equitable to all those who trade on its market or through its facilities.57 52 See 24X LLC Agreement, Article VI, Section 6.1(d)(ii). 53 See 24X LLC Agreement, Article VI, Section 6.1(d)(v). 54 Id. 55 See 24X LLC Agreement, Article VI, Section 6.1(d)(vi). 56 15 U.S.C. 78f(b)(3). 57 See, e.g., Securities Exchange Act Release Nos. 100539 (July 15, 2024), 89 FR 58848 (July 19, 2024) (File No. 10–240) (order granting registration of MIAX Sapphire, LLC) (‘‘Sapphire Order’’); 88806 (May 4, 2020), 85 FR 27451 (May 8, 2020) (File No. 10–237) (order granting registration of MEMX LLC (‘‘MEMX Exchange’’))(‘‘MEMX Order’’); 85828 (May 10, 2019), 84 FR 21841 (May 15, 2019) (File No. 10– 234) (order granting registration of Long Term Stock Exchange, Inc. (‘‘LTSE Exchange’’) (‘‘LTSE Order’’); 79543 (Dec. 13, 2016), 81 FR 92901, 92903 (Dec. 20, 2016) (File No. 10–227) (order granting registration of MIAX PEARL, LLC) (‘‘MIAX PEARL Order’’); 68341 (Dec. 3, 2012), 77 FR 73065, 73067 (Dec. 7, 2012) (File No. 10–207) (order granting the registration of Miami International Securities Exchange, LLC (‘‘MIAX Exchange’’)) (‘‘MIAX Order’’); 58375 (Aug. 18, 2008), 73 FR 49498, 49501 (Aug. 21, 2008) (File No. 10–182) (order granting PO 00000 Frm 00159 Fmt 4703 Sfmt 4703 In addition, the requirements that the number of Non-Industry Directors equal or exceed the sum of the number of Industry Directors and Member Representative Directors, that at least one Non-Industry Director shall also qualify as an Independent Director, and that at least one of the Non-Industry Directors shall be representative of issuers and investors and not associated with an Exchange Member, a broker, or a dealer on the 24X Board satisfy the requirements in section 6(b)(3) of the Exchange Act,58 which requires in part that one or more directors be representative of issuers and investors and not be associated with a member of the exchange, or with a broker or dealer. The Commission previously has stated that the inclusion of public, nonindustry representatives on exchange oversight bodies is an important mechanism to support an exchange’s ability to protect the public interest.59 Further, the presence of public, nonindustry representatives can help to ensure that no single group of market participants has the ability to systematically disadvantage other market participants through the exchange governance process. Public directors can provide unbiased perspectives, which may enhance the ability of the 24X Board to address issues in a non-discriminatory fashion and foster the integrity of the Exchange. 2. Exchange Committees 24X has proposed to establish several named committees of the 24X Board, including an Appeals Committee 60 and a Regulatory Oversight Committee,61 as well as the Nominating Committee and Member Nominating Committee, discussed above.62 The Appeals the registration of BATS Exchange, Inc.) (‘‘BATS Order’’); 53128 (Jan. 13, 2006), 71 FR 3550, 3553 (Jan. 23, 2006) (File No. 10–131) (granting the exchange registration of Nasdaq Stock Market, Inc.) (‘‘Nasdaq Order’’). 58 15 U.S.C. 78f(b)(3). 59 See, e.g., Sapphire Order, supra note 57, at 58850; MEMX Order, supra note 57, at 27452; LTSE Order, supra note 57, at 21843, MIAX PEARL Order, supra note 57, at 92903; MIAX Order, supra note 57, at 73067; BATS Order, supra note 57, at 49501; Nasdaq Order, supra note 57, at 3553. 60 See 24X LLC Agreement, Article VI, Section 6.2(f). The Appeals Committee will preside over all appeals related to disciplinary and adverse action determinations in accordance with 24X rules. Id. 61 See 24X LLC Agreement, Article VI, Section 6.2(h). The Regulatory Oversight Committee will be responsible for overseeing the adequacy and effectiveness of the Exchange’s regulatory and selfregulatory organization responsibilities, assessing the Exchange’s regulatory performance, and assisting the 24X Board and Committees in reviewing the regulatory plan and the overall effectiveness of the Exchange’s regulatory functions. Id. See also infra section III.B.3. 62 The 24X Board could also establish additional committees. See 24X LLC Agreement, Article VI, E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices lotter on DSK11XQN23PROD with NOTICES1 Committee will consist of two Independent Directors and one Member Representative Director.63 Each member of the Regulatory Oversight Committee must be an Independent Director.64 The named committees that 24X proposed, which are similar to the named committees maintained by other exchanges,65 are designed to help enable the Exchange to carry out its responsibilities under the Exchange Act and are consistent with the Exchange Act, including section 6(b)(1), which requires, in part, an exchange to be so organized and have the capacity to carry out the purposes of the Exchange Act.66 The Commission received one comment on Exhibit J of 24X’s Form 1.67 Regarding the proposed 24X Board and committees, this commenter stated that filling in the charts set forth in Exhibit J of 24X’s Form 1 with ‘‘TBD’’ and ‘‘TO BE PROVIDED’’ ‘‘does not provide the Commission with sufficient information with which to assess compliance with the law or Commission Rules.’’ 68 The commenter further stated that ‘‘[t]he Exchange failed to provide the names, classifications, terms, and types of businesses of the persons to fill the required roles. The point of the chart is to have those boxes filled in. They are ‘to be provided’ now—not in the future. What would be the basis for the Commission’s approval?’’ 69 24X stated that it has not commenced operations and that ‘‘[o]nce directors and committee members are determined,’’ 24X will update its Form 1 as required under Rule 6a–2 under the Exchange Act.70 Exhibit J requires certain information for officers, governors, members of all standing committees, or persons performing similar functions, who ‘‘presently hold or have held their offices or positions during the previous year.’’ 71 Exhibit J of 24X’s Form 1 Section 6.2(a). All committees of the 24X Board will be subject to the control and supervision of the 24X Board. Id. 63 See 24X LLC Agreement, Article VI, Section 6.2(f). 64 See 24X LLC Agreement Article VI, Section 6.2(h)(v). 65 See, e.g., Securities Exchange Act Release No. 78101 (June 17, 2016), 81 FR 41142 (June 23, 2016) (File No. 10–222) (order granting the registration of IEX (‘‘IEX Order’’)); Article IV, Section 4.1 of the Eleventh Amended and Restated Bylaws of Cboe Exchange, Inc. 66 15 U.S.C. 78f(b)(1). 67 See Healthy Markets Letter at 2–6. 68 Id. at 5. 69 Id. at 5. 70 See 24X Letter II at 16–17. 71 For any individual that presently holds or has held their offices or positions during the previous year, Exhibit J requires their name, title, dates of commencement and termination of term of office or position, and type of business in which each is VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 application indicates that Dmitri Galinov will be the ‘‘Industry/Chief Executive Officer’’ of 24X. Exhibit J also lists Dmitri Galinov as the Head of Equities for 24X, and other officers of 24X including David Sassoon as General Counsel; Jeremy Sanchez as Chief Regulatory Officer; and Jason Woerz as Chief Operating Officer. 24X has not yet commenced operations, and therefore, the nomination and election processes to fill the rest of 24X’s Board and committees, as set forth in the 24X LLC Agreement, have not been initiated. Upon approval of 24X’s Form 1 application, however, 24X US, as the sole owner of 24X, is required to elect only those persons to the 24X Board and committees that meet the stated compositional requirements set forth in the 24X LLC Agreement, and pursuant to Rule 6a–2 of the Exchange Act, 24X must file an amendment to its Form 1 providing the name, classification, term, and type of business of each person who will be on the 24X Board and 24X committees within 10 days after 24X US elects such persons to the 24X Board, or the Chairman of the 24X Board appoints individuals to the various 24X committees.72 The information provided by 24X in Exhibit J is consistent with the requirements of the form and the Exchange Act. B. 24X Bermuda and Regulation of the Exchange When 24X commences operations as a national securities exchange, it will have all of the attendant regulatory obligations under the Exchange Act. In particular, 24X will be responsible for the operation and regulation of its trading system and the regulation of its members. Certain provisions in both the 24X and 24X Bermuda governing documents are designed to facilitate the ability of 24X to fulfill its regulatory obligations and to help facilitate Commission oversight of 24X. The discussion below summarizes some of these key provisions.73 1. Ownership Structure; Ownership and Voting Limitations As stated above, 24X will be owned indirectly by 24X Bermuda. The 24X Bermuda LLC Agreement includes primarily engaged (e.g., floor broker, specialist, odd lot dealer, etc.). 72 See 17 CFR 240.6a–2. See also 24X LLC Agreement, Article VI, Section 6.2(b)(i). 73 Because 24X US is the sole member of 24X (see 24X LLC Agreement), and 24X Bermuda is the sole member of 24X US (see 24X US LLC Agreement) and thus indirectly wholly owns and controls 24X, for purposes of this Order, the Commission bases its findings on provisions in the 24X Bermuda LLC Agreement, as the ultimate owner of 24X. PO 00000 Frm 00160 Fmt 4703 Sfmt 4703 97095 restrictions on the ability to own and vote units representing a fractional part of the interest in 24X Bermuda (‘‘Units’’).74 These limitations are designed to prevent any party to the 24X Bermuda LLC Agreement from exercising undue control over the operation of the Exchange and to ensure that the Exchange and the Commission are able to carry out their regulatory obligations under the Exchange Act.75 In particular, for so long as 24X Bermuda shall control, directly or indirectly, 24X, no Person,76 either alone or together with its Related Persons,77 will be permitted to own, 74 ‘‘Unit’’ means ‘‘(i) any Common Units (including Profits Units), Non-Voting Units or Preferred Units purchased or otherwise acquired by any Member; (ii) any equity securities issued or issuable directly or indirectly with respect to any of the foregoing Units by way of Unit distribution or split or in connection with a combination of Units, recapitalization, merger, consolidation or other reorganization; and (iii) any other units of any class or series of ownership interests of the Company held by a Member, including with respect to Convertible Securities or Options.’’ See 24X Bermuda LLC Agreement, Article 1, 1.72 75 These provisions are consistent with ownership and voting limits approved by the Commission for other SROs. See, e.g., Sapphire Order, MEMX Order, LTSE Order, MIAX PEARL Order, MIAX Order, and BATS Order supra note 57; IEX Order, supra note 65, see also Securities Exchange Release Nos. 6068 (Feb. 4, 2016) (File No. 10–221) (order granting exchange registration of ISE Mercury, LLC) (‘‘ISE Mercury Order’’); 70050 (July 26, 2013), 78 FR 46622, 46624 (Aug. 1, 2013) (File No. 10–209) (order granting the exchange registration of ISE Gemini, LLC) (‘‘ISE Gemini Order’’); 62158 (May 24, 2010), 75 FR 30082 (May 28, 2010) (CBOE–2008– 88) (Cboe demutualization order); 53963 (June 8, 2006), 71 FR 34660 (June 15, 2006) (SR–NSX–2006– 03) (NSX demutualization order); 51149 (Feb. 8, 2005), 70 FR 7531 (Feb. 14, 2005) (SR–CHX–2004– 26) (CHX demutualization order); 49098 (Jan. 16, 2004), 69 FR 3974 (Jan. 27, 2004) (SR–Phlx–2003– 73) (Phlx demutualization order). 76 ‘‘Person’’ means ‘‘any individual, partnership, joint venture, company, limited liability company, trust, or other association or entity.’’ See 24X Bermuda LLC Agreement, Article 1, 1.41. 77 ‘‘Related Persons’’ means ‘‘[with] respect to any Person: (a) any ‘affiliate’ of such Person (as such term is defined in Rule 12b–2 under the Exchange Act); (b) any other Person with which such first Person has any agreement, arrangement or understanding (whether or not in writing) to act together for the purpose of acquiring, voting, holding or disposing of Units; (c) in the case of a Person that is a company, corporation or similar entity, any executive officer (as defined under Rule 3b–7 under the Exchange Act) or director of such Person and, in the case of a Person that is a partnership or limited liability company, any general partner, managing member or manager of such Person, as applicable; (d) in the case of any Person that is a registered broker or dealer that has been admitted to membership in the national securities exchange known as 24X National Exchange, any Person that is associated with such member (as determined using the definition of ‘person associated with a member’ as defined under Section 3(a)(21) of the Exchange Act); (e) in the case of a Person that is a natural person and member of 24X National Exchange, any broker or dealer that is also a member of 24X National Exchange with which such Person is associated; (f) in the case of E:\FR\FM\06DEN1.SGM Continued 06DEN1 97096 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices lotter on DSK11XQN23PROD with NOTICES1 directly or indirectly, of record or beneficially, more than 40% of the then issued and outstanding Units.78 A more restrictive condition will apply to Exchange Members, who either alone or together with their Related Persons, will be prohibited from owning, directly or indirectly, of record or beneficially, more than 20% of the then issued and outstanding Units.79 If any party to the 24X Bermuda LLC Agreement purports to transfer 80 any Units in violation of these ownership limits, 24X Bermuda will be required (to the extent funds are legally available) to redeem the Units in excess of the applicable ownership limit.81 a Person that is a natural person, any relative or spouse of such Person, or any relative of such spouse who has the same home as such Person or who is a manager or officer of the Company, any subsidiary of the Company, or any of the Company’s parent companies; (g) in the case of a Person that is an executive officer (as defined under Rule 3b–7 under the Exchange Act) or a director of a company, corporation or similar entity, such company, corporation or entity, as applicable; or (h) in the case of a Person that is a general partner, managing member or manager of a partnership or limited liability company, such partnership or limited liability company, as applicable.’’ See 24X Bermuda LLC Agreement, Article 1, 1.49. 78 See 24X Bermuda LLC Agreement, Article 9, Section 9.2(a)(i). There are limited exceptions to these prohibitions. See infra notes 84–85 and accompanying text. 79 See 24X Bermuda LLC Agreement, Article 9, Section 9.2(a)(ii). This restriction on ownership by Exchange Members cannot be waived. See id. at Article 9, Section 9.2(b)(ii). 80 ‘‘Transfer’’ means ‘‘any sale, transfer, conveyance, exchange, pledge, gift, donation, assignment, or other disposition of Units, whether voluntary or involuntary, and whether during the lifetime of the Person involved or upon or after his death, including, but not limited to, any disposition by operation of law, by court order, by judicial process, or by foreclosure, levy, or attachment. ‘Transfer’ when used as a verb shall have a correlative meaning. ‘Transferor’ and ‘Transferee’ mean a Person who makes or receives a Transfer, respectively.’’ See 24X Bermuda LLC Agreement, Article 1, Section 1.71. See also id. at Article 9, Section 9.2(f)(i). 81 See 24X Bermuda LLC Agreement, Article 9, Section 9.2(f)(iii). The price of the redeemed Units or Unit Equivalents is also prescribed in the 24X Bermuda LLC Agreement. See id. The number of Units or Unit Equivalents to be redeemed is to be calculated after taking into account that the redeemed Units or Unit Equivalents will become treasury shares and will no longer be deemed to be outstanding. See id. It is further provided in the 24X Bermuda LLC Agreement that any Units or Unit Equivalents that have been called for redemption may not be deemed outstanding Units or Unit Equivalents if a sum sufficient to redeem the Units or Unit Equivalents has been irrevocably deposited or set aside to pay the redemption price. From and after the redemption date (unless 24X Bermuda defaults in providing funds for the payment of the redemption price), the redeemed Units or Unit Equivalents that have been redeemed will become treasury shares, and all rights of the holder of the redeemed Units or Unit Equivalents in 24X Bermuda (except the right to receive from 24X Bermuda the redemption price against delivery to 24X Bermuda of evidence of ownership of the shares) will cease. See id. In addition, in the event that any redemption has resulted in any person VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 In addition, no Person, alone or together with its Related Persons, may, directly, indirectly, or pursuant to any voting trust, agreement, plan or other arrangement, vote or cause the voting of Units or give any consent or proxy with respect to Units representing more than 20% of the voting power of the then issued and outstanding Units (‘‘Voting Limitation’’).82 Further, no Person, either alone or together with its Related Persons, under circumstances that would result in the Units that are subject to such agreement, plan, or other arrangement not being voted on any matter or matters or any proxy relating thereto being withheld, where the effect of such agreement, plan, or other arrangement would be to enable any Person, either alone or together with its Related Persons, to vote, possess the right to vote, or cause the voting of Units that would represent more than 20% of such voting power.83 The 24X Bermuda Board of Managers will be permitted to waive the 40% ownership limitation and the 20% Voting Limitation pursuant to a resolution duly adopted by the 24X Bermuda Board of Managers if it makes certain determinations.84 Any such waiver will not be effective unless and until approved by the Commission.85 Any Person that proposes to own Units in excess of the 40% ownership limitation, or to vote or grant any owning such number of Units or Unit Equivalents that is in violation of the ownership limits, 24X Bermuda will be required to redeem those Units or Unit Equivalents pursuant to the limitation provisions. See id. 82 See 24X Bermuda LLC Agreement, Article 9, Section 9.2(a)(iii). 83 See id. 84 See 24X Bermuda LLC Agreement, Article 9, Section 9.2(b)(ii). See also supra note 79 (concerning the inability to waive restrictions for Exchange Members). The required determinations are that such waiver will not impair the ability of the Exchange to carry out its functions and responsibilities as an ‘‘exchange’’ under the Exchange Act and the rules and regulations promulgated thereunder; that such waiver is otherwise in the best interests of 24X Bermuda, its members, and the Exchange; that such waiver will not impair the ability of the Commission to enforce the Exchange Act and the rules and regulations promulgated thereunder; and that such Person and its Related Persons are not subject to any applicable ‘‘statutory disqualification’’ within the meaning of Section 3(a)(39) of the Exchange Act. See id. See also 24X US LLC Agreement, Section III(b)(ii)(B). These provisions are consistent with ownership and voting limits approved by the Commission for other SROs. See, e.g., Sapphire Order, MEMX Order, LTSE Order, MIAX PEARL Order, MIAX Order, and BATS Order, supra note 57, IEX Order, supra note 65, ISE Mercury Order and ISE Gemini Order, supra note 75; and Securities Exchange Act Release No. 61698 (Mar. 12, 2010), 75 FR 13151 (Mar. 18, 2010) (File Nos. 10–194 and 10–196) (order approving DirectEdge exchanges) (‘‘DirectEdge Exchanges Order’’). 85 See 24X Bermuda LLC Agreement, Article 9, Section 9.2(b)(ii). PO 00000 Frm 00161 Fmt 4703 Sfmt 4703 proxies or consents with respect to Units constituting more than 20% of the voting power of the then outstanding Units, will be required to deliver written notice to the 24X Bermuda Board of Managers of its intention.86 The notice must be delivered to the 24X Bermuda Board of Managers not less than 45 days (or any shorter period to which the Board of Managers expressly consents) before the proposed ownership of such Units or the proposed vote.87 The 24X Bermuda LLC Agreement also contains provisions that are designed to further safeguard the ownership limitation and Voting Limitation described above or are otherwise related to direct and indirect changes in control. Specifically, any Person that, either alone or together with its Related Persons beneficially owns, directly or indirectly (whether by acquisition or a change in the number of Units outstanding), of record or beneficially 5% or more of the then outstanding Units will be required to notify the 24X Bermuda Board of Managers in writing of such ownership.88 Thereafter, such persons will be required to update 24X Bermuda of any increase or decrease of 1% or more in their previously reported ownership percentage.89 The 24X LLC Agreement does not include change of control provisions that are similar to those in the 24X Bermuda LLC Agreement and the 24X US LLC Agreement because the 24X LLC Agreement instead explicitly identifies its sole owner as 24X US, and in turn the 24X US LLC Agreement explicitly identifies 24X Bermuda as its sole owner.90 Thus, any changes in the ownership of 24X would require the 24X LLC Agreement to be amended. Any amendment to the 24X LLC Agreement, including to ownership of 86 See 24X Bermuda LLC Agreement, Article 9, Section 9.2(d). 87 See id. 88 See 24X Bermuda LLC Agreement, Article 9, Section 9.2(e)(i). The notice will require the Person’s full legal name; the Person’s title or status and the date on which such title or status was acquired; the Person’s and its Related Person’s) approximate ownership interest in 24X Bermuda; and whether the person has power, directly or indirectly, to direct the management or policies of 24X Bermuda, whether through ownership of securities, by contract or otherwise. See id. 89 See 24X Bermuda LLC Agreement, Article 9, Section 9.2(e)(ii). Changes of less than 1% must also be reported to 24X Bermuda if they result in such Person crossing a 20% or 40% ownership threshold. See id. In addition, the Exchange’s rules also impose limits on affiliation between the Exchange and a Member of the Exchange. See 24X Rule 2.10 (No Affiliation between Exchange and any Member). 90 See 24X LLC Agreement (introductory text) and Second Amended and Restated Limited Liability Company Agreement of 24X US (introductory text). E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices 24X, would constitute a proposed rule change under section 19(b) of the Exchange Act 91 and Rule 19b–4 92 thereunder that will be required to be filed with, or filed with and approved by, the Commission.93 Moreover, pursuant to the 24X LLC Agreement, any transfer of limited liability company interests of 24X will be subject to prior approval by the Commission pursuant to the rule filing procedure under section 19 of the Exchange Act.94 Although 24X Bermuda is not directly responsible for regulation, its activities with respect to the operation of 24X must be consistent with, and must not interfere with, the self-regulatory obligations of 24X.95 As described above, the provisions applicable to changes in control of 24X Bermuda (through changes in ownership of Units in 24X Bermuda) as well as the Voting Limitation imposed on owners of 24X Bermuda who also are Exchange Members, are designed to help prevent any owner of 24X Bermuda from exercising undue influence or control, either direct or indirect, over the operation of the Exchange and to help ensure that the Exchange retains a sufficient degree of independence to effectively carry out its regulatory obligations under the Exchange Act. In addition, these limitations are designed to address the conflicts of interests that might result from a member of a national securities exchange owning interests in the exchange. As the Commission has stated in the past, an exchange member’s ownership interest in an entity that controls an exchange could become so large as to cast doubt on whether the exchange may fairly and objectively exercise its self-regulatory responsibilities with respect to such member.96 An exchange member that is a controlling shareholder of an exchange could seek to exercise that controlling influence by directing the exchange to refrain from, or the exchange may hesitate to, diligently monitor and conduct surveillance of the member’s conduct or diligently enforce the exchange’s rules and the federal securities laws with respect to conduct by the member that violates such 91 15 U.S.C. 78s(b). CFR 240.19b–4. 93 See 24X LLC Agreement, Article X, Section 10.3. 94 See 24X LLC Agreement, Article V, Section 5.2(a). 95 See, e.g., Sapphire Order, supra note 57, IEX Order, supra note 65. 96 See, e.g., Sapphire Order, MEMX Order, LTSE Order, MIAX PEARL Order, MIAX Order, and BATS Order, supra note 57, ISE Mercury Order, supra note 75, IEX Order, supra note 65; and DirectEdge Exchanges Order, supra note 84. lotter on DSK11XQN23PROD with NOTICES1 92 17 VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 provisions. As such, these requirements are designed to minimize the potential that a person or entity can improperly interfere with or restrict the ability of the Exchange to effectively carry out its regulatory oversight responsibilities under the Exchange Act. The Commission received one comment addressing the governance structure proposed by 24X.97 This commenter stated 24X’s ownership and voting structure ‘‘facially violate Commission Rules and the law.’’ 98 According to this commenter ‘‘[24X] asserts that if the Commission approves its application, it has internal company documents that promise (to itself) that it will come into compliance with the law and Commission Rules within nine months of the approval. It is unclear whether or how this promise for future compliance would be enforceable, much less by whom.’’ 99 In response to the commenter’s concern about 24X’s ownership and voting structure, 24X explained that ‘‘although the Exchange Act does not set forth any specific ownership and voting limitations applicable to exchanges, the Commission typically has expected exchanges to include in their governing documents certain limitations on ownership and voting. 24X’s application includes each of these typical limitations on ownership and voting.’’ 100 24X stated that ‘‘[t]he only exception to such limitations is a request for a very brief, temporary exemption from certain ownership and voting limitation[s].’’ 101 24X’s and 24X Bermuda’s proposed governance provisions are consistent with the Exchange Act, including section 6(b)(1), which requires, in part, an exchange to be so organized and have the capacity to carry out the purposes of the Exchange Act.102 In particular, these requirements are designed to minimize the potential that a person could improperly interfere with or restrict the ability of the Commission or 24X to effectively carry out their regulatory oversight responsibilities under the Exchange Act. 24X has proposed ownership and voting limitations in Article 9, Section 9.2 of the 24X Bermuda LLC Agreement that are consistent with the ownership and voting limitations in place across all other national securities exchanges,103 and thus are designed to enable 24X to 97 See 98 Id. Healthy Markets Letter at 2–6. at 2. 99 Id. 100 24X Letter II at 16. See also infra section III.B.1.a. 102 15 U.S.C. 78f(b)(1). 103 See supra note 75. 101 Id. PO 00000 Frm 00162 Fmt 4703 Sfmt 4703 97097 meet its obligations under the Exchange Act. a. Temporary Exemption 24X proposes that Dmitri Galinov and his Related Persons 104 have a temporary exemption from the ownership limitation set forth in Section 9.2 of the 24X Bermuda LLC Agreement until nine (9) months after the Commission grants 24X’s application for registration as a national securities exchange or until 24X commences operation, if later than nine (9) months.105 Further, 24X proposes in the 24X Bermuda LLC Agreement that if Dmitri Galinov and his Related Persons do not comply with the ownership limitation in Section 9.2 of the 24X Bermuda LLC Agreement within the applicable time period, then 24X Bermuda shall redeem all of the Units the holding of which by Dmitri Galinov and/or his Related Persons results in a violation of Section 9.2 for a price per Unit, as applicable, equal to the lesser of (a) book value or (b) Fair Market Value of such Units.106 24X also proposes that Dmitri Galinov and his Related Persons shall have a temporary exemption from the Voting Limitation set forth in Section 9.2 of the 24X Bermuda LLC Agreement until nine (9) months after the Commission grants 24X’s application for registration as a national securities exchange or until 24X commences operation, if later than nine (9) months, but only with respect to any vote regarding any merger, consolidation or dissolution of the 24X Bermuda or any sale of all or substantially all of the assets of the 24X Bermuda.107 Exhibit K of 24X’s Form 1 application provides that ‘‘Dmitri Galinov owns 7,000,000 Common Units and 179,215 Seed-3 Preferred Units, for a total of 7,179,215 Units for all classes outstanding,’’ 108 and that ‘‘Dmitri Galinov is a Related Person of KNG CAPITAL LLC, Tanya NazarovKenneally, and Vladimir Nazarov. KNG CAPITAL LLC owns 320,616 Seed-1 Preferred Units, which represents 1.85% of all classes of outstanding Units. 104 See infra notes 108–110 and accompanying text for a description of the Related Persons of Dmitri Galinov. 105 See 24X Bermuda LLC Agreement, Article 9, Section 9.2(g)(i). While 24X Bermuda LLC Agreement, Article 9, Section 9.2(a)(ii) sets forth an ownership restriction that applies to 24X Exchange Members, this provision does not apply to Mr. Galinov; the ownership limitation that does apply to Dmitri Galinov and his Related Persons is set forth in 24X Bermuda LLC Agreement, Article 9, Section 9.2(a)(i). 106 See 24X Bermuda LLC Agreement, Article 9, Section 9.2(g)(i). 107 See 24X Bermuda LLC Agreement, Article 9, Section 9.2(g)(ii). 108 See Exhibit K, footnote 2. E:\FR\FM\06DEN1.SGM 06DEN1 lotter on DSK11XQN23PROD with NOTICES1 97098 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices Tanya Nazarov-Kenneally owns 1794 Seed-3 Preferred Units, which represents 0.01% of all classes of outstanding Units. Vladimir Nazarov owns 7176 Seed-3 Preferred Units, which represents 0.04% of all classes of outstanding Units.’’ 109 Accordingly, Exhibit K states that ‘‘on an aggregate basis, Dmitri Galinov, together with his Related Persons, owns 43.29% of the Units of all classes of outstanding Units.’’ 110 In a letter, 24X stated that the temporary exemption would provide it with a brief period to bring its ownership and voting structure in line with the ownership and voting restrictions upon SEC approval.111 24X also stated that the Commission had granted ‘‘prior exchange applications with such limited exceptions to the ownership and voting restrictions.’’ 112 The Commission finds that the limited temporary exemption in Article 9, Section 9.2(g) of the 24X Bermuda LLC Agreement from the ownership limitation and Voting Limitation set forth in Article 9, Section 9.2 of the 24X Bermuda LLC Agreement for Dmitri Galinov and his Related Persons is consistent with the Exchange Act. As discussed above, the ownership limitation and Voting limitation are designed to prevent any party from exercising undue control over the operation of the 24X and ensure that 24X is able to carry out its regulatory obligations under the Exchange Act. The exemption is designed to prevent Dmitri Galinov and his Related Persons from exercising undue control over 24X and minimize the possibility that 24X’s ability to carry out its self-regulatory responsibilities under the Exchange Act could be impaired. Specifically, the exemption is for a defined period of time that is based on 24X’s approval as a national securities exchange or commencement of its exchange operations. Thus, the exemption is designed to ensure that once 24X is a self-regulatory organization (‘‘SRO’’), the exemption will terminate within a specified period of time. In addition, the exemption from the Voting Limitation applies only with respect to the limited situations involving any merger, consolidation or dissolution of the 24X Bermuda or any sale of all or substantially all of the assets of the 24X Bermuda that will not permit undue control over 24X or impair the 109 Id. 110 Id. 111 See 24X Letter II at 16. 24X cited Securities Exchange Act Release No. 42455 (Feb. 24, 2000) as support for its statement. 112 Id. VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 regulatory responsibilities of 24X. The temporary exemption is designed to afford Dmitri Galinov and his Related Persons the ability to protect the investment they have already made in the establishment of 24X that is over the current ownership limitation, represented by 24X to be 3.29% of the Units of all outstanding Units.113 As part of its Form 1 application, 24X also has included in the 24X Bermuda LLC Agreement a representation that 24X Bermuda will redeem all of the Units the holding of which by Dmitri Galinov and/or his Related Persons results in a violation of the applicable 40% ownership limitation for a price per Unit, as applicable, equal to the lesser of (a) book value or (b) Fair Market Value of such Units. The 24X Bermuda LLC Agreement further provides that such redemption shall occur nine (9) months after the date of approval by the Commission of 24X’s Form 1 application or until commencement of the operation of 24X, if later than nine (9) months. Thus, in response to the commenter, 24X has established a mechanism to ensure compliance with the ownership limitation and Voting Limitation set forth in the 24X Bermuda LLC Agreement upon expiration of the stated time period. 24X Bermuda’s Managers and officers must comply with the federal securities laws and the rules and regulations promulgated thereunder and are deemed to agree to cooperate with the Commission and 24X in respect of the Commission’s oversight responsibilities regarding 24X and the self-regulatory functions and responsibilities of 24X.114 Therefore, should there be a need to pursue enforcement of the redemption requirement required of 24X Bermuda, 24X Bermuda’s Managers and officers must comply with the obligation and must cooperate with those efforts by the Commission and 24X to ensure that 113 See Exhibit K, footnote 2. The Commission has approved other temporary exemptions from the ownership or voting limitations included in the governance documents of owners of a national securities exchange. See Securities Exchange Act Release No. 49067 (Jan. 13, 2004), 69 FR 2761 (Jan. 20, 2004) (order granting approval to a proposed rule change by the Boston Stock Exchange Inc. Relating to the LLC Operating Agreement of the Proposed New Exchange Facility to be Operated by the Boston Options Exchange Group LLC)(approval of an exemption from a voting limitation for a period of 10 years for an owner of the BOX facility). See also Securities Exchange Act Release No. 42455 (Feb. 24, 2000), 65 FR 11388 (Mar. 2, 2000) (File No. 10–127) (order granting registration of the International Securities Exchange LLC)(approval of an exemption from an ownership limitation for period of 10 years for certain founders of the exchange). 114 See 24X Bermuda LLC Agreement, Article 3, Section 3.4(b). PO 00000 Frm 00163 Fmt 4703 Sfmt 4703 such redemption occurs. Finally, should 24X Bermuda not redeem the Units owned by Dmitri Galinov and his Related Persons within the specified time period, the Commission may take action against 24X under section 19(h) of the Exchange Act.115 2. Regulatory Independence and Oversight Although 24X Bermuda will not itself carry out regulatory functions, its activities with respect to the operation of 24X must be consistent with, and must not interfere with, 24X’s selfregulatory obligations. In this regard, 24X and 24X Bermuda propose to adopt certain provisions in their respective governing documents that are designed to help maintain the independence of the regulatory functions of 24X. These proposed provisions are substantially similar to those included in the governing documents of other exchanges that recently have been granted registration.116 Specifically: • the managers, officers, employees, and agents of 24X Bermuda must give due regard to the preservation of the independence of the self-regulatory function of 24X and to its obligations to investors and the general public and must not take actions which would interfere with the effectuation of decisions by the Exchange Board relating to its regulatory functions (including disciplinary matters) or which would interfere with 24X’s ability to carry out its responsibilities under the Exchange Act.117 115 See infra Section III.B.2. e.g., Sapphire Order, MEMX Order, LTSE Order, MIAX Order, supra note 57, IEX Order, supra note 65; and DirectEdge Exchanges Order, supra note 84. 117 See 24X Bermuda LLC Agreement, Article 3, Section 3.4(a). Similarly, Article VI, Section 6.1(a)(ii) of the 24X LLC Agreement requires the Exchange Board and each Director, when managing the business and affairs of 24X, to consider the requirements of Section 6(b) of the Exchange Act and requires each Director, officer, or employee of 24X to comply with the federal securities laws and regulations thereunder and cooperate with the Commission, and 24X pursuant to its regulatory authority. Article VI, Section 6.1(a)(iii) of the 24X LLC Agreement also requires the Exchange Board, when evaluating any proposal to take into account all factors that the Exchange Board deems relevant, including, without limitation, to the extent deemed relevant: the potential impact on the integrity, continuity and stability of the national securities exchange operated by 24X and the other operations of 24X, on the ability to prevent fraudulent and manipulative acts and practices, and on investors and the public, and whether such proposal would promote just and equitable principles of trade, foster cooperation and coordination with Persons engaged in regulating, clearing, settling, processing information with respect to and facilitating transactions in securities or assist in the removal of impediments to or perfection of the mechanisms for a free and open market and a national market system. 116 See, E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices lotter on DSK11XQN23PROD with NOTICES1 • 24X Bermuda must comply with the federal securities laws and the rules and regulations promulgated thereunder, and must cooperate with the Commission, 24X, Financial Industry Regulatory Authority, Inc. (‘‘FINRA’’), and any other SRO of which any routing broker for 24X is a member, pursuant to and to the extent of their respective regulatory authority.118 In addition, 24X Bermuda’s managers, officers, employees, and agents must comply with the federal securities laws and the rules and regulations promulgated thereunder and are deemed to agree to cooperate with: (1) the Commission and 24X in respect of the Commission’s oversight responsibilities regarding 24X and the self-regulatory functions and responsibilities of 24X; and (2) FINRA, any other SROs of which any routing broker of 24X is a member, and any routing broker of 24X in respect of FINRA’s and any such other SRO’s oversight responsibilities regarding any routing broker of 24X, as applicable.119 24X Bermuda shall take reasonable steps necessary to cause its managers, officers, employees and agents to so cooperate.120 • 24X Bermuda, and its managers, officers, employees, and agents must submit to the jurisdiction of the U.S. federal courts, the Commission, and 24X, for purposes of any suit, action or proceeding pursuant to the U.S. federal securities laws, and the rules and regulations thereunder, arising out of, or relating to, 24X activities.121 • All books and records of 24X reflecting confidential information pertaining to the self-regulatory function of 24X (including but not limited to disciplinary matters, trading data, trading practices, and audit information) must be retained in confidence by 24X and its personnel, including its Directors, officers, employees, and agents, and will not be used by 24X for any non-regulatory purposes and shall not be made available to any person (including, without limitation, any Exchange Member) other than personnel of the SEC, and those personnel of 24X, members of Committees, members of the 24X Board, hearing officers and other agents of 24X to the extent necessary or appropriate to properly discharge the self-regulatory responsibilities of 24X.122 Similar provisions apply to 24X 118 See 24X Bermuda LLC Agreement, Article 3, Section 3.4(b). 119 See id. 120 See id. 121 See 24X Bermuda LLC Agreement, Article 3, Section 3.4(c). 122 See 24X LLC Agreement, Article IX, Section 9.2. VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 Bermuda and its personnel, managers, officers, employees, and agents.123 • The books and records of 24X and 24X Bermuda must be maintained in the United States 124 and, to the extent they are related to the operation or administration of 24X, 24X Bermuda’s books and records will be subject at all times to inspection and copying by the Commission and 24X.125 • Furthermore, to the extent 24X Bermuda’s corporate, financial and similar records, reports and documents, including all financial statements, books and records and minutes of proceedings, are related to the activities of 24X, such corporate, financial and similar records, reports and documents, including all financial statements, books and records and minutes of proceedings, as well as premises, managers, officers, employees and agents of 24X Bermuda shall be deemed to be the corporate, financial and similar records, reports and documents, including all financial statements, books and records and minutes of proceedings, as well as premises, managers, officers, employees or agents, as applicable, of 24X for the purposes of, and subject to oversight pursuant to, the Exchange Act.126 • 24X Bermuda will take reasonable steps necessary to cause its manager, officers, employees, and agents, prior to accepting a position as a manager, officer, employee or agent (as applicable) with 24X Bermuda to consent in writing to the applicability of provisions regarding non-interference, confidentiality, books and records, compliance and cooperation, jurisdiction, and regulatory obligations, 123 The 24X Bermuda LLC Agreement provides that all books and records of 24X reflecting confidential information pertaining to the selfregulatory function of 24X that come into the possession of 24X Bermuda, and the information contained in those books and records, will be subject to confidentiality restrictions and will not be used for any non-regulatory purposes. See 24X Bermuda LLC Agreement, Article 12, Section 12.2(c). The 24X and 24X Bermuda governing documents acknowledge that requirements to keep such information confidential shall not limit or impede the rights of the Commission to access and examine such information or limit the ability of Directors, Officers, employees, or agents of 24X to disclose such information to the Commission, or the manager, officers, employees or agents of 24X Bermuda to disclose such information to the Commission or 24X. See 24X LLC Agreement, Article IX, Section 9.2 and 24X Bermuda LLC Agreement, Article 12, Section 12.2(c). 124 See 24X LLC Agreement, Article IX, Section 9.2; and 24X Bermuda LLC Agreement, Article 12, Section 12.2(b). 125 See 24X Bermuda LLC Agreement, Article 12, Section 12.2(b). 126 See 24X Bermuda LLC Agreement, Article 12, Section 12.2(a). PO 00000 Frm 00164 Fmt 4703 Sfmt 4703 97099 with respect to their activities related to 24X.127 • The 24X Bermuda LLC Agreement requires that, so long as 24X Bermuda controls 24X, any changes to that document must be submitted to the Exchange Board for approval, and, if such change is required to be filed with the Commission pursuant to section 19(b) of the Exchange Act and the rules and regulations thereunder, such change shall not be effective until filed with and effective by operation of law, or filed with, and approved by, the Commission.128 The provisions discussed in this section, which are designed to help ensure the independence of 24X’s regulatory function and facilitate the ability of 24X to carry out its regulatory responsibilities under, and operate in a manner consistent with, the Exchange Act, are appropriate and consistent with the requirements of the Exchange Act, particularly with Section 6(b)(1), which requires, in part, an exchange to be so organized and have the capacity to carry out the purposes of the Exchange Act.129 Further, section 19(h)(1) of the Exchange Act 130 provides the Commission with the authority ‘‘to suspend for a period not exceeding twelve months or revoke the registration of [an SRO], or to censure or impose limitations upon the activities, functions, and operations of [an SRO], if [the Commission] finds, on the record after notice and opportunity for hearing, that [the SRO] has violated or is unable to comply with any provision of the Exchange Act, the rules or regulations thereunder, or its own rules or without reasonable justification or excuse has failed to enforce compliance . . . ’’ with any such provision by its members (including associated persons thereof). If the Commission were to find, or become aware of, through staff review and inspection or otherwise, facts indicating any violations of the Exchange Act, including without limitation sections 6(b)(1) and 19(g)(1),131 these matters could provide the basis for a disciplinary proceeding under section 19(h)(1) of the Exchange Act.132 Even in the absence of the governance provisions described above, under section 20(a) of the Exchange Act,133 any person with a controlling interest in 24X would be jointly and severally 127 See 24X Bermuda LLC Agreement, Article 3, Section 3.2. 128 See 24X Bermuda LLC Agreement, Article 12, Section 12.10(b). 129 15 U.S.C. 78f(b)(1). 130 See 15 U.S.C. 78s(h)(1). 131 15 U.S.C. 78f(b)(1); 15 U.S.C. 78s(g)(1). 132 15 U.S.C. 78s(h)(1). 133 15 U.S.C. 78t(a). E:\FR\FM\06DEN1.SGM 06DEN1 97100 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices liable with and to the same extent that 24X is liable under any provision of the Exchange Act, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. In addition, section 20(e) of the Exchange Act 134 creates aiding and abetting liability for any person who knowingly provides substantial assistance to another person in violation of any provision of the Exchange Act or rule thereunder. Further, section 21C of the Exchange Act 135 authorizes the Commission to enter a cease-and-desist order against any person who has been ‘‘a cause of’’ a violation of any provision of the Exchange Act through an act or omission that the person knew or should have known would contribute to the violation. These provisions are applicable to 24X Bermuda. 3. Regulatory Oversight Committee The regulatory operations of 24X will be monitored by the Regulatory Oversight Committee of the Exchange Board. As mentioned above, the Regulatory Oversight Committee will consist only of Independent Directors.136 The Regulatory Oversight Committee will be responsible for overseeing the adequacy and effectiveness of 24X’s regulatory and SRO responsibilities, assessing 24X’s regulatory performance, and assisting the 24X Board (and committees of the 24X Board) in reviewing 24X’s regulatory plan and the overall effectiveness of 24X’s regulatory functions.137 Further, the Chief Regulatory Officer (‘‘CRO’’) of 24X will have general supervision over 24X’s regulatory operations, including responsibility for overseeing 24X’s surveillance, examination, and enforcement functions and for administering any regulatory services agreements with another SRO to which 24X is a party.138 The Regulatory Oversight Committee, in consultation with the Chief Executive Officer of 24X, will be responsible for establishing the goals, assessing the performance, and fixing the compensation of the CRO and for recommending personnel actions involving the CRO and senior regulatory personnel.139 lotter on DSK11XQN23PROD with NOTICES1 134 15 U.S.C. 78t(e). U.S.C. 78u–3. 136 See supra note 61 and accompanying text. 137 See 24X LLC Agreement, Article VI, Section 6.2(h)(i). 138 See 24X LLC Agreement, Article VIII, Section 8.5. 139 See 24X LLC Agreement, Article VI, Section 6.2(h)(iii). To the extent that the Chief Executive Officer of 24X has any indirect supervisory 135 15 VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 C. Regulatory Funding and Services As a prerequisite for the Commission’s granting of an exchange’s application for registration, an exchange must be organized and have the capacity to carry out the purposes of the Exchange Act.140 Specifically, an exchange must be able to enforce compliance by its members, and persons associated with its members, with the federal securities laws and rules thereunder and the rules of the exchange.141 The discussion below summarizes how 24X proposes to conduct and structure its regulatory operations. 1. Regulatory Funding To help ensure that 24X has and will continue to have adequate funding to be able to meet its responsibilities under the Exchange Act, 24X stated that, if the Commission approves 24X’s application for registration as a national securities exchange, 24X Bermuda, through 24X US, will allocate sufficient assets to 24X to enable the Exchange’s operation.142 Specifically, 24X stated that 24X Bermuda shall make prior to the launch of the Exchange a cash contribution of $5 million (in addition to any previously provided in-kind contributions, such as legal, regulatory, and infrastructure-related services) to 24X US. In turn, 24X US will make a corresponding cash contribution of $5 million (in addition to any previously provided in-kind contributions, such as legal, regulatory, and infrastructurerelated services) to the Exchange. The Exchange represented that such cash and in-kind contributions will be adequate to operate the Exchange, including the regulation of the Exchange.143 24X also represented that there will be a written agreement among 24X Bermuda, 24X US and 24X that requires 24X Bermuda and 24X US to provide adequate funding for the Exchange’s operations, including the regulation of the Exchange.144 Further, 24X stated that the agreement will provide that 24X will receive all fees, including regulatory fees and trading fees payable responsibility for the role or function of the CRO, including implementation of the budget for the regulatory function or regulatory personnel matters, the Regulatory Oversight Committee shall take all steps reasonably necessary to ensure that the Chief Executive Officer does not compromise the regulatory autonomy and independence of the Chief Regulatory Officer or the regulatory function. See 24X LLC Agreement, Article VI, Section 6.2(h)(4). 140 See 15 U.S.C. 78f(b)(1). 141 See id. See also Section 19(g) of the Exchange Act, 15 U.S.C. 78s(g). 142 See Form 1, Exhibit I. 143 See id. 144 See id. PO 00000 Frm 00165 Fmt 4703 Sfmt 4703 by the Exchange’s members as well as any funds received from any market data fees and tape revenue. In addition, the agreement will provide that 24X Bermuda and 24X US will reimburse 24X for its costs and expenses to the extent that 24X’s assets are insufficient to meet its costs and expenses. Further, the 24X LLC Agreement requires that any Regulatory Funds received by 24X shall not be used for non-regulatory purposes or distributed, advanced or allocated to any Company Member,145 but rather, shall be applied to fund regulatory operations of the 24X (including surveillance and enforcement activities), or, as the case may be, shall be used to pay restitution and disgorgement of funds intended for customers.146 Excess non-regulatory funds, as solely determined by the 24X, will be remitted to 24X US in accordance with the 24X LLC Agreement.147 One commenter stated that 24X did not provide audited financial statements.148 24X stated that it believed that it complied with the requirements of Exhibit I regarding financial statements because while 24X has been formed it has not commenced operations and does not have audited financial statements for any fiscal year.149 24X also stated that the approach it has taken with regard to Exhibit I is consistent with prior exchange applications that have been approved by the SEC based on the same provided information.150 The 24X Form 1 provides the Commission with information necessary to make a finding that 24X will operate consistent with its obligations under the Exchange Act.151 24X has filed financial information about how it intends to fund its operations and has filed financial information in Exhibit D about its owners, 24X Bermuda and 24X US. 145 Under the 24X LLC Agreement, the Company Member is 24X US. 146 See 24X LLC Agreement, Article XI, Section 11.4(b). ‘‘Regulatory Funds’’ in the 24X LLC Agreement means ‘‘fees, fines or penalties derived from the regulatory operations of the Company. ‘‘Regulatory Funds’’ shall not be construed to include revenues derived from listing fees, market data revenues, transaction revenues, or any other aspect of the commercial operations of the Company, even if a portion of such revenues are used to pay costs associated with the regulatory operations of the Company.’’ Article I, ll of the 24X LLC Agreement. This definition is consistent with the rules of other SROs. See, e.g., LTSE Bylaws, Article I(bb); Amended and Restated By-Laws of MIAX Exchange, Article 1(ll); By-Laws of NASDAQ PHLX LLC, Article I(ii); By-Laws of NASDAQ BX, Inc., Article I(ii). See also 24X Rule 15.2. 147 See Form 1, Exhibit I. 148 See Healthy Markets Letter at 2. 149 See 24X Letter II at 16. 150 Id. 151 15 U.S.C. 78f(b)(1). E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices Exhibit I of Form 1 requires that the applicant submit ‘‘[f]or the latest fiscal year of the applicant, audited financial statements which are prepared in accordance with, or in the case of a foreign applicant, reconciled with, United States generally accepted accounting principles, and are covered by a report prepared by an independent public accountant.’’ 152 24X has not provided audited financial statements nor the report prepared by an independent public accountant because, as it stated in the Form 1, the ‘‘Exchange has been formed but has not commenced operations and does not yet have audited financial statements for any fiscal year.’’ 153 As stated in the instructions for Form 1, ‘‘Form 1 is designed to enable the Commission to determine whether an exchange applying for registration is in compliance with the provisions of sections 6 154 and 19 155 of the Exchange Act.’’ 156 In this case, the applicant exchange has no past operations or activity. Moreover, the Commission has approved prior Form 1 applications with similar circumstances.157 In addition, pursuant to Rule 6a–2(b)(1) of the Exchange Act,158 as a registered national securities exchange, 24X must file an amendment to its Form 1 application. Exhibits D and I must be filed on or before June 30 of each year and include audited financial information as of the end of the latest fiscal year of the Exchange; thus, the Commission and the public will be informed of 24X’s financial activity going forward.159 2. Regulatory Contract With FINRA Although 24X will be an SRO with all of the attendant regulatory obligations under the Exchange Act, it has represented to the Commission that it intends to enter into a regulatory services agreement (‘‘RSA’’) with 152 17 CFR 249.1. Form 1, Exhibit I. 154 15 U.S.C. 78f. 155 15 U.S.C. 78s. 156 17 CFR 249.1. 157 See e.g., Exhibit I for MIAX Sapphire, LLC Form 1 Application and Exhibits, available at https://www.sec.gov/files/rules/other/2023/exhibiti.pdf (stating that applicant MIAX Sapphire, LLC has been formed but has not commenced operations and does not yet have audited financial statements for any fiscal year); Exhibit I for MEMX LLC Form 1 Application and Exhibits, available at https:// www.sec.gov/files/rules/other/2019/memx/exhibiti.pdf (stating that applicant MEMX LLC has been formed but has not commenced operations and so does not yet have audited financial statements for any fiscal year). 158 17 CFR 240.6a–2(b)(1). 159 Form 1 filings are made available to the public. See Securities Exchange Act Release No. 97182 (Mar. 22, 2023), 88 FR 23920, 23928 (Apr. 18, 2023). lotter on DSK11XQN23PROD with NOTICES1 153 See VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 FINRA, under which FINRA as a regulatory services provider will perform certain regulatory functions on 24X’s behalf.160 Specifically, 24X expects that such services will include the performance of investigation, disciplinary, and hearing services.161 Notwithstanding the RSA, 24X will retain legal responsibility for the regulation of its members and its market and the performance of FINRA as its regulatory services provider. Because 24X anticipates entering into an RSA with FINRA, it has not made provisions to fulfill the regulatory services that will be undertaken by FINRA. Accordingly, the Commission is conditioning the operation of 24X on a final RSA that specifies the services that will be provided to 24X. It is consistent with the Exchange Act for 24X to contract with FINRA to perform certain examination, enforcement, and disciplinary functions.162 These functions are fundamental elements of a regulatory program and constitute core selfregulatory functions. FINRA has the expertise and experience to perform these functions for 24X.163 However, 24X, unless relieved by the Commission of its responsibility, bears the selfregulatory responsibilities and primary liability for self-regulatory failures, not the SRO retained to perform regulatory functions on 24X’s behalf.164 In performing these regulatory functions, however, FINRA may nonetheless bear liability for causing or aiding and abetting the failure of 24X to perform its regulatory functions.165 Accordingly, although FINRA will not act on its own behalf under its SRO responsibilities in carrying out these regulatory services for 24X, FINRA may have secondary liability if, for example, the Commission finds that the contracted functions are 160 See Form 1, Exhibit L. See also 24X Rules 9.8 and 13.7. 161 See Form 1, Exhibit L. 162 For example, LTSE, MEMX Exchange, IEX, MIAX Exchange, MIAX PEARL, LLC, Nasdaq MRX, LLC, Cboe EDGA Exchange, Inc., Cboe EDGX Exchange, Inc. (‘‘Cboe EDGX’’), and Cboe BZX Exchange, Inc. (‘‘Cboe BZX’’) have entered into RSAs with FINRA. 163 See, e.g., MEMX Order, supra note 57; LTSE Order, supra note 57; IEX Order, supra note 65; DirectEdge Exchanges Order, supra note 84; Nasdaq Order, supra note 57. The Commission is not approving the RSA or any of its specific terms. 164 See 15 U.S.C. 78s(g)(1). 165 For example, if failings by FINRA have the effect of leaving 24X in violation of any aspect of 24X’s self-regulatory obligations, 24X would bear direct liability for the violation, while FINRA may bear liability for causing or aiding and abetting the violation. See, e.g., MEMX Order, supra note 57; LTSE Order, supra note 57; IEX Order, supra note 65; Nasdaq Order, supra note 57; BATS Order, supra note 57; DirectEdge Exchanges Order, supra note 84. PO 00000 Frm 00166 Fmt 4703 Sfmt 4703 97101 being performed so inadequately as to cause a violation of the federal securities laws or rules thereunder by 24X.166 3. Rule 17d–2 Agreements Section 19(g)(1) of the Exchange Act,167 among other things, requires every SRO registered as either a national securities exchange or national securities association to comply with the Exchange Act, the rules and regulations thereunder, and the SRO’s own rules, and, absent reasonable justification or excuse, enforce compliance by its members and persons associated with its members.168 Rule 17d–2 of the Exchange Act permits SROs to propose joint plans to allocate regulatory responsibilities amongst themselves for their common rules with respect to their common members.169 These agreements, which must be filed with and declared effective by the Commission, generally cover areas where each SRO’s rules substantively overlap, including such regulatory functions as personnel registration and sales practices. For example, the Commission declared effective a plan to allocate regulatory responsibilities between FINRA and LTSE pursuant to which FINRA assumes examination and enforcement responsibility for brokerdealers that are members of both FINRA and LTSE with respect to the rules of LTSE that are substantially similar to the applicable rules of FINRA, as well as certain specified provisions of the federal securities laws.170 166 See, e.g., MEMX Order, supra note 57; LTSE Order, supra note 57; IEX Order, supra note 65; and Nasdaq Order, supra note 57. 167 15 U.S.C. 78s(g)(1). 168 15 U.S.C. 78q(d) and 15 U.S.C. 78s(g)(2), respectively. 169 See 15 U.S.C. 78q(d)(1) and 17 CFR 240.17d– 2. Section 17(d)(1) of the Exchange Act allows the Commission to relieve an SRO of certain responsibilities with respect to members of the SRO who are also members of another SRO (‘‘common members’’). Specifically, Section 17(d)(1) allows the Commission to relieve an SRO of its responsibilities to: (i) receive regulatory reports from such members; (ii) examine such members for compliance with the Exchange Act and the rules and regulations thereunder, and the rules of the SRO; or (iii) carry out other specified regulatory responsibilities with respect to such members. 170 See Securities Exchange Act Release No. 86587 (Aug. 7, 2019), 84 FR 39883 (Aug. 12, 2019) (File No. 4–747). See also, e.g., Securities Exchange Act Release Nos. 83696 (July 24, 2018), 83 FR 35682 (July 27, 2018) (FINRA/MIAX Exchange/MIAX PEARL); 77321 (Mar. 8, 2016), 81 FR 13434 (Mar. 14, 2016) (File No. 4–697) (FINRA/ISE Mercury, LLC); 73641 (Nov. 19, 2014), 79 FR 70230 (Nov. 25, 2014) (File No. 4–678) (FINRA/MIAX Exchange); 70053 (July 26, 2013), 78 FR 46656 (Aug. 1, 2013) (File No. 4–663) (FINRA/Topaz Exchange n/k/a ISE Gemini, LLC); 59218 (Jan. 8, 2009), 74 FR 2143 (Jan. 14, 2009) (File No. 4–575) (FINRA/Boston Stock Exchange, Inc. (‘‘BSE’’)); 58818 (Oct. 20, 2008), 73 E:\FR\FM\06DEN1.SGM Continued 06DEN1 97102 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices lotter on DSK11XQN23PROD with NOTICES1 A Rule 17d–2 plan that is declared effective by the Commission relieves the specified SRO of those regulatory responsibilities allocated by the plan to another SRO.171 24X has represented to the Commission that it will join all applicable plans, including Rule 17d–2 plans for the allocation of regulatory responsibilities.172 Similar to other exchanges, the Commission understands from 24X that it will enter into a bilateral Rule 17d–2 agreement covering common members of 24X and FINRA. This agreement will allocate to FINRA regulatory responsibility, with respect to common members, for specified regulatory and enforcement matters arising out of specified common rules and specified provisions of the Exchange Act and the rules and regulations thereunder. In addition, the Commission is conditioning operation of 24X as an exchange on 24X first joining the applicable multilateral Rule 17d–2 plans, including the multi-party Rule 17d–2 plan for the allocation of regulatory responsibilities with respect to certain Regulation NMS and Consolidated Audit Trail Rules and the multi-party Rule 17d–2 plan for the surveillance, investigation, and enforcement of common insider trading rules.173 Because 24X anticipates entering into these Rule 17d–2 agreements, it has not made provision to fulfill the regulatory obligations that will be undertaken by FINRA and other SROs under these agreements with respect to common members.174 Accordingly, the Commission is conditioning the operation of 24X on approval by the FR 63752 (Oct. 27, 2008) (File No. 4–569) (FINRA/ BATS Exchange, Inc.); 55755 (May 14, 2007), 72 FR 28087 (May 18, 2007) (File No. 4–536) (National Association of Securities Dealers, Inc. (‘‘NASD’’) n/ k/a FINRA) and Chicago Board of Options Exchange, Inc. concerning the CBOE Stock Exchange, LLC); 55367 (Feb. 27, 2007), 72 FR 9983 (Mar. 6, 2007) (File No. 4–529) (NASD/International Securities Exchange, LLC); 54136 (July 12, 2006), 71 FR 40759 (July 18, 2006) (File No. 4–517) (NASD/ Nasdaq). 171 See supra notes 169–170 and accompanying text. 172 See Form 1, Exhibit E. 173 See Securities Exchange Act Release Nos. 88366 (Mar. 12, 2020), 85 FR 15238 (Mar. 17, 2020) (File No. 4–618) (order approving and declaring effective a proposed amendment to the multi-party Rule 17d–2 plan relating to covered Regulation NMS and Consolidated Audit Trail Rules); 86542 (Aug. 1, 2019), 84 FR 38679 (Aug. 7, 2019) (File No. 4–566) (notice of filing and order approving and declaring effective an amendment to the multi-party Rule 17d–2 plan relating to the surveillance, investigation, and enforcement of insider trading rules). 174 For common members, the regulatory obligations will be covered by the Rule 17d–2 agreements, and for 24X Exchange Members that are not also members of FINRA, the regulatory obligations will be covered by the RSA. VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 Commission of a Rule 17d–2 agreement that allocates the above specified matters to FINRA, and the approval of an amendment to the existing multiparty Rule 17d–2 plans specified above to add 24X as a party. D. 24X Trading System 1. Overview of Trading System 175 24X proposes to operate a fully automated electronic trading platform 176 for the trading of listed NMS stocks 177 pursuant to unlisted trading privileges (‘‘UTP’’) 178 23 hours per day,179 five (5) days per week, subject to certain trading pauses, as provided in the 24X rules.180 Similar to other U.S. national securities exchanges, 24X will operate three different trading sessions that span from 4 a.m. to 7 p.m. on each U.S. Business Day: 181 (1) a ‘‘Core Market Session’’ between 9:30 a.m. and 4 p.m.,182 (2) a ‘‘Pre-Market Session’’ between 4 a.m. and 9:30 a.m.,183 and (3) a ‘‘Post-Market Session’’ between 4 p.m. and 7 p.m.184 24X also will operate a fourth trading session, the 24X Market Session,185 which, as 175 A more detailed description of the manner of operation of 24X’s trading system can be found in Form 1, Exhibit E. The proposed rulebook for 24X can be found in Exhibit B to 24X’s Form 1, and the governing documents for 24X, 24X US and 24X Bermuda can be found in Form 1, Exhibit A and Exhibit C. A complete set of forms concerning membership and access can be found in Form 1, Exhibit F. 176 See Form 1, Exhibit E. See also 24X Rule 11.9(b). 177 See 17 CFR 242.600(b)(55) (defining ‘‘NMS Stock’’). 178 See 24X Rule 14.1. 179 As discussed below, 24X will pause trading from 7 p.m. until 8 p.m. Monday, Tuesday, Wednesday, and Thursday nights. See 24X Rule 11.15(c)(2). Unless otherwise noted, all times referred to in this order are Eastern Time (‘‘ET’’). 180 See, e.g., 24X Rule 11.15(c); Form 1, Exhibit E–1 at 4. See also infra notes 329–338 (discussing 24X’s trading pauses). 181 See 24X Rule 1.5(ll) defining ‘‘U.S. Business Day.’’ In addition, 24X proposes, among others, the following terms: ‘‘24X Trading Day’’ (see 24X Rule (1.5(b)); ‘‘Exchange Trading Hours other than the 24X Market Session’’ (see 24X Rule 1.5(r)); ‘‘Extended Hours Trading’’ (see 24X Rule 1.5(s)); ‘‘Regular Trading Hours’’ (see 24X Rule 1.5(dd)). 24X Rule 1.5(s) defines ‘‘Extended Hours Trading’’ as ‘‘trading during the Pre-Market Session, PostMarket Session and 24X Market Session.’’ 182 See 24X Rule 1.5(l) defining the ‘‘Core Market Session.’’ 183 See 24X Rule 1.5(z) defining the ‘‘Pre-Market Session.’’ See, e.g., NYSE Arca, Inc., Cboe EDGX Exchange, Inc., The Nasdaq Stock Market LLC. 184 See 24X Rule 1.5(y) defining the ‘‘Post-Market Session.’’ See, also e.g., NYSE Arca, Inc., NYSE American LLC, NYSE Chicago, Inc., NYSE National, Inc., Cboe BZX Exchange, Inc., Cboe BYX Exchange, Inc., Cboe EDGA Exchange, Inc., Cboe EDGX Exchange, Inc., The Nasdaq Stock Market LLC. These national securities exchanges operate postmarket sessions until 8 p.m. As discussed above, 24X will end its Post-Market Session at 7 p.m. 185 See 24X Rule 1.5(c) defining the ‘‘24X Market Session.’’ PO 00000 Frm 00167 Fmt 4703 Sfmt 4703 discussed in greater detail below,186 will operate between 8 p.m. and 4 a.m. Sunday, Monday, Tuesday, Wednesday, and Thursday nights that precede a U.S. Business Day.187 24X will not maintain a physical trading floor.188 One commenter stated that the Form 1 was unclear about 24X’s physical locations.189 24X responded that it ‘‘clearly’’ provided information on the Form 1 execution page as well as Exhibit E.190 Specifically, 24X stated that its primary address is in Connecticut and that the Exchange will operate out of a third-party data center in New Jersey, with a secondary site located in Illinois.191 Further, 24X stated that 24X personnel will operate out of its New York office as well as its Connecticut office.192 The Form 1 and exhibits provide information about the location of 24X Systems and personnel. The Form 1 Execution Page states that 24X’s primary address is in Stamford, Connecticut. Exhibit E states that 24X will operate out of data centers in New Jersey and Illinois and that its personnel will operate out of offices in Connecticut and New York. Exhibit E–1 states that 24X’s trading platform will be located in the Equinix data center in New Jersey (NY4) and that its secondary back-up data center will be located in Chicago, Illinois (CH4).193 24X has provided information about the location of its platform and its personnel. Only broker-dealer members of 24X and entities that enter into market access arrangements with members (collectively ‘‘Users’’ 194) will have access to the 24X System,195 and only Authorized Traders 196 may obtain access to the 24X System on behalf of Users.197 Liquidity will be derived from quotes and orders to buy and sell 186 See infra section III.D.2. 24X Rule 1.5(c). 24X initially proposed to operate the 24X Market Session on weekends and holidays as well as overnight. In Amendment No, 2, 24X revised the 24X Rule 1.5(c) definition of 24X Market Session to include only overnight hours, as discussed above, and to remove its proposal to provide trading on weekends and holidays. 188 See Form 1, Exhibit E–1 at 2. 189 See Healthy Markets Letter at 6. 190 See 24X Letter II at 17. 191 Id. See also Form 1, Execution Page (listing Stamford, Connecticut as its primary address); Form 1, Exhibit E (describing the locations of its Systems and personnel); Form 1, Exhibit E–1 (describing the locations of the trading Systems). 192 See 24X Letter II at 17; see also Form 1, Exhibit E. 193 See also Form 1, Exhibit E. 194 See 24X Rule 1.5(mm) defining ‘‘User.’’ 195 To obtain authorized access to the 24X System, each User must enter into a User Agreement with 24X. See 24X Rule 11.3(a). See also 24X Rule 1.5(hh) defining ‘‘System.’’ 196 See 24X Rule 1.5(g). 197 See 24X Rule 11.4. 187 See E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices lotter on DSK11XQN23PROD with NOTICES1 submitted to 24X electronically by Exchange Members.198 24X proposes to operate a fully automated electronic limit order book with a continuous matching function 199 and orders resting on the book would be ranked and executed in price/time priority.200 24X proposes certain rules to govern trading during Exchange Trading Hours other than the 24X Market Session,201 while other rules and requirements would apply exclusively to trading during the 24X Market Session.202 For example, 24X proposes to accept Market Orders,203 Limit Orders 204 and Pegged Orders 205 with various modifiers and time-in-force instructions, although subject to certain limitations 206 during various trading sessions.207 Specifically, Market Orders would be accepted only during the Core Market Session; Pegged Orders would be accepted only during the Pre-Market Session, the Core Market Session, and the Post-Market Session; and Limit Orders would be accepted 198 24X proposes to have one class of membership open to registered broker-dealers. See 24X Rule 2.3 (stating, in part, that ‘‘any registered broker or dealer that is and remains a member of a national securities association registered under Section 15A(a) of the Exchange Act or a member of another national securities exchange registered under Section 6(a) of the Exchange Act or any person associated with such a registered broker or dealer shall be eligible to be, and to remain, a Member’’). 199 See Form 1, Exhibit E–1 at 2. 200 See 24X Rule 11.8(a) and 24X Rule 11.9(a)(4). 201 See 24X Rule 11.1(a). 202 See 24X Rule 11.16(a) (stating, ‘‘[e]xcept as explicitly set forth herein, each of the rules and requirements set forth in this Chapter 11 applies to trading activity during the 24X Market Session.’’). The 24X rules make specific provisions for the 24X Market Session with respect to, for example, matters such as order types permitted. See, e.g., Exhibit E–1 to 24X’s Form 1; 24X Rule 11.7. 203 24X defines the term ‘‘Market Order,’’ in part, as ‘‘[a]n order to buy or sell a stated amount of a security that is to be executed at the NBBO or better when the order reaches the Exchange.’’ See 24X Rule 11.7(a). 204 24X defines the term ‘‘Limit Order’’ as ‘‘[a]n order to buy or sell a stated amount of a security at a specified price or better. A marketable Limit Order is a Limit Order to buy (sell) at or above (below) the lowest (highest) Protected Offer (Protected Bid) for the security.’’ See 24X Rule 11.7(b). 205 24X defines the term ‘‘Pegged Order,’’ in part, as ‘‘[a] User may indicate to peg an order to a reference price, including an instruction of Primary Peg (the NBB for buy orders and NBO for sell orders, with or without offsets) or an instruction of Midpoint Peg (the midpoint of the NBBO). The System’s calculation of the NBBO would not take into account any Pegged Orders that are resting on the 24X Book. A new timestamp is created for a Pegged Order each time it is automatically repriced.’’ See 24X Rule 11.7(c). 206 See 24X Rule 11.7 (describing, among other things, order types eligible for the various 24X trading sessions). See also Form 1, Exhibit E–1 at 7. 207 See, e.g., 24X Rule 11.7; Form 1, Exhibit B. VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 during all sessions.208 Further, pursuant to 24X Rule 11.16, Market Orders and Pegged Orders are not eligible for execution during the 24X Market Session. Orders may be submitted in round lots, odd lots, or mixed lots.209 24X will permit orders to be entered, canceled, modified, executed on or routed away from 24X during the PreMarket Session, the Core Market Session, and the Post-Market Session.210 24X would also permit orders to be entered, canceled, modified or executed on the Exchange during the 24X Market Session.211 With respect to the price of executions that would occur on the Exchange,212 the 24X rules are designed to comply with short sale price test restriction under Rule 201 of Regulation SHO,213 the order protection requirements of Rule 611 of Regulation NMS,214 and the National Market System Plan to Address Extraordinary Market Volatility pursuant to Rule 608 of Regulation NMS (‘‘LULD Plan’’).215 24X will permit the use of self-trade protection (‘‘STP’’) modifiers to prevent an incoming order from executing against a resting order originating from the same market participant.216 In addition, 24X will permit firms to register as Market Makers with affirmative and negative market making obligations.217 In particular, Market Makers will be required to maintain continuous two-sided quotes of at least 100 shares only during Regular Trading Hours.218 While Market Makers would have no such obligations during the PreMarket, Post-Market or 24X Market Sessions, 24X’s proposed rules relating to Market Makers are similar to the rules 208 See 24X Rule 11.7(a)(4) for Market Orders, 24X Rule 11.7(c)(4) for Pegged Orders, and 24X Rule 11.7(b) for Limit Orders. 209 See 24X Rule 11.6(q). See also Form 1, Exhibit E–1 at 5. 210 See 24X Rule 11.1(b). 211 See 24X Rule 11.1(c) (providing, in part, that ‘‘to the extent that other Trading Centers are open during the 24X Market Session, orders may be routed away to such Trading Centers during the 24X Market Session’’). 212 As discussed above, certain rules govern trading during Exchange Trading Hours other than the 24X Market Session, while other rules and requirements apply exclusively to trading during the 24X Market Session. See supra note 201 and accompanying text. See also 24X Rule 11.1(a). 213 See 24X Rule 11.9(a)(1). See also 24X Rule 11.9(a)(5), 24X Rule 11.23, and 24X Rule 13.2. See also supra section III.D.2.f. 214 See 24X Rule 11.9(a)(2). 215 See 24X Rule 11.9(a)(3). See also section III.D.2.b. 216 See 24X Rule 11.9(d). 217 See 24X Rules 11.17 through 11.20. 218 See 24X Rule 11.20(a)(1). The term ‘‘Regular Trading Hours’’ is defined as ‘‘the time between 9:30 a.m. and 4:00 p.m. Eastern Time each U.S. Business Day.’’ See 24X Rule 1.5(dd). PO 00000 Frm 00168 Fmt 4703 Sfmt 4703 97103 of other national securities exchanges, which do not extend Market Maker obligations to extended hours trading sessions.219 In its Form 1, 24X stated that it will join and participate in any applicable national market system plan that other national securities exchanges and/or market centers have joined, including, for example, the three Equity Data Plans 220 that currently govern the collection, consolidation, processing, and dissemination of core data.221 24X further states that it would ‘‘likewise join all other applicable Plans as deemed necessary and in the interest of its Users.’’ 222 One commenter stated that the Exchange proposal was ‘‘somewhat vague’’ with regard to transaction fees and that 24X ‘‘should give a range of where fees will land compared to other exchanges.’’ 223 24X responded that its approach to fees is ‘‘typical for exchange applications’’ and that Exhibit E states that it ‘‘intends to establish a Fee Schedule setting forth all applicable transaction and other fees . . . close to launch of the Exchange’’ so that the fees reflect the ‘‘competitive landscape at that time.’’ 224 Form 1 requires an applicant to provide a description of proposed fees.225 In its Exhibit E, 24X described its proposed fees, including transaction fees, membership fees, regulatory charges, permit application fees, market 219 See, e.g., MEMX Exchange Rules 11.17 through 11.20; Cboe EDGX Rules 11.17 through 11.20. 220 The three equity data plans that currently govern the collection, consolidation, processing, and dissemination of national market system data by the exclusive Securities Information Processors (‘‘SIPs’’) are (1) the Consolidated Tape Association Plan (‘‘CTA Plan’’), (2) the Consolidated Quotation Plan (‘‘CQ Plan’’), and (3) the Joint Self-Regulatory Organization Plan Governing the Collection, Consolidation, and Dissemination of Quotation and Transaction Information for Nasdaq-Listed Securities Traded on Exchanges on an Unlisted Trading Privileges Basis (‘‘UTP Plan’’) (collectively, the ‘‘Equity Data Plans’’). See also 24X Rule 1.5(o). 221 See Form 1, Exhibit E. See also 24X Rule 11.11 (providing, in part, that 24X will report executions to the appropriate consolidated transaction reporting system ‘‘to the extent required by the Exchange Act and the rules and regulations thereunder.’’). See also infra section III.D.2.a.i. (discussing the availability of the Equity Data Plans during the 24X Market Session). 222 See Form 1, Exhibit E (stating, ‘‘including, but not limited to, the NMS Plan to Address Extraordinary Market Volatility (‘‘Limit Up-Limit Down Plan’’), the NMS Plan Governing the Consolidated Audit Trail (the ‘CAT NMS Plan’), the NMS Plan for the Selection and Reservation of Securities Symbols, and the 17d–2 Plans for Allocation of Regulatory Responsibilities’’). 223 See Montone Letter at 9. 224 See 24X Letter II at 15. 225 See Form 1, Exhibit E (requiring a description of the manner of operation of the System and that the description should include proposed fees). E:\FR\FM\06DEN1.SGM 06DEN1 97104 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices data fees, co-location fees, connectivity fees, and bandwidth fees.226 Further, 24X Rule 15.1, which establishes the Exchange’s authority to impose fees, dues, assessments and other charges that 24X may prescribe, lists the following fees that 24X will impose: ‘‘membership dues, transaction fees, communication and technology fees, regulatory charges, listing fees, and other fees and charges as the Exchange may determine.’’ 227 24X also stated that it intends to establish a fee schedule that sets forth all fees, and that the actual fee amounts and types will be determined at a time closer to launch.228 24X’s Form 1 satisfies the requirements of the Form 1 as it describes the fees that 24X may prescribe. However, any fees, dues or other charges that 24X intends to assess must be filed as a proposed rule change pursuant to section 19(b) of the Exchange Act 229 and Rule 19b–4 thereunder.230 Exchange fees are subject to the requirements of the Exchange Act, including sections 6(b)(4) and 6(b)(5).231 2. 24X Market Session As discussed above, 24X will operate the 24X Market Session, a fourth trading session that will extend the hours of exchange trading for NMS stocks beyond the existing extended hours sessions.232 In Amendment No. 2, 24X modified its original proposal for the 24X Market Session to include overnight trading only on certain nights of the week—Sunday through Thursday—that precede a U.S. Business Day.233 As discussed above,234 while several exchanges offer a pre-market trading session that may start as early as 4 a.m. on each U.S. Business Day, and most exchanges offer a post-close trading session that ends at 8 p.m. on each U.S. Business Day, 24X’s model, as amended, will expand exchange trading hours such that trading on 24X will be conducted on a largely continuous basis during the week subject to a daily one hour trading pause.235 24X will operate the 24X Market Session, as amended, in a manner that is consistent with current 226 See Form 1, Exhibit E. 24X Rule 11.15(a). 228 See Form 1, Exhibit E. 229 15 U.S.C. 78s(b). 230 17 CFR 240.19b–4. 231 15 U.S.C. 78f(b)(4), (b)(5). 232 See 24X Rule 11.2(a); see also section III.D.2.d. (discussing securities eligible for trading during the 24X Market Session). See also supra notes 183 and 184 (describing the existing exchanges’ extended hours sessions). 233 See 24X Rule 1.5(c). 234 See supra notes 183 and 184 and accompanying text. 235 See 24X Rule 11.15(c). See also infra section III.D.2.c. lotter on DSK11XQN23PROD with NOTICES1 227 See VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 extended hours sessions.236 Further, as discussed below, 24X will require that 24X Members make disclosures to their customers concerning risks associated with trading during Extended Hours Trading, and has included tailored disclosures that 24X Members must provide to their customers to reflect the potential risks associated with the 24X Market Session, as amended.237 The Commission received several comment letters about the proposed operation of the 24X Market Session, which, as initially proposed, would have operated 8 p.m. until 4 a.m. during every U.S. Business Day as well as most of the day on weekends and holidays, subject to proposed trading pauses. Some commenters supported the originally proposed expansion of trading hours.238 For instance, two commenters stated that the originally proposed 24X Market Session would bring the ‘‘current practice of trading 24/7 onto a lit exchange’’ 239 and that the market should be left to decide whether this is a valuable endeavor.240 One commenter stated that 24-hour trading already occurs and that ‘‘it is better that it be on a national securities exchange with higher regulatory protections afforded by an exchange.’’ 241 One commenter stated that its recent research ‘‘implies that 23/7 trading will likely improve the market’s allocative efficiency relative to the traditional 6.5/ 5 trading schedule.’’ 242 This commenter stated that their research studied welfare, measured by the allocative efficiency of the market, in equilibria of two market designs: one with a daily closure, and another in which closure is eliminated. According to the commenter, the research showed that ‘‘as long as there is a closure for some time, most of the benefits of a market closure are accrued.’’ 243 Thus, the 236 For example, 24X will not accept Market Orders or Pegged Orders in the 24X Market Session and 24X will utilize the same clearly erroneous execution rules that apply on other venues that have extended hours sessions. 237 See 24X Rule 3.21. See also infra section III.D.2.e. 238 See, e.g., Polygon Letter; DriveWealth Letter; Angel Letter I; Angel Letter II; Montone Letter. 239 See Polygon Letter at 5. See also DriveWealth Letter at 1. 240 See Polygon Letter at 5. See also Angel Letter I. 241 See Angel Letter I at 2. 242 See Blonien and Ober Letter at 1. 243 According to the commenter, in the model, a market closure not only concentrates liquidity throughout the day but also helps coordinate liquidity, especially towards the end of the trading. Moreover, the commenters state that the cost of a closure, that a traders’ positions may deviate far from their desired positions, is, according to the commenter, outweighed by its benefits. See Blonien and Ober Letter at 1. PO 00000 Frm 00169 Fmt 4703 Sfmt 4703 commenter stated that it is likely that 24X’s proposed 23/7 exchange will maintain the welfare benefits of a market closure, reduce the costs of a prolonged closure, and enhance allocative efficiency.244 Several commenters raised concerns about the original proposed expansion of trading hours. For instance, two commenters stated that the proposal would harm retail investors due to low volumes and wide spreads during the extended trading hours and a lack of liquidity would result in a wealth transfer from investors to professionals.245 Another commenter stated that although 24X suggests that retail investors would welcome 24-hour exchange trading, the demand for investors for overnight and weekend trading seems speculative because no information has been provided about the number of such investors or the relevance of the potential benefit.246 Another commenter stated that investor demand should be considered to assess whether the expansion of trading hours would justify the market-wide costs.247 One commenter suggested a ‘‘cautious approach to expanding hours’’ because its research indicated ‘‘negative consequences for retail investment.’’ 248 Another commenter, however, stated that the research cited did not examine overnight trading or expansion of trading hours but instead examined time zone differences.249 This commenter stated 24-hour trading ‘‘is already here on automated trading systems, so rejecting the 24X application would not restrict retail access to overnight trading at all.’’ 250 With respect to the commenter’s concern about retail investor participation in the 24X Market Session,251 24X stated that, as discussed below, the Commission has historically allowed retail participation in expanded trading hours with appropriate disclosures.252 In Amendment No. 1, 24X amended its 24X Rule 3.21 to 244 See Blonien and Ober Letter at 1. The commenter stated that these findings are based on a model of large and homogeneous traders, and that heterogeneous groups of traders, such as retail investors, market makers, and informed traders, may have asymmetric responses to market closures of differing lengths. See id. 245 See Better Markets Letter at 2; SIFMA Letter II at 2. 246 See IEX Letter at 2. 247 See SIFMA Letter II at 2. See infra notes 290– 292 and accompanying text (discussing costs relating to the expansion of trading hours). 248 See Glover and deHaan Letter at 1. 249 See Angel Letter II at 3. 250 See Angel Letter II at 2. 251 See supra note 245 and accompanying text. 252 See 24X Letter II at 11. See also infra section III.D.2.e. (discussing customer disclosures relating to risks of the 24X Market Session). E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices lotter on DSK11XQN23PROD with NOTICES1 provide additional disclosures designed to address the potential risks of the 24X Market Session.253 24X stated, in response to commenters questioning whether additional trading hours would benefit investors, that ‘‘there is substantial interest in expanded trading hours’’ and that the markets should be able to determine whether the 24X proposal will be successful.254 24X also stated that its amended rules for the 24X Market Session are a more incremental approach that will address the cost concerns raised by some commenters because it eliminates the potential costs related to weekend and holiday trading.255 24X further stated that it did not believe that ‘‘costs related to innovation should be the basis for the Commission to determine that an exchange application does not comply with the Exchange Act.’’ 256 24X also stated that the markets will determine whether ‘‘its innovative proposal’’ is successful.257 As discussed further below, the Commission finds that the 24X rules for the 24X Market Session, as amended, are consistent with the Exchange Act. Specifically, the 24X Market Session rules are modeled on the rules of national securities exchanges that currently operate trading sessions during extended hours and are designed to address the potential differences in trading compared to Regular Trading Hours.258 For example, during the 24X Market Session, the only order type that may be submitted is a Limit Order, which requires market participants to set the prices at which they are willing to trade. Accepting only Limit Orders during extended hours sessions can help to address the potential risks that there may be wider spreads,259 or that prices may be affected by new announcements made by issuers.260 Other exchanges allow the submission 253 As discussed above, in Amendment No. 2, 24X scaled back the hours of operation of the 24X Market Session to 8 p.m. to 4 a.m. Sunday, Monday, Tuesday, Wednesday, and Thursday nights, so long as the next trading day is a U.S. Business Day. See supra note 233 and accompanying text. As part of Amendment No. 2, 24X also revised the disclosures that must be provided by 24X Members to their customers to reflect the revised operating hours of the 24X Market Session. See infra section III.D.2.e. 254 See 24X Letter III at 5. See also 24X Letter IV at 6 (stating that ‘‘the number of market participants interested in overnight trading continues to grow.’’). 255 See 24X Letter III at 2. 256 See 24X Letter III at 2. 257 See 24X Letter IV at 6. 258 See supra notes 183–184 and accompanying text. 259 See 24X Rule 3.21(f). 260 See 24X Rule 3.21(e). VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 of only limit orders during extended hours sessions.261 In addition, 24X Members are required to provide disclosures to customers that will provide information about potential risks of trading in extended hours, including the 24X Market Session. These disclosures are consistent with the rules of other SROs, which require customers to be provided with disclosures regarding the potential risks of extended hours trading.262 While two commenters stated that investors would be harmed by low liquidity, low volumes and wider spreads, these potential risks are included in the disclosures that must be provided to customers by 24X Members.263 Investors are provided information about these potential risks and are able to decide whether to participate in extended hours sessions, including the 24X Market Session. Further, the 24X Market Session will overlap with the extended hours trading that currently occurs in the over-thecounter (‘‘OTC’’) market.264 Accordingly, while the 24X Market Session represents a new trading session for exchange trading, market participants, including retail investors, are already able to trade during the times covered by the 24X Market Session. While commenters stated that investor demand should be considered to assess whether the expansion of trading hours would justify market-wide costs, the Commission is required to consider a Form 1 application for consistency with statutory standards.265 For the reasons discussed herein, the Commission has determined that the 24X Form 1 is consistent with the Exchange Act and the rules thereunder. Finally, pursuant to this Form 1, as amended, 24X will not commence 261 See e.g., NYSEArca Rule 7.34–E(d) (stating that only limit orders are eligible to participate in the Early Trading Session and Late Trading Session). 262 See e.g., NYSEArca Rule 7.34–E(d)(3); Nasdaq Rule Equity 2, Section 20; MEMX Exchange Rule 3.21; FINRA Rule 2265. 263 See 24X Rule 3.21(a) (describing the risk of lower liquidity); 24X Rule 3.21(f) (describing the risk of wider spreads). 264 See e.g., Blue Ocean ATS, LLC (‘‘BOATS’’). The operating hours for BOATS occur from 8 p.m. to 4 a.m. on days with the NYSE Trade Reporting Facility is open for trade reporting. See Form ATS– N, available at sec.gov/Archives/edgar/data/ 1795131/000153949723000091/xslATS-N_X01/ primary_doc.xml. 265 In a letter to the Commission, 24X stated that investor demand for overnight trading is growing and provided details of other market participants that have recently expressed interest in expanding the hours of trading on an exchange. See 24X Letter IV at 6 (citing a proposal by NYSE Arca to expand its trading hours and a notice by Schwab announcing an expansion to 24-hour trading for certain stocks). PO 00000 Frm 00170 Fmt 4703 Sfmt 4703 97105 operation of the 24X Market Session prior to filing a proposed rule change. Specifically, 24X Rule 1.5(c) requires 24X, prior to commencing operations during the 24X Market Session, to file a proposed rule change, pursuant to section 19(b) of the Exchange Act and the rules thereunder, to amend its rules confirming that 24X is able to comply with its obligations under the Exchange Act during the 24X Market Session and that the Equity Data Plans are prepared to collect, consolidate, process and disseminate quotation and transaction information at all times during the 24X Market Session (‘‘24X Market Session Proposed Rule Change’’). As discussed below, the 24X Market Session Proposed Rule Change must be filed with the Commission and approved, or otherwise become effective pursuant to Exchange Act section 19(b), before 24X can provide trading during the 24X Market Session.266 In the 24X Market Session Proposed Rule Change, 24X must confirm that it is able to comply with its obligations under the Exchange Act during the 24X Market Session and that the Equity Data Plans are prepared to collect, consolidate, process and disseminate quotation and transaction information at all times during the 24X Market Session that is equivalent to the mechanism established for Exchange Trading Hours other than the 24X Market Session.267 The 24X rule requiring the operation of the Equity Data Plans during the 24X Market Session is designed to ensure that consolidated quotation and transaction data are provided in a manner that is consistent with the existing extended hours sessions on exchanges.268 Accordingly, 24X rules are designed to prevent fraudulent and manipulative acts and practices, promote just and equitable principles of trade, foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to and facilitating transactions in NMS stocks, and perfect the mechanism of a free and open market and a national market system.269 24X rules are also designed to protect 266 See 24X Rule 1.5(c) and 24X Rule 11.16. 24X may begin operations of its other trading sessions once the conditions discussed below have been satisfied. 267 See 24X Rule 1.5(c). 268 As discussed above, the 24X will not start operating the 24X Market Session unless the Equity Data Plans have established a mechanism to collect, consolidate, process and disseminate quotation and transaction information at all times during the 24X Market Session that is equivalent to the mechanism established for Exchange Trading Hours other than the 24X Market Session, among other things. See 24X Rule 1.5(c). 269 15 U.S.C 78f(b)(5). E:\FR\FM\06DEN1.SGM 06DEN1 97106 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices investors and the public interest.270 The 24X rules governing the 24X Market Session will expand the hours of trading available on a national securities exchange, and such trading will be transparent because trading will not occur unless the Equity Data Plans are able to collect, consolidate, process and disseminate consolidated quotation and transaction data during the 24X Market Session (i.e., between 8 p.m. and 4 a.m. Sunday, Monday, Tuesday, Wednesday, and Thursday nights that precede a U.S. Business Day).271 The 24X rules for the 24X Market Session will foster competition by introducing another trading venue during these trading hours.272 Finally, the 24X rules for the 24X Market Session are designed to provide additional investor protections.273 a. Effect of 24X Market Session on Market Structure Several commenters raised questions about the potential impact of the 24X Market Session, as originally proposed, on current market structure because it would greatly expand exchange trading hours. Several commenters stated that the Commission should consider roundtable discussions about the market structure implications of 24-hour trading.274 One commenter stated that the 24X proposal ‘‘has serious implications for the regulatory, technological, and operational underpinnings of the equity securities markets and will result in significant costs for the industry.’’ 275 Another commenter stated that the 24X Market Session, as originally proposed, is ‘‘incompatible’’ with current market structure and that a broader Commission engagement, outside of an exchange application, is needed to determine how U.S. equity market structure would be affected.276 This 270 Id. 271 See infra section III.D.2.a.i. e.g., supra note 264. 273 See e.g., supra section III.C; and infra section III.D.e; section III.E.2; section III.F. 274 See DriveWealth Letter at 2, SIFMA Letter at 2, SIFMA Letter II at 3–4; FIA PTG Letter at 2; FIA PTG Letter II at 3. 275 See FIA PTG Letter at 1, 2; FIA PTG Letter II at 1. 276 See SIFMA Letter at 4–5 (stating that the Commission must consider a number of factors, including the public interests involved, the effect on exchange competition dynamics, interaction with existing and proposed regulations, and whether a fair and orderly market is possible where potentially different rules would apply to exchanges based on the hours they operate). This commenter also stated that the Commission must consider how the 24X Form 1 would interact with ‘‘outstanding equity market structure proposals.’’ See SIFMA Letter at 6–7. The commenter asked interpretative questions about the proposal to amend Regulation NMS. See Securities Exchange lotter on DSK11XQN23PROD with NOTICES1 272 See VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 commenter further stated that the 24X Market Session as originally proposed ‘‘could exacerbate a two-tiered system of regulation between core and extended trading hours’’ because certain Exchange Act rules apply only during Regular Trading Hours 277 and could make compliance with best execution obligations more challenging.278 Another commenter stated that the 24X Market Session, as originally proposed ‘‘[r]aises significant, insufficiently addressed market policy concerns,’’ 279 while another stated that the proposal represents the ‘‘first occurrence of a national securities exchange that utilizes unlisted trading privileges to operate outside the trading hours of the primary listing exchanges.’’ 280 24X stated that ‘‘in today’s market, the regulatory requirements vary depending on the trading session’’ with greater protections required during Regular Trading Hours.281 24X stated that the Commission has allowed extended trading hours on other exchanges and the same rationale should be applied in this instance because the 24X rules for the 24X Market Session raise ‘‘no new issues.’’ 282 In response to the comment Act Release No. 96494 (Dec. 14, 2022), 87 FR 80266 (Dec. 29, 2022). After submission of the comment letter, the Commission adopted amendments to Regulation NMS on Sept. 18, 2024. See Securities Exchange Act Release No. 101070 (Sept. 18, 2024), 89 FR 81620 (Oct. 8, 2024) (‘‘2024 Regulation NMS Adopting Release’’). The commenter also asked questions about proposed Regulation Best Execution, Securities Exchange Act Release No. 96496 (Dec. 14, 2022), 88 FR 5540 (Jan. 27, 2023); and the proposed Order Competition Rule, Securities Exchange Act Release No. 96495 (Dec. 14, 2022), 88 FR 128 (Jan. 3, 2023). 24X stated that ‘‘addressing how such proposals may relate to 24X’s exchange application are outside of the scope of consideration of whether 24X’s exchange application complies with the requirements of the Exchange Act.’’ See 24X Letter II at 19. Proposed Regulation Best Execution and the proposed Order Competition Rule remain proposals. The commenter submitted a second letter requesting confirmation about the application of aspects of the 2024 Regulation NMS Adopting Release during the 24X Market Session. See SIFMA Letter II at 13. The questions posed by the commenter are addressed within the 2024 Regulation NMS Adopting Release and existing rules and regulations. The 2024 Regulation NMS Adopting Release, as well as the definitions included in Rule 600 of Regulation NMS and the specific rules under Regulation NMS, define the application of the rules during different trading sessions. 277 For example, the commenter stated that certain aspects of Regulation NMS only apply during Regular Trading Hours, such as Rule 611 of Regulation NMS, and that certain definitions in Rule 600 of Regulation NMS specify Regular Trading Hours, such as ‘‘covered order.’’ See SIFMA Letter I at 4. 278 Id. 279 See Healthy Markets Letter at 7. 280 See Nasdaq Letter at 3. 281 See 24X Letter II at 14. 24X further states that it will comply with all required rules and regulations applicable to national securities exchanges during its Core Market Session. Id. 282 See 24X Letter II at 14. PO 00000 Frm 00171 Fmt 4703 Sfmt 4703 about trading NMS stocks pursuant to UTP outside of the hours of the primary listing exchanges, 24X stated that it would ‘‘coordinate with the primary listing markets with regard to their regulatory roles related to their listed companies (e.g., trading halts).’’ 283 Further, 24X stated that 24X Rule 11.15(c)(5) requires 24X to halt trading if the primary listing exchange determines to halt trading.284 In response to comments about industry roundtables, 24X stated that ‘‘its exchange application has been subject to public comment by the industry and others . . . in accordance with the requirements of the Exchange Act.’’ 285 24X further stated that amending the rules governing the 24X Market Session to eliminate trading on weekends and holidays in response to comments is a ‘‘significant adaption.’’ 286 The 24X rules for the 24X Market Session have been amended to increase transparency and enhance customer risk disclosures such that it will operate in a manner that is consistent with the regulatory framework of the extended hours sessions of other national securities exchanges.287 As discussed throughout this order, the 24X Market Session, as amended, will operate with rules that are designed to protect investors consistent with the requirements of the federal securities laws and the rules and regulations thereunder. Several commenters suggested that a broader study of expanded hours trading should be conducted prior to Commission action on the 24X exchange application.288 The continuing evolution of the equities market, including increasing investor interest in extended hours trading, may warrant consideration of the existing regulatory scheme that applies to expanded hours trading sessions. The Commission continually monitors the national market system and the operation of the Federal securities laws, and the Commission, consistent with its oversight of the national market system, will continue to monitor the developments of extended hours trading. However, the monitoring of new market developments does not foreclose Commission action on the 24X Form 1, which, for reasons discussed throughout, satisfies the requirements of the Exchange Act. 283 Id. at 8. at 4. 285 See 24X Letter III at 5. 286 Id. 287 See also infra section III.D.2.b.i. 288 See supra note 274 and accompanying text. 284 Id. E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices Further, the 24X Form 1 has been subject to the relevant notice and comment requirements. Public comment on the application has been solicited four separate times—with the publication of the Notice, the OIP, Amendment No. 1, and Amendment No. 2. The public, including market participants, have been afforded adequate opportunity for comment, and interested persons have taken the opportunity to provide written data, views, and arguments concerning this application which has yielded a robust analysis of the relevant issues.289 24X has responded, by amending its Form 1, in part, to address the various concerns raised by certain commenters. Notably, 24X has narrowed its hours of operation, added rules to increase operational transparency and relevant customer risk disclosures, and amended certain proposed rules to conform with the existing regulatory framework for extended hours trading of other national securities exchanges. In addition, as has been discussed throughout this order, the expansion of trading hours initially proposed by 24X is not entirely novel as off-exchange trading currently occurs during those hours. Accordingly, issues related to the 24X Market Session have been raised, analyzed, and addressed, and Commission action on the 24X Form 1 should not be delayed by, and is not dependent on, a broader study of equity market structure. While there will be costs to the industry related to implementing the expansion of exchange trading hours, the record does not support a denial of the 24X Form 1 application as inconsistent with the Exchange Act. The operation of the 24X Market Session will not commence until the conditions outlined in this order have been met.290 i. Equity Data Plans The Equity Data Plans do not operate during the time period that will cover the 24X Market Session, as amended. Several commenters raised concerns about the lack of consolidated data during the 24X Market Session, as originally proposed.291 One commenter stated that the 24X trading sessions should align with the operational hours lotter on DSK11XQN23PROD with NOTICES1 289 15 U.S.C 78s(a). 290 See infra section V. 291 See Polygon Letter; Nasdaq Letter, Montone Letter, IEX Letter, SIFMA Letter. Several commenters also stated that there should be a consideration of off-exchange trade reporting to the Equity Data Plans. See Nasdaq Letter at 3, SIFMA Letter at 3, DriveWealth Letter at 2, FIA PTG Letter at 2. The Commission agrees and believes that the Equity Data Plans and FINRA should consider accommodating real-time OTC trade reporting. VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 of the Equity Data Plans.292 Another commenter stated that if 24X was approved without extending the exclusive SIP hours, quotes and trades would not be publicly disseminated in real time and that the delay would be inconsistent with the national market system and significantly reduce market transparency.293 One commenter stated, in response to the 24X Market Session as originally proposed, that moving to 24-hour on-exchange trading requires deliberate consideration of the marketwide implications of such a move, including the cost and complexity of overhauling the market-wide infrastructure to allow for the publication of quote and trade data by the exclusive SIPs during the proposed overnight and weekend sessions, as measured against its potential benefits.294 The commenter stated that changing exclusive SIP operations to accommodate the original proposal would amount to a huge undertaking, and that the costs and timeline associated with these changes have not been determined.295 Moreover, the commenter stated that 24X has neither acknowledged responsibility for funding these changes, nor provided information on its ability to do so.296 The commenter further stated that the exclusive SIPs would likely incur substantial increased ongoing costs to maintain the originally proposed extended hours, and that neither these costs, which the commenter stated would likely be borne by all exclusive SIP subscribers regardless of whether they participate in overnight or weekend trading, nor their potential benefits, have been determined.297 In Amendment No. 2, in response to commenters’ concerns about the operation of the 24X Market Session during time periods when the Equity Data Plans are not in operation,298 24X modified its Rule 1.5(c) and Rule 11.16 292 See Nasdaq Letter at 3. See also Montone Letter at 8. 293 See SIFMA Letter at 3. See also FIA PTG Letter at 2. 294 See IEX Letter at 1–2. See also DriveWealth Letter at 2. 295 See IEX Letter at 2. See also FIA PTG Letter at 2; FIA PTG Letter II at 3. 296 See IEX Letter at 2. 297 See IEX Letter at 2; FIA PTG Letter II at 3. 298 See SIFMA Letter at 3; FIA PTG Letter at 2; Nasdaq Letter at 3; Healthy Markets Letter at 10– 11; but see Polygon Letter at 2–5 (stating that Commission should approve 24X and force the adoption of the competing consolidator model to allow for the dissemination of market data in real time). 24X stated that it has ‘‘fully addressed’’ commenter concerns about trading in the 24X Market Session occurring outside of the operating hours of the Equity Data Plans by the changes proposed in Amendment No. 2. See 24X Letter IV at 4–5. PO 00000 Frm 00172 Fmt 4703 Sfmt 4703 97107 to require the concurrent operation of the Equity Data Plans before the operation of the 24X Market Session commences, and that 24X file the 24X Market Session Proposed Rule Change that would serve to provide notice to the Commission and the public of 24X’s intention to commence operation of the 24X Market Session. Specifically, 24X Rule 1.5(c) states that 24X will not start operating the 24X Market Session unless the Equity Data Plans ‘‘(1) have established a mechanism to collect, consolidate, process and disseminate quotation and transaction information at all times during the 24X Market Session that is equivalent to the mechanism established for Exchange Trading Hours other than the 24X Market Session,’’ and (2) the Equity Data Plans have notified 24X of their readiness.299 24X Rule 1.5(c) requires 24X, prior to commencing the 24X Market Session, to file the 24X Market Session Proposed Rule Change, pursuant to section 19(b) of the Exchange Act and the rules thereunder. The 24X Market Session Proposed Rule Change must be filed with the SEC within 18 months of the SEC’s approval of 24X’s application for registration as a national securities exchange. If the 24X Market Session Proposed Rule Change is not filed within 18 months of the SEC’s approval of 24X’s application for registration as a national securities exchange, the Exchange will promptly file a proposed rule change to remove the rules that apply to the 24X Market Session. In addition, 24X Rule 11.16 states that, ‘‘24X will not commence operations of the 24X Market Session until a proposed rule change as required under 24X Rule 1.5(c) has been approved, or has otherwise become effective, under section 19(b) of the Exchange Act and the rules thereunder.’’ 300 24X responded to commenters’ concerns about costs by stating that it recognized that innovations, such as the introduction of the 24X Market Session, ‘‘may involve additional costs’’ but that increased costs should not ‘‘be the basis for the Commission to determine that an exchange application does not comply with the Exchange Act.’’ 301 24X stated that market participants ‘‘are already trading overnight on ATSs or 299 See 24X Rule 1.5(c). approval of 24X’s application to register as a national securities exchange is separate and distinct from Commission consideration of any future amendments to the Equity Data Plans or proposed rule changes filed by 24X. As a matter of course, the Commission will consider any future amendments to the Equity Data Plans and any proposed rule changes filed by 24X upon filing, pursuant to the applicable statutory provisions and rules. 301 See 24X Letter II at 16. 300 The E:\FR\FM\06DEN1.SGM 06DEN1 lotter on DSK11XQN23PROD with NOTICES1 97108 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices otherwise’’ and that new costs for exchange trading would be ‘‘incremental.’’ 302 24X also stated that broker-dealers can decide whether to participate in the 24X Market Session.303 Finally, 24X stated with regard to the expansion of the exclusive SIPs’ hours that the Equity Data Plans have a process for determining the cost for new participants and for changes.304 The Commission agrees with commenters regarding consolidated quotation and transaction information during the 24X Market Session. Pursuant to its amended Form 1, 24X will not operate during the 24X Market Session until the Equity Data Plans are able to collect, consolidate, process and disseminate quotation and transaction information at all times during the session. The 24X rules for the 24X Market Session, as amended, are consistent with sections 6(b)(5) and 11A of the Exchange Act.305 24X Rules 1.5(c) and 11.16 provide that 24X will submit a proposed rule change within 18 months of the Commission’s approval of 24X’s application to operate as a national securities exchange with regard to the operation of the 24X Market Session. These provisions relating to the force and effect of the 24X Market Session rules set forth in 24X Rule 11.16 help to balance the interest in providing the time needed for 24X to be able to comply with 24X Rule 1.5(c) with the interest in ensuring that the rules of an Exchange are effective and can be enforced by the Exchange. The requirement contained in its rules that the 24X Market Session will not begin operation until the 24X Market Session Proposed Rule Change is approved or otherwise has become effective will enhance transparency during the 24X Market Session and promote the goals of the national market system. Specifically, the Commission finds that the 24X rules for the 24X Market Session, as amended, are consistent with section 11A(a)(1)(C) of the Exchange Act, in which Congress found that it is in the public interest and appropriate for the protection of investors and the maintenance of fair and orderly markets to assure the availability to brokers, dealers, and investors of information with respect to quotations for and transactions in securities, and to assure the practicability of brokers executing 302 Id. 303 Id. 304 See 24X Letter IV at 7. See supra notes 290– 292 and accompanying text (discussing costs relating to the expansion of trading hours). 305 15 U.S.C. 78f(b)(5) and 15 U.S.C. 78k–1. VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 investors’ orders in the best market.306 The requirement ensuring that 24X will not commence operation of its 24X Market Session until the availability of the concurrent operation of the Equity Data Plans accomplishes Exchange Act objectives by ensuring that there is transparency during these new, extended trading hours through the communication of quotations and transactions to market participants and investors. Finally, one commenter stated that the Market Data Infrastructure (‘‘MDI’’) Rules 307 should be implemented because competing consolidators would not be ‘‘time-bound’’ and would collect, consolidate and disseminate data ‘‘in real-time 24/7.’’ 308 The MDI Rules continue to be implemented, however, the MDI Rules will not be implemented before action is required on the 24X Form 1.309 b. Volatility Moderators in the 24X Market Session 24X initially proposed to implement unique ‘‘24X Price Bands’’ to moderate risk and volatility during the 24X Market Session.310 Several commenters questioned the use of the proposed volatility moderators.311 In particular, one commenter asked why the proposed 24X Price Bands differed from the existing Limit up-Limit down bands and stated that the proposed 24X Price Bands were ‘‘different from price bands used by ATSs that operate outside of core trading hours,’’ 312 while another commenter stated there was no basis to justify the 24X Price Bands.313 Another commenter, however, stated that the proposed 24X Price Bands ‘‘should be sufficient to prevent erroneous trades.’’ 314 306 15 U.S.C. 78k–1(a)(1)(C). Exchange Act Release No. 90610 (Dec. 11, 2020), 86 FR 18596 (Apr. 9, 2021) (‘‘MDI Rules Adopting Release’’). 308 See Polygon Letter at 4. 309 See 2024 Regulation NMS Adopting Release, supra note 276. 310 See, e.g., Proposed 24X Rule 11.15(a); Form 1, Exhibit E–1. As initially proposed, a 24X Price Band would be calculated for each relevant security by multiplying the ‘‘Reference Price,’’ as specified in 24X Rule 11.15(a)(2), by the applicable ‘‘Percentage Parameter,’’ set out in 24X Rule 11.15(a)(1). Under Rule 11.15(a)(1) as initially proposed, this figure (rounded to the nearest $0.01) would then be added to the Reference Price to calculate the ‘‘Upper 24X Price Band’’ and subtracted from the Reference Price to calculate the ‘‘Lower 24X Price Band’’ and no trades would be allowed outside the 24X Price Bands. Proposed 24X Rule 11.15(a)(1). 311 See Healthy Markets Letter at 8; SIFMA Letter at 6; FIA PTG Letter at 2. 312 See SIFMA Letter at 6. 313 See Healthy Markets Letter at 8. 314 See Angel Letter I at 3. See also Montone Letter at 7. 307 Securities PO 00000 Frm 00173 Fmt 4703 Sfmt 4703 24X proposed in Amendment No. 1 to remove proposed 24X Rule 11.15(a) from its rules, which removed all references to the proposed 24X Price Bands.315 In its letter responding to comments on the OIP, 24X stated that it ‘‘would rely upon its clearly erroneous rule, [p]roposed 24X Rule 11.14, to address volatility and risk during the 24X Market Session.’’ 316 24X stated that it would also ‘‘provide other additional protections to investors to address potential volatility and risk during the 24X Market Session. For example, under Proposed 24X Rule 11.7(a)(4), 24X would not allow the use of market orders during the 24X Market Session.’’ 317 As a result, 24X stated that its rules designed ‘‘to address potential volatility in both regular and extended hours trading’’ are the same as those previously approved by the Commission for other exchanges.318 One commenter stated that given the significance of displayed quotations and transaction prices to stock valuations, many trading firms and other participants will need to monitor the prices published during overnight and weekend hours, regardless of whether they trade during those hours and that ‘‘SIP subscribers’’ would experience ‘‘costs.’’ 319 This commenter also stated that ‘‘[t]his is particularly the case’’ because 24X does not include volatility limits other than those that exist under its clearly erroneous execution rule.320 Another commenter opposed 24X’s plan to rely on its clearly erroneous execution rules instead of price bands, as initially proposed.321 This commenter stated that the Commission should consider ‘‘whether the regulatory framework and market functionality are in place to support 24x7 trading (including, for example, whether extending the LULD plan to cover noncore hours is appropriate).’’ 322 315 See 24X Letter II at 5–6; Amendment No. 1; 24X Rule 11.15(a) (now Reserved). 316 See 24X Letter II at 6. In Amendment No. 1, 24X further proposed to make a conforming change to its clearly erroneous rule, 24X Rule 11.14, by deleting subparagraph (d)(4) regarding calculation of the reference price when the 24X Price Bands would have been in effect during the 24X Market Session. 317 See 24X Letter II at 6. 318 See 24X Letter II at 6. 319 See IEX Letter at 2. 320 See IEX Letter at 2. 321 See FIA PTG Letter II at 3 (stating, ‘‘[p]rice bands serve as an important investor protection, particularly during periods of extreme volatility, whereas busting trades under an Exchange’s clearly erroneous rules can give rise to increased risks and uncertainty.’’). 322 Id. See also supra note 288 and accompanying text. The LULD Plan applies during Regular Trading Hours. See LULD Plan, available at https:// www.luldplan.com/. E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices 24X’s proposed use of its clearly erroneous execution rule during the 24X Market Session addresses commenters’ concerns about its initially proposed 24X Price Bands. The use of clearly erroneous execution rules in the 24X Market Session, instead of the unique, market-specific 24X Price Bands, will help to ensure there is a consistent, market-wide regulatory approach across the extended hours trading sessions of all national securities exchanges.323 Accordingly, 24X Rule 11.14 is designed to facilitate transactions in securities and remove impediments to and perfect the mechanism of a free and open market and a national market system, consistent with section 6(b)(5) of the Exchange Act. While one commenter suggested that ‘‘SIP subscribers’’ may experience increased costs due to the need to monitor prices during the 24X Market Session, the commenter did not provide information as to how this differs from other extended hour trading sessions and the commenter was commenting on the 24X Market Session as originally proposed. As amended by Amendment No. 2, the 24X Market Session would cover hours that are currently available for OTC trading and 24X may not begin operating its 24X Market Session at least until the Equity Data Plans are able to collect, process, consolidate and disseminate quotation and transaction data during the 24X Market Session,324 which will help to facilitate monitoring of price valuations. Further, as stated above, the use of clearly erroneous execution rules in extended hours sessions is consistent with the regulatory framework applied to other national securities exchanges.325 lotter on DSK11XQN23PROD with NOTICES1 c. Trading Halts and Pauses 24X proposed rules governing trading halts and pauses for technology updates and regulatory purposes. As originally proposed, 24X Rules 11.15(c)(1), (c)(2), (c)(3), (c)(4) and (c)(5) would have paused trading for: (i) three hours each Saturday morning, from 8 a.m. until 11 a.m.; (ii) an hour at 7 p.m. daily; (iii) industry-wide testing; (iv) technological or other purposes; and (v) material corporate actions with respect to a particular security during the 24X Market Session, respectively. In Amendment No. 2, 24X deleted 24X Rules 11.15(c)(1) and 11.15(c)(3) and 323 See e.g., CboeBZX Rule 11.17; Nasdaq Equity 11, Rule 11890; NYSE Arca Rule 7.10–E. 324 See 24X Rule 1.5(c). Under the rule, 24X will not begin operation of the 24X Market Session until the 24X Market Session Proposed Rule Change has been approved or otherwise become effective. See also supra section III.D.b.i. 325 See supra note 323. VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 amended 24X Rule 11.15(c)(2), all to reflect the amended hours for the 24X Market Session. Pursuant to 24X Rule 11.15(c), 24X will pause trading on Monday, Tuesday, Wednesday and Thursday at 7 p.m.,326 during the 24X Market Session at such other times that the Exchange determines is necessary for technological or other purposes,327 and if the primary listing exchange determines to halt trading or delay the start of trading in one of its listed securities.328 With respect to regulatory halts, several commenters questioned how market surveillance and trading halts, including regulatory trading halts, would be handled in the 24X Market Session.329 Specifically, one commenter stated that 24X’s proposal raised a series of surveillance questions, including (i) how 24X will manage real-time surveillance during the 24X Market Session, (ii) how the existing surveillance, trading halt, and trade review infrastructure—one in which primary listing markets perform realtime surveillance of securities listed on their markets and implement trading halts and pauses for those securities during their hours of operation—will intersect with the proposed 24X Market Session, including how 24X would coordinate with other exchanges, and (iii) the impact that such trading will have on investors, listed companies, and other market participants.330 Similarly, other commenters expressed concerns about regulatory halts, including possible unanticipated or unintended effects on primary listing markets and issuers.331 One of these commenters stated that the expanded trading hours would interfere with exclusive SIPs’ ‘‘periodic testing and maintenance, which currently occur at times when the exchanges are closed.’’ 332 Another commenter generally supported the proposed trading halts but recommended that 24X ‘‘revisit trading halts around key disclosures from companies’’ if ‘‘they find they can 97109 adequately secure the markets around the key disclosure periods.’’ 333 In response to commenters’ concerns about regulatory halts,334 24X stated that it intends to surveil all of its trading sessions, including the 24X Market Session, in the same manner.335 24X stated that it will coordinate with the primary listing markets to halt trading in a security when the primary listing market halts trading in the security.336 In addition, in Amendment No. 1, 24X proposed to revise its trading halt rules related to the primary listing market to clarify that Rule 11.15(c)(5) will apply during all of its trading sessions.337 Specifically, 24X proposed to add language to 24X Rule 11.15(c)(5) that if trading in a security is halted by the primary listing market before the 24X Market Session and continuing into the 24X Market Session, or during the 24X Market Session, the Exchange will halt trading in the security until trading resumes on the primary listing market for the security.338 24X’s rules, as amended, governing trading halts related to corporate news and announcements will track the trading halts imposed by the primary listing markets. To the extent that material corporate news is released during the 24X Market Session and the primary listing market does not impose trading halts, the requirements of 24X Rule 3.21(e) 339 and 24X Rule 3.21(i) 340 that disclosures be provided to investors relating to the risks associated with news announcements and the additional risks of trading in the 24X Market Session, respectively, will help to ensure that market participants, including investors, are informed about the potential risks associated with trading during that time period. 24X’s rules governing trading pauses, coupled with its Rule 3.21,341 are consistent with the Exchange Act and, in particular, the section 6(b)(5) requirement that an exchange’s rules be designed to promote 333 See 334 See Montone Letter at 6–7. supra notes 329–330 and accompanying text. 326 See 24X Rule 11.15(c)(2). 327 See 24X Rule 11.15(c)(4). 328 See 24X Rule 11.15(c)(5). 329 See Nasdaq Letter at 3, 4; Montone Letter at 6–7; SIFMA Letter at 8–9; Healthy Markets Letter at 7. 330 See Nasdaq Letter at 3. This commenter further stated in response to the initial Form 1, ‘‘pauses in the trading day allow for the SIPs to make certain technical changes with little to no disruption to the markets. We believe the Commission should consider whether 24X’s proposed trading pauses are sufficient to address the technical implications of 23-hour trading sessions.’’ Id. See also Healthy Markets Letter at 7. 331 See SIFMA Letter at 8–9; Healthy Markets Letter at 7. 332 See SIFMA Letter at 8. PO 00000 Frm 00174 Fmt 4703 Sfmt 4703 335 See 24X Letter II at 8. 24X Letter II at 8. 337 See 24X Rule 11.15(c)(5) 338 See 24X Rule 11.15(c). 339 See 24X Rule 3.21(e) (stating, ‘‘[n]ormally, issuers make news announcements that may affect the price of their securities after Regular Trading Hours. Similarly, important financial information is frequently announced outside of Regular Trading Hours. In Extended Hours Trading, these announcements may occur during trading, and if combined with lower liquidity and higher volatility, may cause an exaggerated and unsustainable effect on the price of a security.’’). 340 See 24X Rule 3.21(i)(1) through (6). 341 See infra section III.D.2.e. (discussing customer disclosures relating to risks of the 24X Market Session). 336 See E:\FR\FM\06DEN1.SGM 06DEN1 97110 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices just and equitable principles of trade, remove impediments to and perfect the mechanisms of a free and open market and a national market system, and protect investors and the public interest. Regarding technology halts, one commenter on the 24X Market Session, as originally proposed, stated that testing for the exclusive SIP of the UTP Plan currently occurs at times which would overlap ‘‘with a portion of the 24X Market Session, and 24X has not explained how it will operate during the overlapping time.’’ 342 In Amendment No. 2, 24X has amended the 24X rules for the 24X Market Session to exclude trading on weekends. This amendment addresses concerns about conflicts with industry-wide testing, ‘‘which currently occur[s] at times when the exchanges are closed.’’ The trading pauses provided in 24X Rule 11.15(c), as amended 343 should be sufficient to permit 24X to address the technical implications of a 23-hour trading day and will facilitate industry-wide testing, and internal market testing and systems updates and improvements. d. Securities Eligible for Trading During the 24X Market Session In its initial Form 1, 24X proposed to limit the securities that would be available for trading during the 24X Market Session. Specifically, proposed 24X Rule 11.2 specified that any class of securities listed or admitted to unlisted trading privileges on the Exchange would be eligible to be traded during the Pre-Market Session, Core Market Session and Post-Market Session, while in the 24X Market Session, trading would be limited to any security in the Nasdaq–100 Index, S&P 500 Index, Russell 2000 Index and the top 50 exchange-traded funds by average daily volume during a given month, as determined by the Exchange. Proposed 24X Rule 11.2 also included a notice provision for securities that might be added to, or removed from, being eligible to trade during the 24X Market Session. Finally, proposed 24X Rule 11.2 initially would have allowed Exchange members to request that securities be made eligible for trading during the 24X Market Session.344 342 See Nasdaq Letter at 4; see also SIFMA Letter lotter on DSK11XQN23PROD with NOTICES1 at 8. 343 As discussed above, 24X proposed in Amendment No. 2 to limit the hours of operation of the 24X Market Session and, because the 24X Market Session will not operate on Saturdays, 24X further proposed in Amendment No. 2 to remove 24X Rule 11.15(c)(1) to delete the proposed Saturday morning trading pauses. 344 One commenter stated that proposed 24X Rule 11.2 describes how exchange-traded funds will be ‘‘addressed in terms of listing,’’ but that ‘‘24X should give a similar explanation of how mutual VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 One commenter stated that the proposal was ‘‘wise in limiting the trading to certain well-known NMS stocks.’’ 345 Another commenter stated that 24X did not adequately justify its proposal to limit the securities eligible for trading in the 24X Market Session.346 Another commenter stated that 24X should provide more transparency about the proposed notice of securities that would be available to trade because the commenter stated that a ‘‘lack of timely information’’ about the securities available to trade ‘‘runs the risk of material trading risks, including higher volatility and lower liquidity.’’ 347 In Amendment No. 1, 24X amended 24X Rule 11.2 to remove the limit on the securities eligible for trading during the 24X Market Session. As amended, 24X Rule 11.2 will allow any securities listed or admitted to trading pursuant to UTP to be eligible to trade on 24X. In other words, 24X Rule 11.2 was amended to make the eligibility requirements for the trading of securities during the 24X Market Session the same as the other three market sessions (i.e., Pre-Market Session, Core Market Session and PostMarket Session). According to 24X, expanding the securities eligible to trade during the 24X Market Session will allow 24X Members and their customers to manage their security lists, and ensure continuity of eligible securities across trading sessions, which will reduce potential trading complexities and investor inquiries about eligible securities.348 24X also stated that expanding the securities eligible to trade will allow it to compete with ATSs and other markets that operate in the overnight hours.349 Finally, 24X stated that the amended rule will prevent the exclusion of securities that may be funds will be handled in terms of listing and pricing.’’ Montone Letter at 8. As discussed above, 24X will not be a listing market. See 24X Rule 14.1. The commenter also stated that mutual funds may need to be priced at a different time of day if trading evolved into a 23-hour format. See Montone Letter at 8. In response, 24X stated, and the Commission agrees, that ‘‘the determination of how and when pricing decisions for mutual funds would be made by the mutual funds in accordance with relevant legal requirements, not by 24X.’’ 24X Letter II at 19. 24X further stated, and the Commission agrees, that the ‘‘24X Market Session does not present new issues regarding the timing of the pricing of mutual funds’’ because ‘‘trading already takes place on exchange today during pre-market sessions and post-market sessions (including overnight in the OTC market)’’ and ‘‘mutual funds have already faced such timing decisions.’’ Id. 345 See Montone Letter at 6. 346 See SIFMA Letter at 8. 347 See Nasdaq Letter at 3. See also SIFMA Letter at 8; Healthy Markets Letter at 10. 348 See 24X Letter II at 11. 349 See id. PO 00000 Frm 00175 Fmt 4703 Sfmt 4703 appropriate for trading in the 24X Market Session, such as international ETFs.350 24X Rule 11.2 as amended, is consistent with section 6(b)(5) of the Exchange Act in that it will promote just and equitable principles of trade, facilitate transactions in NMS stocks, remove impediments to, and facilitate transactions in NMS stocks and remove impediments to and prefect the mechanism of a free and open market and a national market system. While one commenter supported limiting the securities eligible for trading in the 24X Market Session,351 24X’s market structure choice not to limit the securities eligible for trading in the 24X Market Session will reduce the complexity of the 24X market structure, compared to the original proposal, by allowing securities to be eligible continuously throughout the four 24X trading sessions. In addition, 24X Members and their customers will have control over the trading strategies they may choose to implement. Finally, expanding the number of securities that are eligible to be traded during the 24X Market Session should help to promote competition between trading venues that may be operating during the times covered by the 24X Market Session, which will ultimately benefit investors. e. Customer Disclosures Pertaining to Extended Hours Trading, Including the 24X Market Session 24X proposed to require that 24X Members make certain disclosures to investors concerning risks associated with trading during Extended Hours Trading.352 In 24X Rule 3.21, 24X proposed to require the same disclosures as those required by other SROs relating to extended hours trading.353 Specifically, SRO rules require firms to provide disclosures to customers that extended hours trading ‘‘involves material trading risks, including the possibility of lower liquidity, high volatility, changing prices, unlinked markets, an exaggerated effect from news announcements, wider spreads.’’ 354 While one commenter stated, in response to a question posed by the Commission in the OIP, that the proposed disclosures would be 350 See id. supra note 345 and accompanying text. 352 See 24X Rule 3.21. 353 See, e.g., MEMX Exchange Rule 3.21; Cboe EDGX Rule 3.21; NYSE Arca Rule 7.34–E(d)(3); Nasdaq Section 20; FINRA Rule 2265. 354 See 24X Rule 3.21. See also, e.g., MEMX Exchange Rule 3.21, Cboe EDGX Rule 3.21, NYSE Arca Rule 7.34–E(d)(3), Nasdaq, Equity 2, Section 20; FINRA Rule 2265. 351 See E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices lotter on DSK11XQN23PROD with NOTICES1 sufficient to highlight the unique risks posed to investors during the 24X Market Session, as originally proposed,355 others disagreed.356 One of these commenters stated that existing customer disclosures would not provide the necessary protection for investors given the heightened risks associated with the 24X Market Session.357 Similarly, another commenter stated that it cannot ‘‘comprehend how any disclosure that would be sufficiently short and clear to be comprehensible would adequately capture the sheer volume of potential new risks or regulatory gaps in which such trading would occur.’’ 358 In response, 24X stated that it agreed with commenters that it is appropriate to require customer disclosures relating to the ‘‘heightened’’ risks inherent in Extended Hours Trading.359 In Amendment No. 1, 24X proposed ‘‘expanded’’ investor disclosures relating to additional potential risks of its 24X Market Session.360 Specifically, the new paragraph (i) added to 24X Rule 3.21 will highlight the following additional potential risks related to trading during the 24X Market Session, including the risks that: (1) the primary listing markets may not be open; (2) consolidated market data may not be available; (3) there may be limited or different regulatory protections during the 24X Market Session; (4) there may be limited trading alternatives during the 24X Market Session; (5) with near continuous trading, there may be greater risk related to system maintenance, testing and pauses and resumption in trading; and (6) the 24X Market Session is novel and may present additional unforeseen risks in addition to those discussed above.361 In Amendment No. 2, 24X amended 24X Rule 3.21 to remove the disclosure related to the risk that consolidated data may not be available because pursuant to amended 24X Rule 1.5(c), 24X will not begin operation of its 24X Market Session unless the exclusive SIPs are able to concurrently collect, consolidate, process and disseminate consolidated data.362 Thus, the proposed disclosure 355 See Montone Letter at 6 (further stating, ‘‘[a]ny person looking to trade during the 24X Market Session will be aware of the numerous risks they face in trading during this period.’’). 356 See SIFMA Letter at 4; Healthy Markets Letter at 9. 357 See SIFMA Letter at 4. 358 See Healthy Markets Letter at 9. 359 See 24X Letter II at 2. 360 See 24X Rule 3.21(i). 361 Id. 362 See 24X Rule 1.5(c). Under the rule, 24X will not operate the 24X Market Session until the 24X Market Session Proposed Rule Change has been approved or has otherwise become effective. VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 stating the risk that there might not be information disseminated by the exclusive SIPs during the 24X Market Session is no longer necessary. The expanded proposed customer disclosures set forth in 24X Rule 3.21, as amended, should address commenters’ concerns because these disclosures will provide investors with important information that should help to inform their decisions as to whether trading during extended hours, including the 24X Market Session, is suitable for them. In addition, the expanded customer disclosures set forth in 24X Rule 3.21, as amended, are consistent with the Exchange Act and, in particular, the section 6(b)(5) requirement that an exchange’s rules be designed to promote just and equitable principles of trade, remove impediments to and perfect the mechanisms of a free and open market and a national market system, and protect investors and the public interest. The disclosures will help provide notice to market participants, including investors, about the specific risks associated with Extended Hours Trading. f. Other Comments 24X proposed 24X Rule 11.12 related to the clearance and settlement of trades. Under this rule, 24X will require that all transactions through the facilities of the Exchange be automatically cleared and settled through a registered clearing agency using a continuous net settlement system when the continuous net settlement system is open. When the continuous net settlement system is closed, 24X will require trades to be processed for clearing and settlement as soon as the relevant clearing agency reopens the continuous net settlement system. One commenter questioned the settlement cycle of trades in the context of the 24X Market Session, as originally proposed.363 The commenter stated that a trade executed at 11:59 p.m. would settle the next day and a trade that executed just two minutes later, at 12:01 a.m., would not settle until the following day (assuming consecutive 363 See SIFMA Letter at 8. Specifically, the commenter stated that for certain transactions on Fridays, Saturdays, Sundays, and holidays, the day after the trade might not be a business day and thus the settlement periods would be longer than T+1. As noted above, in Amendment No. 2, 24X amended the 24X rules for the 24X Market Session so that 24X will not offer trading on weekends and holidays. The commenter submitted a second comment that raised questions about clearance and settlement of trades in the amended 24X Market Session, as well as the 24X Market Session as originally proposed. See SIFMA Letter II. PO 00000 Frm 00176 Fmt 4703 Sfmt 4703 97111 settlement dates).364 The commenter also stated that the 24X Market Session, as originally proposed, raises additional operational and risk management questions related to the clearance and settlement processes for trades that occur overnight and on non-business days operated by registered clearing agencies, including the National Securities Clearing Corporation (‘‘NSCC’’).365 In its second letter, the commenter stated that all default risks and related clearance, settlement, payment and delivery risks would be borne by broker-dealers until trades were transferred to DTCC for novation, which would impose significant counterparty risk on broker-dealers.366 The commenter stated that retail investors ‘‘would be unaware’’ that trades executed during the 24X Market Session would be excluded from the NSCC and DTCC’s real-time guarantee model.367 The commenter stated that delays in reporting overnight trades to NSCC also impact margin requirements, including margin calculations.368 24X responded that the commenter’s concerns related to the clearance and settlement of trades ‘‘have long existed and are contemplated within existing NSCC/DTCC rules.’’ 369 24X also stated that it understood, from the DTCC, that the operational and clearance and settlement risks related to its proposed overnight and weekend trading are manageable using existing risk management rules and protocols,370 and that ‘‘DTCC plans to implement additional changes to its processes going forward to further narrow the risks presented by extended trading hours.’’ 371 Further, 24X stated that trades occurring within a matter of 364 See SIFMA Letter at 8. The Depository Trust and Clearing Corporation (‘‘DTCC’’) is the holding company for the three registered clearing agencies, including NSCC and the Depository Trust Company (‘‘DTC’’), each of which provides clearance and settlement services for U.S. equities. The commenter further questioned whether the NSCC (1) would require an additional deposit to support overnight activity; (2) would process trades that occur on Saturday on the following Monday or Tuesday; (3) require Monday morning stock loan delivery or margin calls for weekend trades. The commenter also questioned whether clearing firms would be able to opt-out of clearing extended hours (pre-, post-, and overnight) activity. Id. These interpretative questions about NSCC rules should be directed to the NSCC, an SRO. As discussed throughout, trading of NMS stocks occurs overnight in the OTC market on ATSs. The commenter did not detail how the 24X proposal, as amended, raises new or novel concerns as compared to existing overnight trading sessions. 366 See SIFMA Letter II at 5. 367 See id. 368 See SIFMA Letter II at 6. 369 See 24X Letter II at 17. 370 See 24X Letter II at 18. 371 See 24X Letter IV at 5. 365 Id. E:\FR\FM\06DEN1.SGM 06DEN1 97112 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices minutes that could settle on different days is a ‘‘natural outgrowth’’ of the T+1 settlement process because there must be a time that delineates the end of a trading day.372 Finally, 24X stated that, ‘‘as with overnight trading on ATSs today, broker-dealers concerned about potential operational and clearance and settlement risks related to such trading are not required to trade in the 24X Market Session.’’ 373 The 24X rules related to clearance and settlement of transactions on 24X are consistent with the requirements of section 6(b)(5) of the Exchange Act that provides, among other things, that the rules of an exchange must foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities.374 Further, the Commission concludes that while risk cannot be eliminated, it can be appropriately managed as it relates to: (1) the proposed operation of the 24X Market Session and (2) the ability of the relevant clearing agencies for equities, NSCC and the DTC, to address any potential credit, market, and liquidity risks associated with trades submitted by the Exchange. While one commenter submitted several interpretative questions related to how clearance and settlement of trades will occur during the 24X Market Session, the commenter did not explain how the clearance and settlement of 24X Market Session trades would be different from trades that occur in the overnight sessions in the OTC market.375 Further, the commenter stated that broker-dealers will carry all default risks and related clearance, settlement, payment and delivery risks until trades are reported. Broker-dealers may assess the risks and benefits of participating in the 24X Market Session. Although a commenter stated that investors would be unaware of the risks held by broker-dealers, 24X Rule 3.21(g) requires disclosure of the risk that certain financial market infrastructure, including ‘‘the relevant clearing agency’’ and ‘‘certain other providers of settlement services,’’ may be closed for business during the Extended Hours Trading sessions. Finally, the concerns of certain commenters about weekend trading are no longer relevant because lotter on DSK11XQN23PROD with NOTICES1 372 See 24X Letter II at 18. 24X Letter IV at 5. 374 15 U.S.C. 78f(b)(5). 375 As discussed above, the 24X Market Session will not operate until the 24X Market Session Proposed Rule Change has been approved or otherwise become effective. Market participants should direct their interpretative questions about the rules of other SROs, including NSCC or DTC, to those SROs. 373 See VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 24X has amended its rules to eliminate weekend trading. 24X proposed several rules that are reasonably designed to ensure compliance with Regulation SHO. 24X Rule 11.9(a)(1) requires the execution price of an order with short sale instruction to be above the current national best bid if a short sale price test restriction under Rule 201 is in effect, unless the order is marked short exempt; and 24X Rule 11.9(a)(5) requires all orders to sell short to include a short sale instruction. 24X Rule 11.23 relates to Short Sale Circuit Breakers and sets forth that once a Short Sale Circuit Breaker pursuant to Rule 201 of Regulation SHO has been triggered during Regular Trading Hours, the price test restriction of Rule 201 will be in place for the applicable covered security for the remainder of the trading day on which the Short Sale Circuit Breaker is triggered, through the next U.S. Business Day after the trading day on which the Short Sale Circuit Breaker is triggered, and until 4 a.m. on the U.S. Business Day after the next U.S. Business Day after the trading day on which the Short Sale Circuit Breaker is triggered, unless the listing market for the covered security provides a notification via the exclusive SIPs indicating that the price test restriction is no longer in effect at a time earlier than 4 a.m. on the U.S. Business Day after the next U.S. Business Day after the trading day on which the Short Sale Circuit Breaker is triggered. 24X Rule 13.2 requires borrowing and deliveries to be effected in accordance with Rule 203 of Regulation SHO and provides that the 24X incorporates by reference Rules 200 and 203 of Regulation SHO. One commenter questioned how would compliance with the circuit breaker requirements set forth in Rule 201(b)(1)(ii) of Regulation SHO be achieved if the exclusive SIPs were not in operation during the 24X Market Session.376 The commenter also stated that the close-out requirement for the failure to deliver, set forth in Rule 204 of Regulation SHO, could be delayed due to the extension of trading hours to non-business days.377 24X responded that it would comply with Rule 201 of Regulation SHO whenever it is deemed to apply.378 The 24X rules are consistent with the Exchange Act as they incorporate Regulation SHO requirements. Accordingly, 24X rules are consistent with section 6(b)(5) of the Exchange Act because they are designed to prevent 376 See SIFMA Letter at 5. id. 378 See 24X Letter II at 14. 377 See PO 00000 Frm 00177 Fmt 4703 Sfmt 4703 fraudulent and manipulative acts and practices and promote just and equitable principles of trade. Further, in response to commenter’s concerns about potential delays in the close out requirement due to the initially proposed 24X Market Session operating during non-business days,379 the 24X Market Session, as amended, will not provide for trading on non-U.S. Business Days. In response to the question raised by the commenter about compliance with the circuit breaker requirements if the exclusive SIPs were not in operation, in Amendment No. 2, 24X amended the rules governing the 24X Market Session so that 24X will not commence operations of the 24X Market Session until the Equity Data Plans are able to collect, consolidate, process and disseminate consolidated data during the 24X Market Session designated hours.380 24X proposed 24X Rule 11.13 governing 24X’s limitation of liability arising from use of Exchange systems or facilities.381 Two commenters commented on 24X’s rule.382 One commenter stated that 24X failed to appropriately justify its proposed limitation of liability.383 This commenter stated that 24X’s limitation of liability provision is modeled on a similar provision adopted in 2005 and that subsequent significant equity market structure changes have rendered the proposed provision inadequate, particularly given the 24X Market Session, as originally proposed.384 One of these commenters further stated that 24X provides no support for the Commission to find the limitation of liability provisions consistent with the Exchange Act or the public interest, and that ‘‘[a]n even greater level of scrutiny regarding the proposed 24X limitation of liability is warranted due to the additional operational risks associated with operating a near 24x7 market center.’’ 385 The other commenter stated that ‘‘[n]otably, 24X intends to operate for significantly more trading hours and trading days than other national securities exchanges, and it has not explained why the liability caps 379 See supra notes 376–377 and accompanying text. 380 See 24X Rule 1.5(c), which requires 24X to file the 24X Market Session Proposed Rule Change. 381 See 24X Rule 11.13. 382 See FIA PTG Letter II and SIFMA Letter II. 383 See FIA PTG Letter II at 1–3. 384 Id. at 2–3; see also SIFMA Letter II at 8–9. 385 FIA PTG Letter II at 2 (stating, as an example, ‘‘in the event of a technological error during the 24X Market Session, there may be limited staff available to quickly resolve a critical issue, increasing the likelihood a malfunction will cause harm and persist over an extended period of time.’’). E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices lotter on DSK11XQN23PROD with NOTICES1 included in its proposed rule are reasonable or appropriately tailored to address the risk of system errors or malfunctions on its market across these longer periods.’’ 386 In response to the commenter’s concerns, 24X stated that it believes that the 24X rule complies with the Exchange Act.387 24X continued that other exchanges operate pursuant to the ‘‘same rule’’ and that ‘‘there is no basis for reaching a different conclusion in the context of 24X’s Form 1 application.’’ 388 24X also stated that ‘‘the liability caps were not established based on the number of trading hours on the exchange.’’ 389 The limitation of liability provisions of 24X Rule 11.13 are consistent with the Exchange Act requirement that the rules of an exchange be designed to promote just and equitable principles of trade and not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Exchange Act.390 24X Rule 11.13 is substantively similar to other exchanges’ limitation of liability provisions previously approved by the Commission and applicable to other exchanges that have extended hours trading sessions.391 In addition, with respect to the commenters’ statements that greater exchange liability would be appropriate given the ‘‘additional operational risks associated with operating a near 24x7 market center,’’ 24X will be required to comply with its obligations under the Exchange Act during all hours that it is operating. While 24X has more hours of operations as compared to other exchanges, 24X will have SRO obligations during the 24X Market Session as it does during its other trading sessions. Further, as discussed below, 24X will be an SCI entity that must comply with Regulation SCI.392 While commenters submitted comments on the 24X Form 1, both commenters stated that the limitation of liability caps on all exchanges should be reevaluated. As stated above, the Commission, consistent with its oversight of the national market system, will continue to monitor the national market system. However, the monitoring of market developments does not foreclose Commission action on the 24X Form 1, which for reasons discussed 386 See 387 See SIFMA Letter II at 9. 24X Letter III at 5. 388 Id. 389 See 24X Letter IV at 5. U.S.C. 78f(b)(5) and (8). 391 See e.g., MEMX Exchange Rule 11.14; LTSE Exchange Rule 11.260. 392 See section III.E.2. 390 15 VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 throughout, satisfies the requirements of the Exchange Act. One commenter requested interpretative guidance on the application of Commission Rule 605 and Rule 610(d) and FINRA Rule 5320.08 to the proposed 24X trading sessions (i.e., Pre-Market Session, PostMarket Session, 24X Market Session and Core Market Session).393 These rules are clear as to their application during different sessions and the commenter did not state why the 24X Form 1 raised unique interpretative questions compared to the extended hours sessions on other national securities exchanges that have operated for several years. E. Technology Agreement With MEMX Technology 1. Delivery, Licenses and Services Agreement (‘‘DLSA’’) The Exchange will utilize trading technology and systems (collectively, the ‘‘Technology and System’’) developed by MEMX Technologies, LLC (‘‘MEMX Technologies’’),394 a subsidiary of MEMX Holdings LLC, and provided to the Exchange pursuant to a DLSA between MEMX Technologies and the Exchange.395 Specifically, pursuant to the DLSA, MEMX Technologies will provide technology support services to 24X, which will include ‘‘(1) the development and testing of software and hardware necessary to operate the matching engine and connectivity to other exchanges via a third-party routing broker(s) and third party-developed functions (including clearing, custody, and client connectivity), (2) the 393 See SIFMA Letter II at 13. This commenter posed a number of questions that were interpretive in nature or technical and related to implementation of extended hours trading. As discussed throughout, there are existing extended hours trading sessions on other exchanges and the rules that are applicable during extended hours sessions are clear. The commenter stated that a broader consideration of extended hours trading in the national market system should be conducted. See supra section III.D.2.a (discussing comments requesting a roundtable or broader consideration of extended hours trading). As discussed above, the Commission continues to monitor the national market system, including the expansion of trading hours in the equity market. 394 24X does not own the Technology and System but states that it has obtained all necessary licenses and authorizations from MEMX Technologies in order for 24X and its Members and Users to fully utilize the Technology and System. See Form 1, Exhibit E. 395 See Form 1, Exhibit E. Among other things, the DLSA sets forth a multi-year term with automatic renewal provisions that requires MEMX Technologies to deliver the Technology and System and run industry connectivity testing and other functional-based testing. See id. The DLSA also provides for transition services to the extent either party decides to terminate the arrangement. See id. PO 00000 Frm 00178 Fmt 4703 Sfmt 4703 97113 provision of technical support in order for the Exchange to operate and monitor the Exchange; and (3) the provision of ongoing system availability commitments, updates, fixes, and technology support.’’ 396 MEMX Technologies will support intra-day compliance monitoring by 24X and provide timely reporting to 24X of any potential Regulation SCI events or other operational issues with the System.397 All services provided to the Exchange by MEMX Technologies will be based upon requirements and instructions determined by the Exchange.398 Although MEMX Technologies would provide the technology support services, 24X will be responsible for operating and monitoring its Exchange-related Technology and System and administering the rules of the Exchange and other rules and regulations applicable to the Exchange.399 To ensure logical and physical separation from MEMX Technologies and its affiliates, the Technology and System will operate a separate instance of MEMX Technologies’ core matching engine technology and software, utilizing separate servers from the MEMX Exchange system and separate connections for 24X Members to connect to 24X.400 Under the terms of the DLSA, 24X may request MEMX Technologies to develop and implement (for a fee to be determined by the parties) technology changes that change the operation of the 24X Technology and System. 24X is not obligated to agree to, accept, or adopt changes to the Technology and System that are not essential to the operation of its instance of the Technology and System.401 Additionally, 24X stated that the ‘‘trading platforms operated by MEMX Technologies (including 24X National Exchange, LLC, MEMX Exchange, and any other exchanges or trading platforms operated by MEMX Technologies) currently are and will be segregated to ensure that 24X is not deemed to be a facility of MEMX Exchange.’’ 402 MEMX Technologies will not use or disclose information or data (i) about or originating with 24X in its dealings with MEMX Exchange or any other platform or (ii) about or originating with MEMX Exchange or any other platform in its dealing with 24X.403 396 See Form 1, Exhibit C. id. 398 See id. 399 See id. 400 See Form 1, Exhibit E. 401 See id. 402 See Form 1, Exhibit C. 403 See id. 397 See E:\FR\FM\06DEN1.SGM 06DEN1 97114 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices One commenter stated that the proposal by 24X to outsource its technology needs, along with the maintenance and remediation of technology issues, to MEMX Technologies ‘‘is distinct from the existing common practice of exchanges and other venues to outsource discrete technology elements to individual vendors based on the expertise provide by each vendor, subject to oversight of the vendors by the exchange as required by Regulation SCI.’’ 404 The commenter further stated that other ‘‘existing examples do not involve exclusive reliance on a single technology provider (affiliated with one exchange) for multiple U.S. registered exchange[s].’’ 405 This commenter’s statements were disputed by another commenter, who stated that ‘‘having a common technology platform underlying multiple registered exchanges is hardly a new phenomenon. Of the sixteen currently licensed U.S. equities exchanges, twelve are operated by just three exchange groups that each operate several independently-registered exchanges using a common technology platform.’’ 406 The commenter further stated that use of vendors ‘‘allows competitors of all sorts to focus on their core business, whether that’s facilitating the move to a 24-hour trading model, . . . or in attracting listings from corporate issuers.’’ 407 24X responded that ‘‘the use of a common technology platform for multiple registered exchanges is a common practice. 24X understands that three existing exchange groups operate several independently-registered national securities exchanges using a common technology platform.’’ 408 The Commission agrees that the outsourcing of an exchange’s technology platform to another entity is not novel.409 404 See IEX Letter at 2. IEX Letter at 3. 406 See MEMX Letter at 2. The commenter further stated, that as an example, ‘‘Nasdaq technology is also used to operate at least one ATS that is meets the volume threshold for compliance with Regulation SCI; the securities information processor (‘‘SIP’’) for Tape C stocks; and two of three trade reporting facilities (‘TRFs’).’’ 24X agreed with this statement. See 24X Letter IV at 2–3. 407 See MEMX Letter at 4. 408 See 24X Letter III at 4. 409 See Securities Exchange Act Release No. 100783 (Aug. 20, 2024), 89 FR 68481 (Aug. 26, 2024) (SR–LTSE–2024–03) (‘‘LTSE—MEMX Technologies Approval Order’’) (approval of proposed rule change by the Long-Term Stock Exchange to transition from its current trading platform to a new trading platform that uses technology provided by MEMX Technologies). One commenter had stated that arguments regarding the use of MEMX’s technology have been substantively addressed by the Commission in the LTSE—MEMX Technologies Approval Order and that ‘‘the lotter on DSK11XQN23PROD with NOTICES1 405 See VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 Two commenters stated that there should be greater clarification on the relationship between 24X and MEMX Technologies.410 A third commenter expressed concerns about the proposed agreement between 24X and MEMX Technologies.411 One of these commenters stated that the Exchange would be heavily dependent on MEMX Technologies, and asked whether MEMX Technologies would be more properly viewed as an owner or control person for its technology needs.412 As the Commission stated above, MEMX Technologies is a vendor that will provide technology support services to 24X, to meet requirements established by 24X; MEMX Technologies has no ownership interest in 24X.413 The ultimate responsibility for regulatory compliance with the Exchange Act and rules thereunder falls on 24X as the SRO. Nor will MEMX Technologies be able to assert control over 24X regarding operation of the Technology and System. Under the terms of the DLSA, as described in the Form 1, 24X is not obligated to agree to, accept, or adopt changes to the Technology and System that are not essential to the operation of its instance of the Technology and System.414 Another commenter stated that the ‘‘exclusive reliance on a single vendor raises questions about the availability of resources by [MEMX Technologies] to fill that role.’’ 415 Similarly, one commenter asked for clarification as to Commission’s order addresses the pertinent legal questions and concludes that this arrangement [between LTSE and MEMX Technologies] ‘is consistent with the Exchange Act.’ ’’ See MEMX Letter at 5. 24X agreed with this commenter’s statement. See 24X Letter IV at 3. 410 See Healthy Markets Letter at 9–10; Montone Letter at 5. 411 See IEX Letter. 412 See Healthy Markets Letter at 9. The commenter also stated that the arrangement between 24X and MEMX Technologies ‘‘would need to be public, so that the Commission and public could assess the conflicts of interests and risks posed by it to the operations of 24X.’’ Healthy Markets Letter at 10. A description of the DLSA and its terms may be found in 24X’s Form 1 at Exhibits C and E and have been subject to notice and public comment. Exhibits C and E to the Form 1 do not require these contracts to be filed. See Exhibit C (requiring, among other things, information relating to any entity with whom the applicant has a contractual or other arrangement relating to the operation of an electronic trading system to be used to effect transactions on the exchange) and Exhibit E (requiring a description of the operation of the exchange). These exhibits provide sufficient information to assess the proposed arrangement. 413 See Form 1, Exhibit C. 414 See Form 1, Exhibit E. 415 See IEX Letter at 2. Although MEMX Technologies will develop and maintain the Technology and System pursuant to the DLSA, it is 24X market operations staff that will be responsible for the daily operations of 24X’s market. See Form 1, Exhibit E. PO 00000 Frm 00179 Fmt 4703 Sfmt 4703 whether MEMX Technologies ‘‘has the staff and infrastructure to facilitate 23hour continuous trading’’ 416 and stated that there should be ‘‘a detailed reassurance that the technology underlying the exchange will not breakdown due to a high user rate and further if the technology does fail, what the procedures will be to protect the exchange while also safeguarding investors information and portfolios.’’ 417 24X in response stated that the technology it will utilize ‘‘has a proven track record for resiliency, a track record that should give the SEC and market participants comfort regarding the reliability of 24X’s market offering.’’ 418 Another of the commenters stated that 24X’s potential use of MEMX Technologies for operational support raises conflicts concerns and that the Form 1 ‘‘contains little if any information about management of conflicts more generally.’’ 419 This commenter stated that there are no statements or information about the ‘‘nature and extent’’ of the segregation between 24X and MEMX Technologies or the ‘‘financial terms of 24X’s agreement with [MEMX Technologies] and about what type of separation may exist between [MEMX Technologies] and MEMX.’’ 420 The commenter further stated that its concerns ‘‘may be magnified to the extent that other exchanges propose to make use of this same exclusive ‘white label’ technology solution by the same vendor to meet their technology needs, as has been widely reported. Under that construction, [MEMX Technologies] would appear to be performing in effect a technology utility function for multiple regulated exchanges, but it 416 Montone Letter at 5. One commenter asked whether in the event of a potentially serious cyber breach of its systems, 24X would ’’be in a position to promptly identify such a breach if it is entirely reliant on a third party for security and other technology’’ and, once aware, what assistance it would ‘‘require from its supplier to be able to respond in a timely way that protects exchange systems and user information.’’ See Heathy Markets Letter at 9. The Commission reiterates that the ultimate responsibility for regulatory compliance with the Exchange Act and rules thereunder falls on 24X and should 24X require, the DLSA provides that 24X may request technology changes from MEMX Technologies to change the operation of the System. See Form 1, Exhibit E. 417 See Montone Letter at 5. 418 24X Letter III at 4. 24X also agreed with a commenter that stated that ‘‘the strength of MEMX’s technology platform is the primary reason that 24X, LTSE, and several other trading venues have contracted with MEMX Technologies to power their trading systems. MEMX has shown that its technology platform is robust and resilient day in and day out for the past four years.’’ See 24X Letter IV at 2–3 (quoting from MEMX Letter at 2). 419 See IEX Letter at 2–3. 420 See IEX Letter at 3. E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices would not be a regulated entity itself, and the Commission would have limited ability to evaluate, and no ability to control, how it performs that critical function.’’ 421 24X, not MEMX Technologies, has regulatory responsibility over the 24X System, and therefore 24X as a SRO is fully responsible for discharging its obligations as a registered national securities exchange. The Commission disagrees with the commenter that the Form 1 contains little information about these matters.422 24X has provided sufficient detail in the Form 1 regarding the relationship between 24X and MEMX Technologies.423 MEMX Technologies will not use or disclose information or data (i) about or originating with 24X in its dealings with MEMX Exchange or any other platform or (ii) about or originating with the MEMX Exchange or any other platform in its dealings with 24X.424 Also, the DLSA, among other things, enforces logical and physical separation from MEMX Technologies and its affiliates in that the Technology and System will operate a separate instance of MEMX Technologies’ core matching engine technology and software, utilizing separate servers from MEMX Exchange system and separate connections for Members to connect to 24X.425 Further, 24X will interact with the MEMX Exchange, including MEMX Exchange’s routing broker-dealer, on the same armslength commercial terms as 24X interacts with other registered national securities exchanges and their routing broker-dealers.426 Membership in the MEMX Exchange will not confer any advantages when trading on 24X (or vice versa), such as faster connections, lower fees, or preferential treatment of orders on the 24X System.427 Membership in the MEMX Exchange will also not be a requirement for membership in or connection to 24X (or vice versa).428 After consideration of the disclosures 24X made in its Form 1 application and review of the comments, the Commission finds that 24X’s proposal to utilize technology provided and maintained by MEMX Technologies is consistent with the Exchange Act, in particular with section 6(b)(1) of the Exchange Act,429 which requires an 421 See lotter on DSK11XQN23PROD with NOTICES1 id. 422 See supra note 412. 423 See Form 1, Exhibit E. See also 24X Letter II at 15. 424 See Form 1, Exhibit C. 425 See Form 1, Exhibit E. 426 See id. 427 See id. 428 See Form 1, Exhibit E. 429 15 U.S.C. 78f(b)(1). exchange to be so organized and have the capacity to carry out the purposes of the Exchange Act and to comply and enforce compliance by its members and persons associated with its members with the Exchange Act and the rules thereunder. The arrangement between 24X and MEMX Technologies, as described in the 24X Form 1, will enable the Exchange to utilize trading platform technology that is already in use with an experienced operator.430 However, the terms of the DLSA between 24X and MEMX Technologies, as described in the Form 1, are reasonably designed not to confer upon either MEMX Exchange or 24X Members any advantages when trading on 24X, or vice versa, such as faster connections, lower fees, or preferential treatment of orders on the 24X System.431 Further, as described in the Form 1, the DLSA will not include the technology or systems to route orders to the MEMX Exchange or any other exchange.432 24X will retain responsibility for overseeing the daily market operations of its trading system; MEMX Technologies will be responsible for performing all necessary maintenance and remediation of problems relating to the logical and physical infrastructure, in accordance with the DLSA.433 Therefore, 24X will be capable of exercising sufficient control over the operation of its Technology and System, and will be sufficiently independent from MEMX Technologies, to enable 24X to comply with the requirements under the Exchange Act and the rules thereunder. The provisions of the DLSA described above demonstrate that the support services provided by MEMX Technology are adequate to enable 24X to meet its self-regulatory obligations. In order for 24X to perform its regulatory obligations, the DLSA provides 24X with enumerated audit rights to review books and records of MEMX Technologies related to the provision of services under the DLSA, and the ability either to produce itself, or direct MEMX Technologies to produce, MEMX Technologies documents and information related to the operation of the Technology and System to the Commission or other regulators or parties upon request, subject to appropriate due process.434 VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 430 See e.g., LTSE—MEMX Technologies Approval Order, supra note 409. 431 See Form 1, Exhibit E. 432 24X may automatically route orders to other exchanges through the use of one or more routing brokers that are not affiliated with 24X. See Form 1, Exhibit E. See also 24X Rules 2.11 and 11.10. 433 See Form 1, Exhibit E. 434 See id. PO 00000 Frm 00180 Fmt 4703 Sfmt 4703 97115 Finally, 24X will have regulatory responsibility for its trading Technology and System and will be responsible to fully discharge its obligations as a national securities exchange. 24X will also be responsible for its market and cross-market surveillance through the RSA, described above,435 and maintain its independent regulatory function to oversee the RSA and will not rely on or utilize MEMX Exchange or its personnel to fulfill any aspect of those obligations on 24X’s behalf. 2. Regulation SCI As a registered national securities exchange, 24X will be an ‘‘SCI entity’’ responsible for compliance with the requirements of Regulation Systems Compliance and Integrity (‘‘Regulation SCI’’).436 Regulation SCI requires SCI entities to establish written policies and procedures reasonably designed to ensure that their applicable systems have levels of capacity, integrity, resiliency, availability, and security adequate to maintain their operational capability and promote the maintenance of fair and orderly markets, and that they operate in a manner that complies with the Exchange Act.437 In addition, Regulation SCI requires SCI entities to take corrective action with respect to SCI events (defined to include systems disruptions, systems compliance issues, and systems intrusions), notify the Commission of such events, and disseminate information about certain SCI events to affected members or participants (and, for certain major SCI events, to all members or participants of the SCI entity).438 Moreover, Regulation SCI requires SCI entities to conduct a review of their systems by objective personnel at least annually, submit quarterly reports regarding completed, ongoing, and planned material changes to their SCI systems to the Commission,439 and maintain certain books and records.440 It also requires SCI entities to mandate participation by designated members or participants in scheduled testing of the operation of their business continuity and disaster recovery plans, including backup systems, and to coordinate such testing 435 See supra section III.C.2. (discussing 24X’s RSA with FINRA). 436 See Securities Exchange Act Release No. 73639 (Nov. 19, 2014), 79 FR 72252 (Dec. 5, 2014) (‘‘Regulation SCI 2014 Adopting Release’’). 437 See 17 CFR 242.1001. 438 See 17 CFR 242.1002. See also 17 CFR 242.1000 and 17 CFR 242.1006. 439 See 17 CFR 242.1003. See also 17 CFR 242.1000. 440 See 17 CFR 242.1005. See also 17 CFR 242.1007. E:\FR\FM\06DEN1.SGM 06DEN1 97116 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices lotter on DSK11XQN23PROD with NOTICES1 on an industry- or sector-wide basis with other SCI entities.441 Regulation SCI applies to an SCI entity’s ‘‘SCI systems,’’ which are systems that directly support any one of six key securities market functions— trading, clearance and settlement, order routing, market data, market regulation, and market surveillance (‘‘SCI systems’’). Regulation SCI also applies to ‘‘indirect SCI systems,’’ which are any systems that, if breached, are likely to pose a security threat to SCI systems. Further, certain SCI systems that are ‘‘critical SCI systems’’ are held to certain heightened requirements under Regulation SCI.442 The Exchange has obtained commitments from MEMX Technologies in connection with the Exchange’s engagement of MEMX Technologies to develop, license, and operate the Technology and System on behalf of the Exchange to, among other things, address how this arrangement is consistent with the requirements of Regulation SCI.443 The Exchange acknowledges that as the SCI entity contracting with MEMX Technologies to provide software and hardware to operate both SCI systems and indirect SCI systems, 24X will have full responsibility for ensuring that it is in compliance with all aspects of Regulation SCI, including the requirements for its backup and recovery capabilities.444 In addition, the DLSA includes commitments from MEMX Technologies as developer, licensor, and operator of the Technology and System to cooperate with the Exchange and provide the Exchange with the information and access that the Exchange reasonably believes will allow the Exchange to satisfy its obligations under Regulation SCI.445 One commenter stated that it does ‘‘not see how 24X would be able to comply with Regulation SCI when it would not be in control of its own systems. . . . The introduction of another essential business partner creates previously unprecedented conflicts of interest for a registered exchange and complications for ownership and governance.’’ 446 Contrary to the commenter’s statements, Regulation SCI contemplates the possibility of an SCI entity’s SCI systems and indirect SCI systems being operated on its behalf by another 441 See 17 CFR 242.1004. 17 CFR 242.1000 (definitions of ‘‘SCI systems,’’ ‘‘indirect SCI systems,’’ and ‘‘critical SCI systems’’). 443 See Form 1, Exhibit E. 444 See id. 445 See id. 446 See Healthy Markets Letter at 9. 442 See VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 entity.447 In fact, because SCI entities engage in outsourcing to varying degrees, the Commission stated when it adopted Regulation SCI, ‘‘if an SCI entity determines to utilize a third party for an applicable system, it is responsible for having in place processes and requirements to ensure that it is able to satisfy the requirements of Regulation SCI for systems operated on behalf of the SCI entity by a third party.’’ 448 Another commenter questioned how exchanges that are operating Regulation SCI systems ‘‘in production mode at all hours’’ would be able to comply with Regulation SCI, including requirements for systems testing.449 In its response, 24X set forth a description of how its policies and procedures comply with the requirements of Regulation SCI.450 The periodic capacity stress testing, testing of system changes and testing in conjunction with the annual SCI review will be coordinated by 24X technology operations with MEMX Technologies personnel, and that vulnerability and threat testing will be coordinated by 24X with an outside vendor who will perform the tests, and with MEMX Technologies personnel as necessary.451 Finally, as discussed above, in Amendment No. 2, 24X has modified the 24X Market System so that trading will not occur on weekends. Accordingly, the concerns raised about systems testing when Regulation SCI systems would be ‘‘in production mode 447 See, e.g., Rule 1000 (definitions of SCI systems, critical SCI systems and indirect SCI systems, each of which contains ‘‘any. . .systems of, or operated by or on behalf of. . .’’). See also Regulation SCI 2014 Adopting Release, supra note 436 at 72276 (discussing the utilization of third parties by SCI entities for applicable systems). 448 See id. (‘‘The Commission agrees with the comment that an SCI entity should be responsible for managing its relationship with third parties operating systems on behalf of the SCI entity through due diligence, contract terms, and monitoring of third party performance. However, the Commission believes that these methods may not be sufficient in all cases to ensure that the requirements of Regulation SCI are met for SCI systems operated by third parties. . . . . Instead, if an SCI entity determines to utilize a third party for an applicable system, it is responsible for having in place processes and requirements to ensure that it is able to satisfy the requirements of Regulation SCI for systems operated on behalf of the SCI entity by a third party. The Commission believes that it would be appropriate for an SCI entity to evaluate the challenges associated with oversight of thirdparty vendors that provide or support its applicable systems subject to Regulation SCI. If an SCI entity is uncertain of its ability to manage a third-party relationship (whether through due diligence, contract terms, monitoring, or other methods) to satisfy the requirements of Regulation SCI, then it would need to reassess its decision to outsource the applicable system to such third party.’’). 449 See SIFMA Letter at 8. 450 See 24X Letter II at 5. 451 See id. PO 00000 Frm 00181 Fmt 4703 Sfmt 4703 at all hours’’ are no longer germane. Based on the statements 24X has made in the Form 1, as amended, and 24X’s response to commenters with respect to its obligations under Regulation SCI, as well as the provisions in the DLSA as described by 24X in the Form 1, 24X’s proposal regarding the engagement of a third party to develop, license, and operate the Technology and System is designed to support the Exchange’s ability to comply with its regulatory obligations under Regulation SCI. F. Discipline and Oversight of Members As stated above, one prerequisite for the Commission’s grant of an exchange’s application for registration is that a proposed exchange must be so organized and have the capacity to be able to carry out the purposes of the Exchange Act.452 Specifically, an exchange must be able to enforce compliance by its members and persons associated with its members with the federal securities laws and rules thereunder and the rules of the exchange.453 Pursuant to an RSA with FINRA, FINRA will perform many of the initial disciplinary processes on behalf of 24X.454 For example, FINRA will investigate potential securities laws violations, issue complaints, and conduct hearings pursuant to 24X rules. Appeals from disciplinary decisions will be heard by the 24X Appeals Committee,455 and the 24X Appeals Committee’s decision shall be final.456 In addition, the 24X Board on its own initiative may order review of a disciplinary decision.457 The 24X LLC Agreement and 24X rules provide that the Exchange has disciplinary jurisdiction over its Members 458 so that it can enforce its Members’ compliance with its rules and the federal securities laws and rules.459 The Exchange’s rules also permit 24X to sanction Members for violations of its rules and violations of the federal securities laws and rules by, among other things, expelling or suspending Members, limiting Members’ activities, functions, or operations, fining or censuring Members, or suspending or barring a person from being associated 452 See 15 U.S.C. 78f(b)(1). id. 454 See supra notes 119–120 and accompanying text. See also 24X Rule 9.8 (stating that 24X and FINRA are parties to a regulatory services agreement, pursuant to which FINRA will perform certain functions described in Chapter 9 on behalf of 24X). 455 See 24X Rule 8.10(b). 456 See id. 457 See 24X Rule 8.10(c). 458 See supra note 48. 459 See generally 24X LLC Agreement, Article XI and 24X Rules Chapters 7 and 8. 453 See E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices with a Member, or any other fitting sanction.460 24X’s rules also provide for the imposition of fines for certain minor rule violations in lieu of commencing disciplinary proceedings.461 Accordingly, as a condition to the operation of 24X, a Minor Rule Violation Plan (‘‘MRVP’’) filed by 24X under Exchange Act Rule 19d-1(c)(2) must be declared effective by the Commission.462 The Commission finds that the 24X LLC Agreement and 24X rules concerning its disciplinary and oversight programs are consistent with the requirements of sections 6(b)(6) and 6(b)(7) of the Exchange Act 463 in that they provide fair procedures for the disciplining of members and persons associated with members. The Commission further finds that the rules of 24X provide it with the ability to comply, and with the ability to enforce compliance by its Members and persons associated with its Members, with the provisions of the Exchange Act, the rules and regulations thereunder, and the rules of 24X.464 G. Trading on 24X Pursuant to Unlisted Trading Privileges 24X does not intend to be a primary listing market for securities.465 Accordingly, 24X has not proposed rules that would allow it to primarily list any securities at this time. Instead, 24X has proposed to trade securities pursuant to UTP. 24X Rule 14.1 establishes the Exchange’s authority to trade securities on a UTP basis. 24X Rule 14.1(a) provides that 24X may extend UTP to any security that is an NMS stock that is listed on another national securities exchange or with respect to which UTP may otherwise be extended in accordance with section 12(f) of the Exchange Act.466 24X Rule 14.1(a) further provides that any such security would be subject to all 24X rules applicable to trading on 24X, unless otherwise noted. 24X Rule 14.1(b) establishes additional rules for trading of UTP Exchange Traded Products, which are defined in 24X Rule 1.5(nn).467 24X 460 See 24X Rule 8.1(a). 24X Rule 8.15. 462 17 CFR 240.19d–1(c)(2). 463 15 U.S.C. 78f(b)(6) and (b)(7). 464 See 15 U.S.C. 78f(b)(1). 465 See Form 1, Exhibit H. 466 15 U.S.C. 78l(f). 467 Pursuant to 24X Rule 1.5(nn), the term ‘‘UTP Exchange Traded Products’’ means ‘‘derivative securities products that are not listed on the Exchange but that trade on the Exchange pursuant to unlisted trading privileges, including the following: equity linked notes, investment company units, index-linked exchangeable notes, equity gold shares, equity index-linked securities, commodity- lotter on DSK11XQN23PROD with NOTICES1 461 See VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 Rule 14.1(b) provides that 24X will distribute an information circular prior to the commencement of trading in a UTP Exchange Traded Product that generally would include the same information as the information circular provided by the listing exchange, including (a) the special risks of trading the Exchange Traded Product, (b) the Exchange’s rules that would apply to the Exchange Traded Product, and (c) information about the dissemination of value of the underlying assets or indices. 24X Rule 14.1(b)(2) establishes certain requirements for Members that have customers that trade UTP Exchange Traded Products.468 24X Rule 14.1(b)(4) also establishes certain requirements for any Member registered as a Market Maker in a UTP Exchange Traded Product that derives its value from one or more currencies, commodities, or derivatives based on one or more currencies or commodities, or is based on a basket or index composed of currencies or commodities. 24X Rule 14.1(b)(5) provides that the Exchange’s surveillance procedures for Exchange Traded Products traded on the Exchange pursuant to UTP would be similar to the procedures used for equity securities traded on the Exchange and would incorporate and rely upon existing Exchange surveillance systems. The Commission finds that the Exchange’s proposed approach to the trading of securities on a UTP basis, as set forth in 24X Rule 14.1, is consistent with section 12(f) of the Exchange Act and Rule 12f-5 thereunder.469 Rule 12f5 under the Exchange Act requires an exchange that extends unlisted trading privileges to securities to have in effect a rule or rules providing for transactions in the class or type of security to which linked securities, currency-linked securities, fixedincome index-linked securities, futures linked securities, multifactor-index-linked securities, trust certificates, currency and index warrants, portfolio depository receipts, trust issued receipts, commodity-based trust shares, currency trust shares, commodity index trust shares, commodity futures trust shares, partnership units, paired trust shares, trust units, managed fund shares, and managed trust securities.’’ 468 24X Rule 14.1(b)(2)(A) states that 24X Rule 14.1(b)(2) applies to UTP Exchange Traded Products that are the subject of an order by the Commission exempting the series from certain prospectus delivery requirements under Section 24(d) of the Investment Company Act of 1940 and are not otherwise subject to prospectus delivery requirements under the Securities Act of 1933. 24X Rule 14.1(b)(2)(B) requires members to provide a written description of the terms and characteristics of UTP Exchange Traded Products to purchasers of such securities, not later than the time of confirmation of the first transaction, and with any sales materials relating to UTP Exchange Traded Products. 24X Rule 14.1(b)(2)(C) requires members to provide a prospectus to a customer requesting a prospectus. 469 15 U.S.C. 78l(f); 17 CFR 240.12f–5. PO 00000 Frm 00182 Fmt 4703 Sfmt 4703 97117 the exchange extends unlisted trading privileges.470 24X Rule 14.1 includes a provision that any security traded UTP on the Exchange ‘‘shall be subject to all Exchange rules applicable to trading on the Exchange, unless otherwise noted.’’ 471 The provisions in 24X Rule 14.1 are substantively the same as the existing rules of the MEMX Exchange.472 Accordingly, pursuant to section 12(f) of the Exchange Act and Rule 12f-5 thereunder, 24X will be permitted to extend unlisted trading privileges to securities of the same class, subject to the trading rules of the Exchange. H. Section 11(a) of the Exchange Act Section 11(a)(1) of the Exchange Act 473 prohibits a member of a national securities exchange from effecting transactions on that exchange for its own account, the account of an associated person, or an account over which it or its associated person exercises investment discretion (collectively, ‘‘covered accounts’’) unless an exception applies. Rule 11a2– 2(T) under the Exchange Act,474 known as the ‘‘effect versus execute’’ rule, provides exchange members with an exemption from the section 11(a)(1) prohibition. Rule 11a2–2(T) permits an exchange member, subject to certain conditions, to effect transactions for covered accounts by arranging for an unaffiliated member to execute transactions on the exchange. To comply with Rule 11a2–2(T)’s conditions, a member: (i) must transmit the order from off the exchange floor; (ii) may not participate in the execution of the transaction once it has been transmitted to the member performing the execution; 475 (iii) may not be affiliated with the executing member; and (iv) with respect to an account over which the member or an associated person has investment discretion, neither the member nor its associated person may retain any compensation in connection with effecting the transaction except as provided in the Rule. In a letter to the Commission, 24X requested that the Commission concur with 24X’s conclusion that 24X 470 See 17 CFR 240.12f–5. See also Securities Exchange Act Release No. 35737 (Apr. 21, 1995), 60 FR 20891 (Apr. 28, 1995) (File No. S7–4–95) (adopting Rule 12f–5 under the Exchange Act). 471 See 24X Rule 14.1(a). 472 See MEMX Exchange Rule 14.1. 473 15 U.S.C. 78k(a)(1). 474 17 CFR 240.11a2–2(T). 475 This prohibition also applies to associated persons. Rule 11a2–2(T)(a)(2)(iii), 17 CFR 240.11a2– 2(T)(a)(2)(iii). The member may, however, participate in clearing and settling the transaction. Rule 11a2–2(T)(b)(3), 17 CFR 240.11a2–2(T)(b)(3). E:\FR\FM\06DEN1.SGM 06DEN1 97118 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices lotter on DSK11XQN23PROD with NOTICES1 Members that enter orders into the 24X trading system satisfy the conditions of Rule 11a2–2(T).476 For the reasons set forth below, 24X Members entering orders into the 24X trading system could satisfy the requirements of Rule 11a2–2(T). Rule 11a2–2(T)’s first condition is that orders for covered accounts be transmitted from off the exchange floor. In the context of automated trading systems, the Commission has found that the off-floor transmission condition is met if a covered account order is transmitted from a remote location directly to an exchange’s floor by electronic means.477 24X represents that 24X does not have a physical trading floor, and the 24X trading system will receive orders from members electronically through remote terminals or computer-to-computer interfaces.478 The 24X trading system satisfies this offfloor transmission condition. The second condition requires that the member and any associated person not participate in the execution of its order after the order has been transmitted. 24X represents that at no time following the submission of an order is a member or an associated person of the member able to acquire control or influence over the result or timing of the order’s execution.479 According to 24X, the execution of a member’s order is determined solely by 476 See letter from David Sassoon, General Counsel, 24X, to Vanessa Countryman, Secretary, Commission, dated Feb. 6, 2024 (‘‘24X 11(a) Letter’’). 477 See, e.g., Nasdaq Order, supra note 57; Securities Exchange Act Release Nos. 61419 (Jan. 26, 2010), 75 FR 5157 (Feb. 1, 2010) (SR–BATS– 2009–031) (approving BATS options trading); 59154 (Dec. 23, 2008), 73 FR 80468 (Dec. 31, 2008) (SR– BSE–2008–48) (approving equity securities listing and trading on BSE); 57478 (Mar. 12, 2008), 73 FR 14521 (Mar. 18, 2008) (SR–NASDAQ–2007–004 and SR–NASDAQ–2007–080) (approving Nasdaq Options Market options trading); 29237 (May 24, 1991), 56 FR 24853 (May 31, 1991) (SR–NYSE–90– 52 and SR–NYSE–90–53) (approving NYSE’s OffHours Trading Facility); and 15533 (Jan. 29, 1979), 44 FR 6084 (Jan. 31, 1979) (‘‘1979 Release’’). 478 See 24X 11(a) Letter, supra note 476 at 2. 479 See id. at 3. 24X states that a member may cancel or modify the order, or modify the instructions for executing the order, after the order has been transmitted, provided that such cancellations or modifications are transmitted from off an exchange floor. The Commission has stated that the non-participation condition is satisfied under such circumstances so long as such modifications or cancellations are also transmitted from off the floor. See Securities Exchange Act Release No. 14563 (Mar. 14, 1978), 43 FR 11542 (Mar. 17, 1978) (‘‘1978 Release’’) (stating that the ‘‘non-participation requirement does not prevent initiating members from canceling or modifying orders (or the instructions pursuant to which the initiating member wishes orders to be executed) after the orders have been transmitted to the executing member, provided that any such instructions are also transmitted from off the floor’’). VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 what quotes and orders are present in the system at the time the member submits the order, and the order priority based on the 24X rules.480 Accordingly, a 24X member and its associated persons do not participate in the execution of an order submitted to the 24X trading system.481 The third condition states that the order be executed by an exchange member who is unaffiliated with the member initiating the order. The Commission has stated that this condition is satisfied when automated exchange facilities, such as the 24X trading system, are used, as long as the design of these systems ensures that members do not possess any special or unique trading advantages in handling their orders after transmitting them to the exchange.482 24X represents that the design of the 24X trading system ensures that no member has any special or unique trading advantage in the handling of its orders after transmitting its orders to 24X.483 Based on 24X’s representation, the 24X trading system satisfies this condition. Fourth, in the case of a transaction effected for an account with respect to which the initiating member or an associated person thereof exercises investment discretion, neither the initiating member nor any associated person thereof may retain any compensation in connection with effecting the transaction, unless the person authorized to transact business for the account has expressly provided otherwise by written contract that refers to section 11(a) of the Exchange Act and Rule 11a2–2(T) thereunder.484 24X 480 See 24X 11(a) Letter, supra note 476, at 3. e.g., BATS Order, supra note 57, at 49505; DirectEdge Exchanges Order, supra note 84, at 13164. 482 See, e.g., BATS Order, supra note 57 at 49505; DirectEdge Exchanges Order, supra note 84, at 13164. In considering the operation of automated execution systems operated by an exchange, the Commission stated that, while there is not an independent executing exchange member, the execution of an order is automatic once it has been transmitted into the system. Because the design of these systems ensures that members do not possess any special or unique trading advantages in handling their orders after transmitting them to the exchange, the Commission has stated that executions obtained through these systems satisfy the independent execution condition of Rule 11a2– 2(T). See 1979 Release, supra note 477. 483 See 24X 11(a) Letter, supra note 476, at 3. 484 See, e.g., BATS Order, supra note 57, at 49505; DirectEdge Exchanges Order, supra note 84, at 13164. In addition, Rule 11a2–2(T)(d) requires a member or associated person authorized by written contract to retain compensation, in connection with effecting transactions for covered accounts over which such member or associated persons thereof exercises investment discretion, to furnish at least annually to the person authorized to transact business for the account a statement setting forth the total amount of compensation retained by the 481 See, PO 00000 Frm 00183 Fmt 4703 Sfmt 4703 members trading for covered accounts over which they exercise investment discretion must comply with this condition in order to rely on the rule’s exemption.485 IV. Exemption from Section 19(b) of the Exchange Act With Regard to FINRA Rules Incorporated by Reference 24X proposes to incorporate by reference certain FINRA rules as 24X rules.486 Thus, for those 24X rules, Exchange Members will comply with the 24X rule by complying with the FINRA rule referenced therein. In connection with its proposal to incorporate FINRA rules by reference, 24X requests, pursuant to Rule 240.0– 12,487 an exemption under Section 36 of the Exchange Act from the rule filing requirements of section 19(b) of the Exchange Act for changes to those 24X rules that are effected solely by virtue of a change to a cross-referenced FINRA rule.488 24X represents in its letter that, as a condition to the exemption, it will provide written notice to its Members whenever a proposed rule change to a FINRA rule that is incorporated by reference is proposed and whenever any such proposed change is approved by the Commission or otherwise becomes effective.489 member or any associated person thereof in connection with effecting transactions for the account during the period covered by the statement. See 17 CFR 240.11a2–2(T)(d). See also 1978 Release, supra note 479 (stating ‘‘[t]he contractual and disclosure requirements are designed to assure that accounts electing to permit transaction-related compensation do so only after deciding that such arrangements are suitable to their interests’’). 485 24X represents that it will advise its membership through the issuance of an Information Circular that those Members trading for covered accounts over which they exercise investment discretion must comply with this condition in order to rely on the rule’s exemption. See 24X 11(a) Letter, supra note 476, at 4. 486 See letter from David Sassoon, General Counsel, 24X, to Vanessa Countryman, Secretary, Commission, dated Feb. 6, 2024 (‘‘24X Exemption Request Letter’’). 24X proposes to incorporate by reference the following FINRA rules: (1) FINRA Rule 2210 (Communications with the Public), via 24X Rule 3.5 (Communications with the Public); (2) the definition of a research report in FINRA Rule 2241, via 24X Rule 3.13(b)(3); (3) the 12000 and 13000 Series of the FINRA Manual (Code of Arbitration Procedures for Customer Disputes and Code of Arbitration Procedures for Industry Disputes), via 24X Rules 9.1, 9.2, 9.4, 9.5 and 9.8; (4) FINRA Rule 2268 (Requirements When Using Pre-dispute Arbitration Agreements for Customer Accounts), via 24X Rule 9.3 (Pre-dispute Arbitration Agreements); (5) the 14000 Series of the FINRA Manual (Code of Mediation Procedures), via 24X Rule 9.7 (Mediation); and (6) FINRA Rule 5270 (Frontrunning of Block Transactions), via 24X Rule 12.14 (Frontrunning of Block Transactions). 487 See 17 CFR 240.0–12. 488 See 24X Exemption Request Letter, supra note 486. 489 See 24X Exemption Request Letter, supra note 486. 24X will provide such notice through a posting on the same website location where 24X posts its E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices Using its authority under section 36 of the Exchange Act,490 the Commission is hereby granting 24X’s request for an exemption, pursuant to section 36 of the Exchange Act, from the rule filing requirements of section 19(b) of the Exchange Act with respect to the rules that 24X proposes to incorporate by reference.491 This exemption is conditioned upon 24X providing written notice to its Members whenever FINRA proposes to change a rule that 24X has incorporated by reference. This exemption is appropriate, in the public interest and consistent with the protection of investors because it will promote more efficient use of Commission and SRO resources by avoiding duplicative rule filings based on simultaneous changes to identical rules of more than one SRO. V. Conclusion lotter on DSK11XQN23PROD with NOTICES1 It is ordered that the application of 24X for registration as a national securities exchange be, and it hereby is, granted. It is furthered ordered that operation of 24X is conditioned on the satisfaction of the requirements below: A. Participation in National Market System Plans. 24X must join the Consolidated Tape Association Plan, the Consolidated Quotation Plan, and the Nasdaq UTP Plan (or any successors thereto); the National Market System Plan Establishing Procedures Under Rule 605 of Regulation NMS; the Regulation NMS Plan to Address Extraordinary Market Volatility; the Plan for the Selection and Reservation of Securities Symbols; and the National Market System Plan Governing the Consolidated Audit Trail. B. Intermarket Surveillance Group. 24X must join the Intermarket Surveillance Group. C. Minor Rule Violation Plan. A Minor Rule Violation Plan filed by 24X own rule filings pursuant to Rule 19b-4 under the Exchange Act, within the required time frame. The website posting will include a link to the location on the FINRA website where FINRA’s proposed rule change is posted. See id. 490 15 U.S.C. 78mm. 491 The Commission previously exempted other exchanges from the requirement to file proposed rule changes under Section 19(b) of the Exchange Act. See, e.g., IEX Order, supra note 65; ISE Mercury Order, supra note 75; Securities Exchange Act Release No. 68341 (Dec. 3, 2012), 77 FR 73065, 73067 (Dec. 7, 2012) (File No. 10–207) (order granting the registration of Miami International Securities Exchange, LLC (‘‘MIAX Exchange’’)) (‘‘MIAX Order’’); Securities Exchange Act Release No. 79543 (Dec. 13, 2016), 81 FR 92901, 92903 (Dec. 20, 2016) (File No. 10–227) (order granting registration of MIAX PEARL, LLC) (‘‘MIAX PEARL Order’’), BATS Order, supra note 57; DirectEdge Exchanges Order, supra note 84. VerDate Sep<11>2014 18:02 Dec 05, 2024 Jkt 265001 under Rule 19d–1(c)(2) 492 must be declared effective by the Commission. D. Rule 17d–2 Agreement. An agreement pursuant to Rule 17d–2 493 that allocates regulatory responsibility for those matters specified above 494 must be declared effective by the Commission, or 24X must demonstrate that it independently has the ability to fulfill all of its regulatory obligations. E. Participation in Multi-Party Rule 17d–2 Plans. 24X must become a party to the multi-party Rule 17d–2 agreement concerning the surveillance, investigation, and enforcement of common insider trading rules and the agreement concerning certain Regulation NMS and Consolidated Audit Trail rules. F. RSA. 24X must finalize the provisions of the RSA with its regulatory services provider, as described above,495 that will specify the 24X and Commission rules for which the regulatory services provider will provide certain regulatory functions, or 24X must demonstrate that it independently has the ability to fulfill all of its regulatory obligations. It is further ordered, pursuant to section 36 of the Exchange Act,496 that 24X shall be exempted from the rule filing requirements of section 19(b) of the Exchange Act with respect to the FINRA rules that 24X proposes to incorporate by reference into its rules, subject to the conditions specified in this Order. By the Commission. Stephanie J. Fouse, Assistant Secretary. [FR Doc. 2024–28551 Filed 12–5–24; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–101793; File No. SR– NASDAQ–2024–071] Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Establish Fees for Its Expanded Co-Location Services December 2, 2024. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 492 17 CFR 240.19d–1(c)(2). CFR 240.17d–2. 494 See supra section III.C.3. (discussing Rule 17d–2 agreements). 495 See supra section III.C.2. (discussing 24X’s RSA with FINRA). 496 15 U.S.C. 78mm. 97119 (‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on November 18, 2024, The Nasdaq Stock Market LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change as described in Items I, II, and III, below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to a proposal to establish fees for its expanded colocation services, as described further below. The text of the proposed rule change is available on the Exchange’s website at https://listingcenter.nasdaq.com/ rulebook/nasdaq/rules, at the principal office of the Exchange, and at the Commission’s Public Reference Room. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange filed a proposal to expand its co-location services by offering new cabinet, power, and power distribution unit options in the Exchange’s expanded data center.3 As described in that filing, the Exchange’s current data center (‘‘NY11’’) in Carteret, NJ is undergoing an expansion (‘‘NY11–4’’) in response to demand for power and cabinets. The purpose of this proposed rule change is to establish fees for the expanded co-location services. Specifically, the Exchange proposes to establish (i) a monthly fee for Ultra High 493 17 PO 00000 Frm 00184 Fmt 4703 Sfmt 4703 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 See Securities Exchange Act Release No. 34– 101078 (September 5, 2024), 89 FR 77937 (September 24, 2024) (SR–NASDAQ–2024–054). 2 17 E:\FR\FM\06DEN1.SGM 06DEN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 89, Number 235 (Friday, December 6, 2024)]
[Notices]
[Pages 97092-97119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28551]

-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-101777; File No. 10-242]

In the Matter of the Application of 24X National Exchange LLC for
Registration as a National Securities Exchange; Findings, Opinion, and
Order of the Commission

November 27, 2024.

I. Introduction and Procedural History

On February 6, 2024, 24X National Exchange LLC (``24X'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') a Form 1 application under the Securities Exchange Act
of 1934 (``Exchange Act'') seeking registration as a national
securities exchange under section 6 of the Exchange Act.\1\ Notice of
the application was published for comment in the Federal Register on
March 4, 2024.\2\ The Commission received five comments on the Notice
\3\ and a letter responding to the comments from 24X.\4\ On May 31,
2024, the Commission instituted proceedings pursuant to section
19(a)(1)(B) of the Exchange Act \5\ to determine whether to grant or
deny 24X's application for registration as a national securities
exchange under section 6 of the Exchange Act (the ``OIP'').\6\ After
issuance of the OIP, the Commission received six comment letters \7\
and a letter responding to the comments from 24X.\8\ On August 21,
2024, 24X filed an amendment to its Form 1 application (``Amendment No.
1''),\9\ which was published for comment in the Federal Register on
September 3, 2024.\10\ On August 30, 2024, the Commission extended,
pursuant to section 19(a)(1)(B) of the Exchange

[[Page 97093]]

Act,\11\ the time period for granting or denying 24X's Form 1
application for an additional 90 days, until November 29, 2024.\12\
After issuance of Amendment No. 1, the Commission received three
comment letters \13\ and a letter responding to the comments from
24X.\14\ On October 23, 2024, 24X filed a second amendment to its Form
1 application (``Amendment No. 2''),\15\ which was published for
comment in the Federal Register on October 30, 2024.\16\ After issuance
of Amendment No. 2, the Commission received two comment letters \17\
and a letter responding to the comments from 24X.\18\
---------------------------------------------------------------------------

\1\ 15 U.S.C. 78f. The Form 1 is available on the Commission's
website at: https://www.sec.gov/rules-regulations/other-commission-orders-notices-information/24x-form-1.
\2\ See Securities Exchange Act Release No. 99614 (Feb. 27,
2024), 89 FR 15621 (Mar. 4, 2024) (``Notice'').
\3\ See letters from James J. Angel, Ph.D., CFP, CFA, Associate
Professor of Finance, Georgetown University, McDonough School of
Business, dated Apr. 5, 2024 (``Angel Letter I'') and dated May 13,
2024 (``Angel Letter II''); Stan Sater, Senior Legal Counsel,
Polygon.io, Inc., dated Apr. 25, 2024 (``Polygon Letter''); Andrew
Glover, University of Washington and Ed deHaan, Professor of
Accounting, Stanford University, dated Apr. 22, 2024 (``Glover and
deHaan Letter''); Eun Ah Choi, Senior Vice President, Nasdaq, Inc.,
dated Apr. 25, 2024 (``Nasdaq Letter''). The public comment file for
24X's Form 1 (File No. 10-242) is available on the Commission's
website at: https://www.sec.gov/comments/10-242/10-242.htm.
\4\ See letter from David Sassoon, General Counsel, 24X, dated
May 30, 2024 (``24X Letter'').
\5\ 15 U.S.C. 78s(a)(1)(B).
\6\ See Securities Exchange Act Release No. 100254 (May 31,
2024), 89 FR 48466 (June 6, 2024).
\7\ See letters from Richard Montone, JD/MBA student, Hofstra
University, dated June 26, 2024 (``Montone Letter''); Ellen Greene,
Managing Director, Equity and Options Market Structure, Securities
Industry and Financial Markets Association (``SIFMA''), dated June
27, 2024 (``SIFMA Letter''); Benjamin L. Schiffrin, Director of
Securities Policy, Better Markets, Inc., dated June 27, 2024
(``Better Markets Letter''); Chris Nagy, Research Director, and
Tyler Gellasch, President and Chief Executive Officer, Healthy
Markets Association, dated June 28, 2024 (``Healthy Markets
Letter''); Jeffrey M. Pasquerella, Chief Legal Officer, DriveWealth,
LLC., dated June 28, 2024 (``DriveWealth Letter''); Joanna Mallers,
Secretary, FIA Principal Traders Group, dated July 26, 2024 (``FIA
PTG Letter'').
\8\ See letter from David Sassoon, General Counsel, 24X, dated
Aug. 21, 2024 (``24X Letter II'').
\9\ Amendment No. 1 is available on the Commission's website at:
https://www.sec.gov/rules-regulations/other-commission-orders-notices-information/24x-form-1. In Amendment No. 1, 24X amended
Exhibits B, B-1, C, C-2, D, D-1, D-2, D-3, D-4, E, E-1 and N. For
purposes of this Order, references to Exhibits C, C-2, D, D-1, D-3,
and N will be to the amended Exhibits filed with Amendment No. 1.
See infra note 15 (describing references to Exhibits B, B-1, E and
E-1 for purposes of this Order).
\10\ See Securities Exchange Act Release No. 100839 (Aug. 27,
2024), 89 FR 71471 (Sept. 3, 2024).
\11\ 15 U.S.C. 78s(a)(1)(B).
\12\ See Securities Exchange Act Release No. 100884 (Aug. 30,
2024), 89 FR 72917 (Sept. 6, 2024).
\13\ See letters from Patrick Blonien, Instructor of Finance,
Carnegie Mellon University, and Alexander Ober, Ph.D. Candidate in
Finance, Rice University, undated (``Blonien and Ober Letter'');
John Ramsay, Chief Market Policy Officer, Investors' Exchange LLC
(`IEX''), dated Oct. 9, 2024 (``IEX Letter''); Joanna Mallers,
Secretary, FIA Principal Traders Group, dated Oct. 11, 2024 (``FIA
PTG Letter II'').
\14\ See letter from David Sassoon, General Counsel, 24X, dated
Nov. 1, 2024 (``24X Letter III'').
\15\ Amendment No. 2 is available on the Commission's website
at: https://www.sec.gov/rules-regulations/other-commission-orders-notices-information/24x-form-1. In Amendment No. 2, 24X amended
Exhibits B, B-1, E, and E-1. For purposes of this Order, references
to these listed Exhibits will be to the amended Exhibits filed with
Amendment No. 2.
\16\ See Securities Exchange Act Release No. 101431 (Oct. 24,
2024), 89 FR 86400 (Oct. 30, 2024).
\17\ See letters from Ellen Green, Managing Director, Equities
and Options Market Structure, SIFMA, dated Oct. 29, 2024 (``SIFMA
Letter II''); Adrian Griffiths, Head of Market Structure, MEMX LLC
(``MEMX Letter''), dated Oct. 29, 2024.
\18\ See letter from David Sassoon, General Counsel, 24X, dated
Nov. 18, 2024 (``24X Letter IV'').
---------------------------------------------------------------------------

The Commission has reviewed 24X's Form 1 application, as amended,
together with the comment letters received, in order to make a
determination whether to grant such registration. For the reasons set
forth below and based on the representations set forth in 24X's Form 1
application, as amended, this order grants 24X's Form 1 application, as
amended, for registration as a national securities exchange.

II. Statutory Standards

Pursuant to sections 6(b) and 19(a) of the Exchange Act,\19\ the
Commission shall by order grant an application for registration as a
national securities exchange if the Commission finds, among other
things, that the proposed exchange is so organized and has the capacity
to carry out the purposes of the Exchange Act and can comply, and can
enforce compliance by its members and persons associated with its
members, with the provisions of the Exchange Act, the rules and
regulations thereunder, and the rules of the exchange.\20\
---------------------------------------------------------------------------

\19\ 15 U.S.C. 78f(b) and 15 U.S.C. 78s(a), respectively.
\20\ 15 U.S.C. 78f(b)(1).
---------------------------------------------------------------------------

As discussed in greater detail below, the Commission finds that
24X's application, as amended, for registration as a national
securities exchange meets the requirements of the Exchange Act and the
rules and regulations thereunder. Further, the Commission finds that
the proposed rules of 24X are consistent with section 6 of the Exchange
Act in that, among other things, they are designed to: (1) assure fair
representation of the exchange's members in the selection of its
directors and administration of its affairs and provide that, among
other things, one or more directors shall be representative of
investors and not be associated with the exchange, or with a broker or
dealer; \21\ (2) prevent fraudulent and manipulative acts and
practices, promote just and equitable principles of trade, foster
cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, and remove impediments to and
perfect the mechanisms of a free and open market and a national market
system; \22\ (3) not permit unfair discrimination between customers,
issuers, or dealers; \23\ and (4) protect investors and the public
interest.\24\ The Commission also finds that the proposed rules of 24X
are consistent with section 11A of the Exchange Act.\25\ Finally, the
Commission finds that 24X's proposed rules do not impose any burden on
competition not necessary or appropriate in furtherance of the purposes
of the Exchange Act.\26\
---------------------------------------------------------------------------

\21\ See U.S.C. 78f(b)(3).
\22\ See U.S.C. 78f(b)(5).
\23\ See id.
\24\ See id.
\25\ See 15 U.S.C. 78k-1.
\26\ See 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

III. Discussion

A. Ownership and Governance of 24X

24X is a Delaware limited liability company,\27\ which is wholly-
owned by its sole member, 24X US Holdings LLC (``24X US''), which also
is a Delaware limited liability company.\28\ 24X US, in turn, is
wholly-owned by 24X Bermuda Holdings LLC (``24X Bermuda''), which is a
limited liability company formed under the laws of Bermuda.\29\ 24X US
will be managed by, and all decisions regarding 24X US will be made by,
24X Bermuda.\30\ Generally, the members of 24X Bermuda include holders
of ``Preferred Units,'' \31\ ``Common Units'' \32\ and ``Non-Voting
Units.'' \33\ Common Units and Preferred Units except Series Seed-2
Units have general voting power, and are defined as ``Voting Units.''
\34\ Each Voting Unit has one vote.\35\
---------------------------------------------------------------------------

\27\ See Certificate of Formation of 24X National Exchange LLC.
\28\ See Certificate of Formation of 24X US Holdings LLC.
\29\ See Certificate of Formation of 24X Bermuda Holdings LLC.
\30\ See Second Amended and Restated Limited Liability Company
Agreement of 24X US Holdings LLC (``24X US LLC Agreement''), Section
VI(a).
\31\ ``Preferred Units'' means ``Series A Units and the Series
Seed Units.'' See Third Amended and Restated Limited Liability
Company Agreement of 24X Bermuda LLC (``24X Bermuda LLC
Agreement''), Article 1, 1.45. See also id. at Article 1, 1.55 and
1.60 defining Series A Units and Series Seed Units.
\32\ ``Common Units'' means ``[u]nits of common membership
interests of the Company, or any other ownership interests of the
Company into which such units are reclassified, reconstituted or
exchanged.'' See id. at Article 1, 1.16.
\33\ ``Non-Voting Units'' means ``units of non-voting membership
interests of the Company, or any other ownership interests of the
Company into which such units are reclassified, reconstituted or
exchanged.'' See id. at Article 1, 1.38. A description of the
members of 24X Bermuda and their respective ownership levels is set
forth in Exhibit K. See also infra section III.B.1.
\34\ See 24X Bermuda LLC Agreement, Article 1, 1.75. See also
id. at Article 1, Section 1.64 defining Series Seed-2 Units.
\35\ See 24X Bermuda LLC Agreement, Article 1, 1.75.
---------------------------------------------------------------------------

1. 24X Board of Directors
24X proposed that its business and affairs as a national securities
exchange will be managed by a Board \36\ comprised of a minimum of
seven Directors \37\ (``24X Board'').\38\ The 24X Board will consist
of:
---------------------------------------------------------------------------

\36\ See Amended and Restated Limited Liability Company
Agreement of 24X National Exchange LLC (``24X LLC Agreement''),
Article I, (d).
\37\ See id., at Article I, (l).
\38\ See id., at Article VI, Section 6.1(b).
---------------------------------------------------------------------------

(A) one Director who is the Chief Executive Officer of the Exchange
and who shall be deemed to be an Industry Director; \39\
---------------------------------------------------------------------------

\39\ See id., at Article VI, Section 6.1(c)(i)(A). See also id.
at Article I, (w).
---------------------------------------------------------------------------

(B) Non-Industry Directors,\40\ including at least one (1)
Independent Director,\41\ the number of which shall equal or exceed the
sum of the number of Industry Directors and Member Representative
Directors; \42\
---------------------------------------------------------------------------

\40\ See id., at Article VI, Section 6.1(c)(i)(B)(1). See also
id. at Article I, (ee).
\41\ See id., at Article I, (v).
\42\ See id., at Article VI, Section 6.1(c)(i)(B)(1). See also
id. at Article I, (bb).

---------------------------------------------------------------------------

[[Page 97094]]

(C) Member Representative Directors, the number of which must be at
least twenty percent of the 24X Board; \43\ and
---------------------------------------------------------------------------

\43\ See id., at Article VI, Section 6.1(c)(1)(B)(2). If twenty
percent of the Directors then serving on the 24X Board is not a
whole number, such minimum number of Member Representative Directors
shall be rounded up to the next whole number. Id.
---------------------------------------------------------------------------

(D) at least one of the Non-Industry Directors shall be
representative of issuers and investors and not associated with an
Exchange Member, a broker, or a dealer.\44\
---------------------------------------------------------------------------

\44\ See id., at Article VI, Section 6.1(c)(1)(B)(3).
---------------------------------------------------------------------------

The first annual meeting of 24X will be held within 90 days after
the Commission grants 24X's exchange registration.\45\
---------------------------------------------------------------------------

\45\ See 24X LLC Agreement, Article III, Section 3.4(a).
---------------------------------------------------------------------------

In addition, 24X US will appoint the initial Nominating Committee
and Member Nominating Committee, consistent with each committee's
compositional requirements, to nominate candidates for election to the
24X Board.\46\ The Nominating Committee and Member Nominating
Committee, after completion of their respective duties for nominating
directors for election to the 24X Board for that year, will recommend
candidates to serve on the succeeding year's Nominating Committee or
Member Nominating Committee, as applicable.\47\ Exchange Members \48\
will have rights to nominate and elect additional candidates for the
Member Nominating Committee pursuant to a petition process.\49\
---------------------------------------------------------------------------

\46\ See 24X LLC Agreement, Article VI, Section 6.2(g)(ii).
\47\ Id.
\48\ ``Exchange Member'' means ``any registered broker or dealer
that has been admitted to membership in the national securities
exchange operated by the Company. An Exchange Member is not a member
of the Company by reason of being an Exchange Member. An Exchange
Member will have the status of a `member' of the Exchange as that
term is defined in Section 3(a)(3) of the Exchange Act.'' See 24X
LLC Agreement, Article I, (o).
\49\ See 24X LLC Agreement, Article VI, Section 6.1(d)(iii).
---------------------------------------------------------------------------

The Nominating Committee will nominate candidates for election to
the 24X Board.\50\ For the Member Representative Director positions,
the Member Nominating Committee, composed solely of Member
Representative Committee or Panel Members,\51\ shall consult with the
Nominating Committee and the Chairman of the 24X Board and solicit
comments from Exchange Members for the purpose of approving and
submitting names of candidates for election to the position of Member
Representative Director.\52\ If no candidates are nominated pursuant to
a petition process, then the initial nominees approved and submitted by
the Member Nominating Committee will be nominated as Member
Representative Directors by the Nominating Committee.\53\ If a petition
process produces additional candidates, then the candidates nominated
pursuant to the petition process, together with those nominated by the
Member Nominating Committee, will be presented to Exchange Members for
election to determine the final designees for any open Member
Representative Director positions.\54\ In the event of a contested
election, the candidates who receive the most votes will be selected as
the Member Representative Director designees by the Member Nominating
Committee.\55\
---------------------------------------------------------------------------

\50\ See 24X LLC Agreement, Article VI, Section 6.1(d)(i).
\51\ ``Member Representative Committee or Panel Members'' means
a member of any Committee or hearing panel who is an officer,
director, employee or agent of an Exchange Member that does not own,
directly or indirectly, any Units. See 24X LLC Agreement, Article I
(aa).
\52\ See 24X LLC Agreement, Article VI, Section 6.1(d)(ii).
\53\ See 24X LLC Agreement, Article VI, Section 6.1(d)(v).
\54\ Id.
\55\ See 24X LLC Agreement, Article VI, Section 6.1(d)(vi).
---------------------------------------------------------------------------

The 24X governance provisions are consistent with the Exchange Act.
In particular, the requirement that the number of Member Representative
Directors must be at least 20% of the 24X Board and the means by which
they will be chosen by Exchange Members provides for the fair
representation of members in the selection of directors and the
administration of 24X and therefore are consistent with section 6(b)(3)
of the Exchange Act.\56\ This requirement helps to ensure that members
of an exchange have a voice in an exchange's self-regulatory program,
and that an exchange is administered in a way that is equitable to all
those who trade on its market or through its facilities.\57\
---------------------------------------------------------------------------

\56\ 15 U.S.C. 78f(b)(3).
\57\ See, e.g., Securities Exchange Act Release Nos. 100539
(July 15, 2024), 89 FR 58848 (July 19, 2024) (File No. 10-240)
(order granting registration of MIAX Sapphire, LLC) (``Sapphire
Order''); 88806 (May 4, 2020), 85 FR 27451 (May 8, 2020) (File No.
10-237) (order granting registration of MEMX LLC (``MEMX
Exchange''))(``MEMX Order''); 85828 (May 10, 2019), 84 FR 21841 (May
15, 2019) (File No. 10-234) (order granting registration of Long
Term Stock Exchange, Inc. (``LTSE Exchange'') (``LTSE Order'');
79543 (Dec. 13, 2016), 81 FR 92901, 92903 (Dec. 20, 2016) (File No.
10-227) (order granting registration of MIAX PEARL, LLC) (``MIAX
PEARL Order''); 68341 (Dec. 3, 2012), 77 FR 73065, 73067 (Dec. 7,
2012) (File No. 10-207) (order granting the registration of Miami
International Securities Exchange, LLC (``MIAX Exchange'')) (``MIAX
Order''); 58375 (Aug. 18, 2008), 73 FR 49498, 49501 (Aug. 21, 2008)
(File No. 10-182) (order granting the registration of BATS Exchange,
Inc.) (``BATS Order''); 53128 (Jan. 13, 2006), 71 FR 3550, 3553
(Jan. 23, 2006) (File No. 10-131) (granting the exchange
registration of Nasdaq Stock Market, Inc.) (``Nasdaq Order'').
---------------------------------------------------------------------------

In addition, the requirements that the number of Non-Industry
Directors equal or exceed the sum of the number of Industry Directors
and Member Representative Directors, that at least one Non-Industry
Director shall also qualify as an Independent Director, and that at
least one of the Non-Industry Directors shall be representative of
issuers and investors and not associated with an Exchange Member, a
broker, or a dealer on the 24X Board satisfy the requirements in
section 6(b)(3) of the Exchange Act,\58\ which requires in part that
one or more directors be representative of issuers and investors and
not be associated with a member of the exchange, or with a broker or
dealer. The Commission previously has stated that the inclusion of
public, non-industry representatives on exchange oversight bodies is an
important mechanism to support an exchange's ability to protect the
public interest.\59\ Further, the presence of public, non-industry
representatives can help to ensure that no single group of market
participants has the ability to systematically disadvantage other
market participants through the exchange governance process. Public
directors can provide unbiased perspectives, which may enhance the
ability of the 24X Board to address issues in a non-discriminatory
fashion and foster the integrity of the Exchange.
---------------------------------------------------------------------------

\58\ 15 U.S.C. 78f(b)(3).
\59\ See, e.g., Sapphire Order, supra note 57, at 58850; MEMX
Order, supra note 57, at 27452; LTSE Order, supra note 57, at 21843,
MIAX PEARL Order, supra note 57, at 92903; MIAX Order, supra note
57, at 73067; BATS Order, supra note 57, at 49501; Nasdaq Order,
supra note 57, at 3553.
---------------------------------------------------------------------------

2. Exchange Committees
24X has proposed to establish several named committees of the 24X
Board, including an Appeals Committee \60\ and a Regulatory Oversight
Committee,\61\ as well as the Nominating Committee and Member
Nominating Committee, discussed above.\62\ The Appeals

[[Page 97095]]

Committee will consist of two Independent Directors and one Member
Representative Director.\63\ Each member of the Regulatory Oversight
Committee must be an Independent Director.\64\
---------------------------------------------------------------------------

\60\ See 24X LLC Agreement, Article VI, Section 6.2(f). The
Appeals Committee will preside over all appeals related to
disciplinary and adverse action determinations in accordance with
24X rules. Id.
\61\ See 24X LLC Agreement, Article VI, Section 6.2(h). The
Regulatory Oversight Committee will be responsible for overseeing
the adequacy and effectiveness of the Exchange's regulatory and
self-regulatory organization responsibilities, assessing the
Exchange's regulatory performance, and assisting the 24X Board and
Committees in reviewing the regulatory plan and the overall
effectiveness of the Exchange's regulatory functions. Id. See also
infra section III.B.3.
\62\ The 24X Board could also establish additional committees.
See 24X LLC Agreement, Article VI, Section 6.2(a). All committees of
the 24X Board will be subject to the control and supervision of the
24X Board. Id.
\63\ See 24X LLC Agreement, Article VI, Section 6.2(f).
\64\ See 24X LLC Agreement Article VI, Section 6.2(h)(v).
---------------------------------------------------------------------------

The named committees that 24X proposed, which are similar to the
named committees maintained by other exchanges,\65\ are designed to
help enable the Exchange to carry out its responsibilities under the
Exchange Act and are consistent with the Exchange Act, including
section 6(b)(1), which requires, in part, an exchange to be so
organized and have the capacity to carry out the purposes of the
Exchange Act.\66\
---------------------------------------------------------------------------

\65\ See, e.g., Securities Exchange Act Release No. 78101 (June
17, 2016), 81 FR 41142 (June 23, 2016) (File No. 10-222) (order
granting the registration of IEX (``IEX Order'')); Article IV,
Section 4.1 of the Eleventh Amended and Restated Bylaws of Cboe
Exchange, Inc.
\66\ 15 U.S.C. 78f(b)(1).
---------------------------------------------------------------------------

The Commission received one comment on Exhibit J of 24X's Form
1.\67\ Regarding the proposed 24X Board and committees, this commenter
stated that filling in the charts set forth in Exhibit J of 24X's Form
1 with ``TBD'' and ``TO BE PROVIDED'' ``does not provide the Commission
with sufficient information with which to assess compliance with the
law or Commission Rules.'' \68\ The commenter further stated that
``[t]he Exchange failed to provide the names, classifications, terms,
and types of businesses of the persons to fill the required roles. The
point of the chart is to have those boxes filled in. They are `to be
provided' now--not in the future. What would be the basis for the
Commission's approval?'' \69\ 24X stated that it has not commenced
operations and that ``[o]nce directors and committee members are
determined,'' 24X will update its Form 1 as required under Rule 6a-2
under the Exchange Act.\70\
---------------------------------------------------------------------------

\67\ See Healthy Markets Letter at 2-6.
\68\ Id. at 5.
\69\ Id. at 5.
\70\ See 24X Letter II at 16-17.
---------------------------------------------------------------------------

Exhibit J requires certain information for officers, governors,
members of all standing committees, or persons performing similar
functions, who ``presently hold or have held their offices or positions
during the previous year.'' \71\ Exhibit J of 24X's Form 1 application
indicates that Dmitri Galinov will be the ``Industry/Chief Executive
Officer'' of 24X. Exhibit J also lists Dmitri Galinov as the Head of
Equities for 24X, and other officers of 24X including David Sassoon as
General Counsel; Jeremy Sanchez as Chief Regulatory Officer; and Jason
Woerz as Chief Operating Officer.
---------------------------------------------------------------------------

\71\ For any individual that presently holds or has held their
offices or positions during the previous year, Exhibit J requires
their name, title, dates of commencement and termination of term of
office or position, and type of business in which each is primarily
engaged (e.g., floor broker, specialist, odd lot dealer, etc.).
---------------------------------------------------------------------------

24X has not yet commenced operations, and therefore, the nomination
and election processes to fill the rest of 24X's Board and committees,
as set forth in the 24X LLC Agreement, have not been initiated. Upon
approval of 24X's Form 1 application, however, 24X US, as the sole
owner of 24X, is required to elect only those persons to the 24X Board
and committees that meet the stated compositional requirements set
forth in the 24X LLC Agreement, and pursuant to Rule 6a-2 of the
Exchange Act, 24X must file an amendment to its Form 1 providing the
name, classification, term, and type of business of each person who
will be on the 24X Board and 24X committees within 10 days after 24X US
elects such persons to the 24X Board, or the Chairman of the 24X Board
appoints individuals to the various 24X committees.\72\ The information
provided by 24X in Exhibit J is consistent with the requirements of the
form and the Exchange Act.
---------------------------------------------------------------------------

\72\ See 17 CFR 240.6a-2. See also 24X LLC Agreement, Article
VI, Section 6.2(b)(i).
---------------------------------------------------------------------------

B. 24X Bermuda and Regulation of the Exchange

When 24X commences operations as a national securities exchange, it
will have all of the attendant regulatory obligations under the
Exchange Act. In particular, 24X will be responsible for the operation
and regulation of its trading system and the regulation of its members.
Certain provisions in both the 24X and 24X Bermuda governing documents
are designed to facilitate the ability of 24X to fulfill its regulatory
obligations and to help facilitate Commission oversight of 24X. The
discussion below summarizes some of these key provisions.\73\
---------------------------------------------------------------------------

\73\ Because 24X US is the sole member of 24X (see 24X LLC
Agreement), and 24X Bermuda is the sole member of 24X US (see 24X US
LLC Agreement) and thus indirectly wholly owns and controls 24X, for
purposes of this Order, the Commission bases its findings on
provisions in the 24X Bermuda LLC Agreement, as the ultimate owner
of 24X.
---------------------------------------------------------------------------

1. Ownership Structure; Ownership and Voting Limitations
As stated above, 24X will be owned indirectly by 24X Bermuda. The
24X Bermuda LLC Agreement includes restrictions on the ability to own
and vote units representing a fractional part of the interest in 24X
Bermuda (``Units'').\74\ These limitations are designed to prevent any
party to the 24X Bermuda LLC Agreement from exercising undue control
over the operation of the Exchange and to ensure that the Exchange and
the Commission are able to carry out their regulatory obligations under
the Exchange Act.\75\
---------------------------------------------------------------------------

\74\ ``Unit'' means ``(i) any Common Units (including Profits
Units), Non-Voting Units or Preferred Units purchased or otherwise
acquired by any Member; (ii) any equity securities issued or
issuable directly or indirectly with respect to any of the foregoing
Units by way of Unit distribution or split or in connection with a
combination of Units, recapitalization, merger, consolidation or
other reorganization; and (iii) any other units of any class or
series of ownership interests of the Company held by a Member,
including with respect to Convertible Securities or Options.'' See
24X Bermuda LLC Agreement, Article 1, 1.72
\75\ These provisions are consistent with ownership and voting
limits approved by the Commission for other SROs. See, e.g.,
Sapphire Order, MEMX Order, LTSE Order, MIAX PEARL Order, MIAX
Order, and BATS Order supra note 57; IEX Order, supra note 65, see
also Securities Exchange Release Nos. 6068 (Feb. 4, 2016) (File No.
10-221) (order granting exchange registration of ISE Mercury, LLC)
(``ISE Mercury Order''); 70050 (July 26, 2013), 78 FR 46622, 46624
(Aug. 1, 2013) (File No. 10-209) (order granting the exchange
registration of ISE Gemini, LLC) (``ISE Gemini Order''); 62158 (May
24, 2010), 75 FR 30082 (May 28, 2010) (CBOE-2008-88) (Cboe
demutualization order); 53963 (June 8, 2006), 71 FR 34660 (June 15,
2006) (SR-NSX-2006-03) (NSX demutualization order); 51149 (Feb. 8,
2005), 70 FR 7531 (Feb. 14, 2005) (SR-CHX-2004-26) (CHX
demutualization order); 49098 (Jan. 16, 2004), 69 FR 3974 (Jan. 27,
2004) (SR-Phlx-2003-73) (Phlx demutualization order).
---------------------------------------------------------------------------

In particular, for so long as 24X Bermuda shall control, directly
or indirectly, 24X, no Person,\76\ either alone or together with its
Related Persons,\77\ will be permitted to own,

[[Page 97096]]

directly or indirectly, of record or beneficially, more than 40% of the
then issued and outstanding Units.\78\ A more restrictive condition
will apply to Exchange Members, who either alone or together with their
Related Persons, will be prohibited from owning, directly or
indirectly, of record or beneficially, more than 20% of the then issued
and outstanding Units.\79\ If any party to the 24X Bermuda LLC
Agreement purports to transfer \80\ any Units in violation of these
ownership limits, 24X Bermuda will be required (to the extent funds are
legally available) to redeem the Units in excess of the applicable
ownership limit.\81\
---------------------------------------------------------------------------

\76\ ``Person'' means ``any individual, partnership, joint
venture, company, limited liability company, trust, or other
association or entity.'' See 24X Bermuda LLC Agreement, Article 1,
1.41.
\77\ ``Related Persons'' means ``[with] respect to any Person:
(a) any `affiliate' of such Person (as such term is defined in Rule
12b-2 under the Exchange Act); (b) any other Person with which such
first Person has any agreement, arrangement or understanding
(whether or not in writing) to act together for the purpose of
acquiring, voting, holding or disposing of Units; (c) in the case of
a Person that is a company, corporation or similar entity, any
executive officer (as defined under Rule 3b-7 under the Exchange
Act) or director of such Person and, in the case of a Person that is
a partnership or limited liability company, any general partner,
managing member or manager of such Person, as applicable; (d) in the
case of any Person that is a registered broker or dealer that has
been admitted to membership in the national securities exchange
known as 24X National Exchange, any Person that is associated with
such member (as determined using the definition of `person
associated with a member' as defined under Section 3(a)(21) of the
Exchange Act); (e) in the case of a Person that is a natural person
and member of 24X National Exchange, any broker or dealer that is
also a member of 24X National Exchange with which such Person is
associated; (f) in the case of a Person that is a natural person,
any relative or spouse of such Person, or any relative of such
spouse who has the same home as such Person or who is a manager or
officer of the Company, any subsidiary of the Company, or any of the
Company's parent companies; (g) in the case of a Person that is an
executive officer (as defined under Rule 3b-7 under the Exchange
Act) or a director of a company, corporation or similar entity, such
company, corporation or entity, as applicable; or (h) in the case of
a Person that is a general partner, managing member or manager of a
partnership or limited liability company, such partnership or
limited liability company, as applicable.'' See 24X Bermuda LLC
Agreement, Article 1, 1.49.
\78\ See 24X Bermuda LLC Agreement, Article 9, Section
9.2(a)(i). There are limited exceptions to these prohibitions. See
infra notes 84-85 and accompanying text.
\79\ See 24X Bermuda LLC Agreement, Article 9, Section
9.2(a)(ii). This restriction on ownership by Exchange Members cannot
be waived. See id. at Article 9, Section 9.2(b)(ii).
\80\ ``Transfer'' means ``any sale, transfer, conveyance,
exchange, pledge, gift, donation, assignment, or other disposition
of Units, whether voluntary or involuntary, and whether during the
lifetime of the Person involved or upon or after his death,
including, but not limited to, any disposition by operation of law,
by court order, by judicial process, or by foreclosure, levy, or
attachment. `Transfer' when used as a verb shall have a correlative
meaning. `Transferor' and `Transferee' mean a Person who makes or
receives a Transfer, respectively.'' See 24X Bermuda LLC Agreement,
Article 1, Section 1.71. See also id. at Article 9, Section
9.2(f)(i).
\81\ See 24X Bermuda LLC Agreement, Article 9, Section
9.2(f)(iii). The price of the redeemed Units or Unit Equivalents is
also prescribed in the 24X Bermuda LLC Agreement. See id. The number
of Units or Unit Equivalents to be redeemed is to be calculated
after taking into account that the redeemed Units or Unit
Equivalents will become treasury shares and will no longer be deemed
to be outstanding. See id. It is further provided in the 24X Bermuda
LLC Agreement that any Units or Unit Equivalents that have been
called for redemption may not be deemed outstanding Units or Unit
Equivalents if a sum sufficient to redeem the Units or Unit
Equivalents has been irrevocably deposited or set aside to pay the
redemption price. From and after the redemption date (unless 24X
Bermuda defaults in providing funds for the payment of the
redemption price), the redeemed Units or Unit Equivalents that have
been redeemed will become treasury shares, and all rights of the
holder of the redeemed Units or Unit Equivalents in 24X Bermuda
(except the right to receive from 24X Bermuda the redemption price
against delivery to 24X Bermuda of evidence of ownership of the
shares) will cease. See id. In addition, in the event that any
redemption has resulted in any person owning such number of Units or
Unit Equivalents that is in violation of the ownership limits, 24X
Bermuda will be required to redeem those Units or Unit Equivalents
pursuant to the limitation provisions. See id.
---------------------------------------------------------------------------

In addition, no Person, alone or together with its Related Persons,
may, directly, indirectly, or pursuant to any voting trust, agreement,
plan or other arrangement, vote or cause the voting of Units or give
any consent or proxy with respect to Units representing more than 20%
of the voting power of the then issued and outstanding Units (``Voting
Limitation'').\82\ Further, no Person, either alone or together with
its Related Persons, under circumstances that would result in the Units
that are subject to such agreement, plan, or other arrangement not
being voted on any matter or matters or any proxy relating thereto
being withheld, where the effect of such agreement, plan, or other
arrangement would be to enable any Person, either alone or together
with its Related Persons, to vote, possess the right to vote, or cause
the voting of Units that would represent more than 20% of such voting
power.\83\
---------------------------------------------------------------------------

\82\ See 24X Bermuda LLC Agreement, Article 9, Section
9.2(a)(iii).
\83\ See id.
---------------------------------------------------------------------------

The 24X Bermuda Board of Managers will be permitted to waive the
40% ownership limitation and the 20% Voting Limitation pursuant to a
resolution duly adopted by the 24X Bermuda Board of Managers if it
makes certain determinations.\84\ Any such waiver will not be effective
unless and until approved by the Commission.\85\
---------------------------------------------------------------------------

\84\ See 24X Bermuda LLC Agreement, Article 9, Section
9.2(b)(ii). See also supra note 79 (concerning the inability to
waive restrictions for Exchange Members). The required
determinations are that such waiver will not impair the ability of
the Exchange to carry out its functions and responsibilities as an
``exchange'' under the Exchange Act and the rules and regulations
promulgated thereunder; that such waiver is otherwise in the best
interests of 24X Bermuda, its members, and the Exchange; that such
waiver will not impair the ability of the Commission to enforce the
Exchange Act and the rules and regulations promulgated thereunder;
and that such Person and its Related Persons are not subject to any
applicable ``statutory disqualification'' within the meaning of
Section 3(a)(39) of the Exchange Act. See id. See also 24X US LLC
Agreement, Section III(b)(ii)(B). These provisions are consistent
with ownership and voting limits approved by the Commission for
other SROs. See, e.g., Sapphire Order, MEMX Order, LTSE Order, MIAX
PEARL Order, MIAX Order, and BATS Order, supra note 57, IEX Order,
supra note 65, ISE Mercury Order and ISE Gemini Order, supra note
75; and Securities Exchange Act Release No. 61698 (Mar. 12, 2010),
75 FR 13151 (Mar. 18, 2010) (File Nos. 10-194 and 10-196) (order
approving DirectEdge exchanges) (``DirectEdge Exchanges Order'').
\85\ See 24X Bermuda LLC Agreement, Article 9, Section
9.2(b)(ii).
---------------------------------------------------------------------------

Any Person that proposes to own Units in excess of the 40%
ownership limitation, or to vote or grant any proxies or consents with
respect to Units constituting more than 20% of the voting power of the
then outstanding Units, will be required to deliver written notice to
the 24X Bermuda Board of Managers of its intention.\86\ The notice must
be delivered to the 24X Bermuda Board of Managers not less than 45 days
(or any shorter period to which the Board of Managers expressly
consents) before the proposed ownership of such Units or the proposed
vote.\87\
---------------------------------------------------------------------------

\86\ See 24X Bermuda LLC Agreement, Article 9, Section 9.2(d).
\87\ See id.
---------------------------------------------------------------------------

The 24X Bermuda LLC Agreement also contains provisions that are
designed to further safeguard the ownership limitation and Voting
Limitation described above or are otherwise related to direct and
indirect changes in control. Specifically, any Person that, either
alone or together with its Related Persons beneficially owns, directly
or indirectly (whether by acquisition or a change in the number of
Units outstanding), of record or beneficially 5% or more of the then
outstanding Units will be required to notify the 24X Bermuda Board of
Managers in writing of such ownership.\88\ Thereafter, such persons
will be required to update 24X Bermuda of any increase or decrease of
1% or more in their previously reported ownership percentage.\89\
---------------------------------------------------------------------------

\88\ See 24X Bermuda LLC Agreement, Article 9, Section
9.2(e)(i). The notice will require the Person's full legal name; the
Person's title or status and the date on which such title or status
was acquired; the Person's and its Related Person's) approximate
ownership interest in 24X Bermuda; and whether the person has power,
directly or indirectly, to direct the management or policies of 24X
Bermuda, whether through ownership of securities, by contract or
otherwise. See id.
\89\ See 24X Bermuda LLC Agreement, Article 9, Section
9.2(e)(ii). Changes of less than 1% must also be reported to 24X
Bermuda if they result in such Person crossing a 20% or 40%
ownership threshold. See id. In addition, the Exchange's rules also
impose limits on affiliation between the Exchange and a Member of
the Exchange. See 24X Rule 2.10 (No Affiliation between Exchange and
any Member).
---------------------------------------------------------------------------

The 24X LLC Agreement does not include change of control provisions
that are similar to those in the 24X Bermuda LLC Agreement and the 24X
US LLC Agreement because the 24X LLC Agreement instead explicitly
identifies its sole owner as 24X US, and in turn the 24X US LLC
Agreement explicitly identifies 24X Bermuda as its sole owner.\90\
Thus, any changes in the ownership of 24X would require the 24X LLC
Agreement to be amended. Any amendment to the 24X LLC Agreement,
including to ownership of

[[Page 97097]]

24X, would constitute a proposed rule change under section 19(b) of the
Exchange Act \91\ and Rule 19b-4 \92\ thereunder that will be required
to be filed with, or filed with and approved by, the Commission.\93\
Moreover, pursuant to the 24X LLC Agreement, any transfer of limited
liability company interests of 24X will be subject to prior approval by
the Commission pursuant to the rule filing procedure under section 19
of the Exchange Act.\94\
---------------------------------------------------------------------------

\90\ See 24X LLC Agreement (introductory text) and Second
Amended and Restated Limited Liability Company Agreement of 24X US
(introductory text).
\91\ 15 U.S.C. 78s(b).
\92\ 17 CFR 240.19b-4.
\93\ See 24X LLC Agreement, Article X, Section 10.3.
\94\ See 24X LLC Agreement, Article V, Section 5.2(a).
---------------------------------------------------------------------------

Although 24X Bermuda is not directly responsible for regulation,
its activities with respect to the operation of 24X must be consistent
with, and must not interfere with, the self-regulatory obligations of
24X.\95\ As described above, the provisions applicable to changes in
control of 24X Bermuda (through changes in ownership of Units in 24X
Bermuda) as well as the Voting Limitation imposed on owners of 24X
Bermuda who also are Exchange Members, are designed to help prevent any
owner of 24X Bermuda from exercising undue influence or control, either
direct or indirect, over the operation of the Exchange and to help
ensure that the Exchange retains a sufficient degree of independence to
effectively carry out its regulatory obligations under the Exchange
Act.
---------------------------------------------------------------------------

\95\ See, e.g., Sapphire Order, supra note 57, IEX Order, supra
note 65.
---------------------------------------------------------------------------

In addition, these limitations are designed to address the
conflicts of interests that might result from a member of a national
securities exchange owning interests in the exchange. As the Commission
has stated in the past, an exchange member's ownership interest in an
entity that controls an exchange could become so large as to cast doubt
on whether the exchange may fairly and objectively exercise its self-
regulatory responsibilities with respect to such member.\96\ An
exchange member that is a controlling shareholder of an exchange could
seek to exercise that controlling influence by directing the exchange
to refrain from, or the exchange may hesitate to, diligently monitor
and conduct surveillance of the member's conduct or diligently enforce
the exchange's rules and the federal securities laws with respect to
conduct by the member that violates such provisions. As such, these
requirements are designed to minimize the potential that a person or
entity can improperly interfere with or restrict the ability of the
Exchange to effectively carry out its regulatory oversight
responsibilities under the Exchange Act.
---------------------------------------------------------------------------

\96\ See, e.g., Sapphire Order, MEMX Order, LTSE Order, MIAX
PEARL Order, MIAX Order, and BATS Order, supra note 57, ISE Mercury
Order, supra note 75, IEX Order, supra note 65; and DirectEdge
Exchanges Order, supra note 84.
---------------------------------------------------------------------------

The Commission received one comment addressing the governance
structure proposed by 24X.\97\ This commenter stated 24X's ownership
and voting structure ``facially violate Commission Rules and the law.''
\98\ According to this commenter ``[24X] asserts that if the Commission
approves its application, it has internal company documents that
promise (to itself) that it will come into compliance with the law and
Commission Rules within nine months of the approval. It is unclear
whether or how this promise for future compliance would be enforceable,
much less by whom.'' \99\
---------------------------------------------------------------------------

\97\ See Healthy Markets Letter at 2-6.
\98\ Id. at 2.
\99\ Id.
---------------------------------------------------------------------------

In response to the commenter's concern about 24X's ownership and
voting structure, 24X explained that ``although the Exchange Act does
not set forth any specific ownership and voting limitations applicable
to exchanges, the Commission typically has expected exchanges to
include in their governing documents certain limitations on ownership
and voting. 24X's application includes each of these typical
limitations on ownership and voting.'' \100\ 24X stated that ``[t]he
only exception to such limitations is a request for a very brief,
temporary exemption from certain ownership and voting limitation[s].''
\101\
---------------------------------------------------------------------------

\100\ 24X Letter II at 16.
\101\ Id. See also infra section III.B.1.a.
---------------------------------------------------------------------------

24X's and 24X Bermuda's proposed governance provisions are
consistent with the Exchange Act, including section 6(b)(1), which
requires, in part, an exchange to be so organized and have the capacity
to carry out the purposes of the Exchange Act.\102\ In particular,
these requirements are designed to minimize the potential that a person
could improperly interfere with or restrict the ability of the
Commission or 24X to effectively carry out their regulatory oversight
responsibilities under the Exchange Act.
---------------------------------------------------------------------------

\102\ 15 U.S.C. 78f(b)(1).
---------------------------------------------------------------------------

24X has proposed ownership and voting limitations in Article 9,
Section 9.2 of the 24X Bermuda LLC Agreement that are consistent with
the ownership and voting limitations in place across all other national
securities exchanges,\103\ and thus are designed to enable 24X to meet
its obligations under the Exchange Act.
---------------------------------------------------------------------------

\103\ See supra note 75.
---------------------------------------------------------------------------

a. Temporary Exemption
24X proposes that Dmitri Galinov and his Related Persons \104\ have
a temporary exemption from the ownership limitation set forth in
Section 9.2 of the 24X Bermuda LLC Agreement until nine (9) months
after the Commission grants 24X's application for registration as a
national securities exchange or until 24X commences operation, if later
than nine (9) months.\105\ Further, 24X proposes in the 24X Bermuda LLC
Agreement that if Dmitri Galinov and his Related Persons do not comply
with the ownership limitation in Section 9.2 of the 24X Bermuda LLC
Agreement within the applicable time period, then 24X Bermuda shall
redeem all of the Units the holding of which by Dmitri Galinov and/or
his Related Persons results in a violation of Section 9.2 for a price
per Unit, as applicable, equal to the lesser of (a) book value or (b)
Fair Market Value of such Units.\106\ 24X also proposes that Dmitri
Galinov and his Related Persons shall have a temporary exemption from
the Voting Limitation set forth in Section 9.2 of the 24X Bermuda LLC
Agreement until nine (9) months after the Commission grants 24X's
application for registration as a national securities exchange or until
24X commences operation, if later than nine (9) months, but only with
respect to any vote regarding any merger, consolidation or dissolution
of the 24X Bermuda or any sale of all or substantially all of the
assets of the 24X Bermuda.\107\
---------------------------------------------------------------------------

\104\ See infra notes 108-110 and accompanying text for a
description of the Related Persons of Dmitri Galinov.
\105\ See 24X Bermuda LLC Agreement, Article 9, Section
9.2(g)(i). While 24X Bermuda LLC Agreement, Article 9, Section
9.2(a)(ii) sets forth an ownership restriction that applies to 24X
Exchange Members, this provision does not apply to Mr. Galinov; the
ownership limitation that does apply to Dmitri Galinov and his
Related Persons is set forth in 24X Bermuda LLC Agreement, Article
9, Section 9.2(a)(i).
\106\ See 24X Bermuda LLC Agreement, Article 9, Section
9.2(g)(i).
\107\ See 24X Bermuda LLC Agreement, Article 9, Section
9.2(g)(ii).
---------------------------------------------------------------------------

Exhibit K of 24X's Form 1 application provides that ``Dmitri
Galinov owns 7,000,000 Common Units and 179,215 Seed-3 Preferred Units,
for a total of 7,179,215 Units for all classes outstanding,'' \108\ and
that ``Dmitri Galinov is a Related Person of KNG CAPITAL LLC, Tanya
Nazarov-Kenneally, and Vladimir Nazarov. KNG CAPITAL LLC owns 320,616
Seed-1 Preferred Units, which represents 1.85% of all classes of
outstanding Units.

[[Page 97098]]

Tanya Nazarov-Kenneally owns 1794 Seed-3 Preferred Units, which
represents 0.01% of all classes of outstanding Units. Vladimir Nazarov
owns 7176 Seed-3 Preferred Units, which represents 0.04% of all classes
of outstanding Units.'' \109\ Accordingly, Exhibit K states that ``on
an aggregate basis, Dmitri Galinov, together with his Related Persons,
owns 43.29% of the Units of all classes of outstanding Units.'' \110\
---------------------------------------------------------------------------

\108\ See Exhibit K, footnote 2.
\109\ Id.
\110\ Id.
---------------------------------------------------------------------------

In a letter, 24X stated that the temporary exemption would provide
it with a brief period to bring its ownership and voting structure in
line with the ownership and voting restrictions upon SEC approval.\111\
24X also stated that the Commission had granted ``prior exchange
applications with such limited exceptions to the ownership and voting
restrictions.'' \112\
---------------------------------------------------------------------------

\111\ See 24X Letter II at 16.
\112\ Id. 24X cited Securities Exchange Act Release No. 42455
(Feb. 24, 2000) as support for its statement.
---------------------------------------------------------------------------

The Commission finds that the limited temporary exemption in
Article 9, Section 9.2(g) of the 24X Bermuda LLC Agreement from the
ownership limitation and Voting Limitation set forth in Article 9,
Section 9.2 of the 24X Bermuda LLC Agreement for Dmitri Galinov and his
Related Persons is consistent with the Exchange Act. As discussed
above, the ownership limitation and Voting limitation are designed to
prevent any party from exercising undue control over the operation of
the 24X and ensure that 24X is able to carry out its regulatory
obligations under the Exchange Act. The exemption is designed to
prevent Dmitri Galinov and his Related Persons from exercising undue
control over 24X and minimize the possibility that 24X's ability to
carry out its self-regulatory responsibilities under the Exchange Act
could be impaired. Specifically, the exemption is for a defined period
of time that is based on 24X's approval as a national securities
exchange or commencement of its exchange operations. Thus, the
exemption is designed to ensure that once 24X is a self-regulatory
organization (``SRO''), the exemption will terminate within a specified
period of time. In addition, the exemption from the Voting Limitation
applies only with respect to the limited situations involving any
merger, consolidation or dissolution of the 24X Bermuda or any sale of
all or substantially all of the assets of the 24X Bermuda that will not
permit undue control over 24X or impair the regulatory responsibilities
of 24X. The temporary exemption is designed to afford Dmitri Galinov
and his Related Persons the ability to protect the investment they have
already made in the establishment of 24X that is over the current
ownership limitation, represented by 24X to be 3.29% of the Units of
all outstanding Units.\113\
---------------------------------------------------------------------------

\113\ See Exhibit K, footnote 2. The Commission has approved
other temporary exemptions from the ownership or voting limitations
included in the governance documents of owners of a national
securities exchange. See Securities Exchange Act Release No. 49067
(Jan. 13, 2004), 69 FR 2761 (Jan. 20, 2004) (order granting approval
to a proposed rule change by the Boston Stock Exchange Inc. Relating
to the LLC Operating Agreement of the Proposed New Exchange Facility
to be Operated by the Boston Options Exchange Group LLC)(approval of
an exemption from a voting limitation for a period of 10 years for
an owner of the BOX facility). See also Securities Exchange Act
Release No. 42455 (Feb. 24, 2000), 65 FR 11388 (Mar. 2, 2000) (File
No. 10-127) (order granting registration of the International
Securities Exchange LLC)(approval of an exemption from an ownership
limitation for period of 10 years for certain founders of the
exchange).
---------------------------------------------------------------------------

As part of its Form 1 application, 24X also has included in the 24X
Bermuda LLC Agreement a representation that 24X Bermuda will redeem all
of the Units the holding of which by Dmitri Galinov and/or his Related
Persons results in a violation of the applicable 40% ownership
limitation for a price per Unit, as applicable, equal to the lesser of
(a) book value or (b) Fair Market Value of such Units. The 24X Bermuda
LLC Agreement further provides that such redemption shall occur nine
(9) months after the date of approval by the Commission of 24X's Form 1
application or until commencement of the operation of 24X, if later
than nine (9) months. Thus, in response to the commenter, 24X has
established a mechanism to ensure compliance with the ownership
limitation and Voting Limitation set forth in the 24X Bermuda LLC
Agreement upon expiration of the stated time period. 24X Bermuda's
Managers and officers must comply with the federal securities laws and
the rules and regulations promulgated thereunder and are deemed to
agree to cooperate with the Commission and 24X in respect of the
Commission's oversight responsibilities regarding 24X and the self-
regulatory functions and responsibilities of 24X.\114\ Therefore,
should there be a need to pursue enforcement of the redemption
requirement required of 24X Bermuda, 24X Bermuda's Managers and
officers must comply with the obligation and must cooperate with those
efforts by the Commission and 24X to ensure that such redemption
occurs. Finally, should 24X Bermuda not redeem the Units owned by
Dmitri Galinov and his Related Persons within the specified time
period, the Commission may take action against 24X under section 19(h)
of the Exchange Act.\115\
---------------------------------------------------------------------------

\114\ See 24X Bermuda LLC Agreement, Article 3, Section 3.4(b).
\115\ See infra Section III.B.2.
---------------------------------------------------------------------------

2. Regulatory Independence and Oversight
Although 24X Bermuda will not itself carry out regulatory
functions, its activities with respect to the operation of 24X must be
consistent with, and must not interfere with, 24X's self-regulatory
obligations. In this regard, 24X and 24X Bermuda propose to adopt
certain provisions in their respective governing documents that are
designed to help maintain the independence of the regulatory functions
of 24X. These proposed provisions are substantially similar to those
included in the governing documents of other exchanges that recently
have been granted registration.\116\ Specifically:
---------------------------------------------------------------------------

\116\ See, e.g., Sapphire Order, MEMX Order, LTSE Order, MIAX
Order, supra note 57, IEX Order, supra note 65; and DirectEdge
Exchanges Order, supra note 84.
---------------------------------------------------------------------------

the managers, officers, employees, and agents of 24X
Bermuda must give due regard to the preservation of the independence of
the self-regulatory function of 24X and to its obligations to investors
and the general public and must not take actions which would interfere
with the effectuation of decisions by the Exchange Board relating to
its regulatory functions (including disciplinary matters) or which
would interfere with 24X's ability to carry out its responsibilities
under the Exchange Act.\117\
---------------------------------------------------------------------------

\117\ See 24X Bermuda LLC Agreement, Article 3, Section 3.4(a).
Similarly, Article VI, Section 6.1(a)(ii) of the 24X LLC Agreement
requires the Exchange Board and each Director, when managing the
business and affairs of 24X, to consider the requirements of Section
6(b) of the Exchange Act and requires each Director, officer, or
employee of 24X to comply with the federal securities laws and
regulations thereunder and cooperate with the Commission, and 24X
pursuant to its regulatory authority. Article VI, Section
6.1(a)(iii) of the 24X LLC Agreement also requires the Exchange
Board, when evaluating any proposal to take into account all factors
that the Exchange Board deems relevant, including, without
limitation, to the extent deemed relevant: the potential impact on
the integrity, continuity and stability of the national securities
exchange operated by 24X and the other operations of 24X, on the
ability to prevent fraudulent and manipulative acts and practices,
and on investors and the public, and whether such proposal would
promote just and equitable principles of trade, foster cooperation
and coordination with Persons engaged in regulating, clearing,
settling, processing information with respect to and facilitating
transactions in securities or assist in the removal of impediments
to or perfection of the mechanisms for a free and open market and a
national market system.

---------------------------------------------------------------------------

[[Page 97099]]

24X Bermuda must comply with the federal securities laws
and the rules and regulations promulgated thereunder, and must
cooperate with the Commission, 24X, Financial Industry Regulatory
Authority, Inc. (``FINRA''), and any other SRO of which any routing
broker for 24X is a member, pursuant to and to the extent of their
respective regulatory authority.\118\ In addition, 24X Bermuda's
managers, officers, employees, and agents must comply with the federal
securities laws and the rules and regulations promulgated thereunder
and are deemed to agree to cooperate with: (1) the Commission and 24X
in respect of the Commission's oversight responsibilities regarding 24X
and the self-regulatory functions and responsibilities of 24X; and (2)
FINRA, any other SROs of which any routing broker of 24X is a member,
and any routing broker of 24X in respect of FINRA's and any such other
SRO's oversight responsibilities regarding any routing broker of 24X,
as applicable.\119\ 24X Bermuda shall take reasonable steps necessary
to cause its managers, officers, employees and agents to so
cooperate.\120\
---------------------------------------------------------------------------

\118\ See 24X Bermuda LLC Agreement, Article 3, Section 3.4(b).
\119\ See id.
\120\ See id.
---------------------------------------------------------------------------

24X Bermuda, and its managers, officers, employees, and
agents must submit to the jurisdiction of the U.S. federal courts, the
Commission, and 24X, for purposes of any suit, action or proceeding
pursuant to the U.S. federal securities laws, and the rules and
regulations thereunder, arising out of, or relating to, 24X
activities.\121\
---------------------------------------------------------------------------

\121\ See 24X Bermuda LLC Agreement, Article 3, Section 3.4(c).
---------------------------------------------------------------------------

All books and records of 24X reflecting confidential
information pertaining to the self-regulatory function of 24X
(including but not limited to disciplinary matters, trading data,
trading practices, and audit information) must be retained in
confidence by 24X and its personnel, including its Directors, officers,
employees, and agents, and will not be used by 24X for any non-
regulatory purposes and shall not be made available to any person
(including, without limitation, any Exchange Member) other than
personnel of the SEC, and those personnel of 24X, members of
Committees, members of the 24X Board, hearing officers and other agents
of 24X to the extent necessary or appropriate to properly discharge the
self-regulatory responsibilities of 24X.\122\ Similar provisions apply
to 24X Bermuda and its personnel, managers, officers, employees, and
agents.\123\
---------------------------------------------------------------------------

\122\ See 24X LLC Agreement, Article IX, Section 9.2.
\123\ The 24X Bermuda LLC Agreement provides that all books and
records of 24X reflecting confidential information pertaining to the
self-regulatory function of 24X that come into the possession of 24X
Bermuda, and the information contained in those books and records,
will be subject to confidentiality restrictions and will not be used
for any non-regulatory purposes. See 24X Bermuda LLC Agreement,
Article 12, Section 12.2(c). The 24X and 24X Bermuda governing
documents acknowledge that requirements to keep such information
confidential shall not limit or impede the rights of the Commission
to access and examine such information or limit the ability of
Directors, Officers, employees, or agents of 24X to disclose such
information to the Commission, or the manager, officers, employees
or agents of 24X Bermuda to disclose such information to the
Commission or 24X. See 24X LLC Agreement, Article IX, Section 9.2
and 24X Bermuda LLC Agreement, Article 12, Section 12.2(c).
---------------------------------------------------------------------------

The books and records of 24X and 24X Bermuda must be
maintained in the United States \124\ and, to the extent they are
related to the operation or administration of 24X, 24X Bermuda's books
and records will be subject at all times to inspection and copying by
the Commission and 24X.\125\
---------------------------------------------------------------------------

\124\ See 24X LLC Agreement, Article IX, Section 9.2; and 24X
Bermuda LLC Agreement, Article 12, Section 12.2(b).
\125\ See 24X Bermuda LLC Agreement, Article 12, Section
12.2(b).
---------------------------------------------------------------------------

Furthermore, to the extent 24X Bermuda's corporate,
financial and similar records, reports and documents, including all
financial statements, books and records and minutes of proceedings, are
related to the activities of 24X, such corporate, financial and similar
records, reports and documents, including all financial statements,
books and records and minutes of proceedings, as well as premises,
managers, officers, employees and agents of 24X Bermuda shall be deemed
to be the corporate, financial and similar records, reports and
documents, including all financial statements, books and records and
minutes of proceedings, as well as premises, managers, officers,
employees or agents, as applicable, of 24X for the purposes of, and
subject to oversight pursuant to, the Exchange Act.\126\
---------------------------------------------------------------------------

\126\ See 24X Bermuda LLC Agreement, Article 12, Section
12.2(a).
---------------------------------------------------------------------------

24X Bermuda will take reasonable steps necessary to cause
its manager, officers, employees, and agents, prior to accepting a
position as a manager, officer, employee or agent (as applicable) with
24X Bermuda to consent in writing to the applicability of provisions
regarding non-interference, confidentiality, books and records,
compliance and cooperation, jurisdiction, and regulatory obligations,
with respect to their activities related to 24X.\127\
---------------------------------------------------------------------------

\127\ See 24X Bermuda LLC Agreement, Article 3, Section 3.2.
---------------------------------------------------------------------------

The 24X Bermuda LLC Agreement requires that, so long as
24X Bermuda controls 24X, any changes to that document must be
submitted to the Exchange Board for approval, and, if such change is
required to be filed with the Commission pursuant to section 19(b) of
the Exchange Act and the rules and regulations thereunder, such change
shall not be effective until filed with and effective by operation of
law, or filed with, and approved by, the Commission.\128\
---------------------------------------------------------------------------

\128\ See 24X Bermuda LLC Agreement, Article 12, Section
12.10(b).
---------------------------------------------------------------------------

The provisions discussed in this section, which are designed to
help ensure the independence of 24X's regulatory function and
facilitate the ability of 24X to carry out its regulatory
responsibilities under, and operate in a manner consistent with, the
Exchange Act, are appropriate and consistent with the requirements of
the Exchange Act, particularly with Section 6(b)(1), which requires, in
part, an exchange to be so organized and have the capacity to carry out
the purposes of the Exchange Act.\129\
---------------------------------------------------------------------------

\129\ 15 U.S.C. 78f(b)(1).
---------------------------------------------------------------------------

Further, section 19(h)(1) of the Exchange Act \130\ provides the
Commission with the authority ``to suspend for a period not exceeding
twelve months or revoke the registration of [an SRO], or to censure or
impose limitations upon the activities, functions, and operations of
[an SRO], if [the Commission] finds, on the record after notice and
opportunity for hearing, that [the SRO] has violated or is unable to
comply with any provision of the Exchange Act, the rules or regulations
thereunder, or its own rules or without reasonable justification or
excuse has failed to enforce compliance . . . '' with any such
provision by its members (including associated persons thereof). If the
Commission were to find, or become aware of, through staff review and
inspection or otherwise, facts indicating any violations of the
Exchange Act, including without limitation sections 6(b)(1) and
19(g)(1),\131\ these matters could provide the basis for a disciplinary
proceeding under section 19(h)(1) of the Exchange Act.\132\
---------------------------------------------------------------------------

\130\ See 15 U.S.C. 78s(h)(1).
\131\ 15 U.S.C. 78f(b)(1); 15 U.S.C. 78s(g)(1).
\132\ 15 U.S.C. 78s(h)(1).
---------------------------------------------------------------------------

Even in the absence of the governance provisions described above,
under section 20(a) of the Exchange Act,\133\ any person with a
controlling interest in 24X would be jointly and severally

[[Page 97100]]

liable with and to the same extent that 24X is liable under any
provision of the Exchange Act, unless the controlling person acted in
good faith and did not directly or indirectly induce the act or acts
constituting the violation or cause of action. In addition, section
20(e) of the Exchange Act \134\ creates aiding and abetting liability
for any person who knowingly provides substantial assistance to another
person in violation of any provision of the Exchange Act or rule
thereunder. Further, section 21C of the Exchange Act \135\ authorizes
the Commission to enter a cease-and-desist order against any person who
has been ``a cause of'' a violation of any provision of the Exchange
Act through an act or omission that the person knew or should have
known would contribute to the violation. These provisions are
applicable to 24X Bermuda.
---------------------------------------------------------------------------

\133\ 15 U.S.C. 78t(a).
\134\ 15 U.S.C. 78t(e).
\135\ 15 U.S.C. 78u-3.
---------------------------------------------------------------------------

3. Regulatory Oversight Committee
The regulatory operations of 24X will be monitored by the
Regulatory Oversight Committee of the Exchange Board. As mentioned
above, the Regulatory Oversight Committee will consist only of
Independent Directors.\136\ The Regulatory Oversight Committee will be
responsible for overseeing the adequacy and effectiveness of 24X's
regulatory and SRO responsibilities, assessing 24X's regulatory
performance, and assisting the 24X Board (and committees of the 24X
Board) in reviewing 24X's regulatory plan and the overall effectiveness
of 24X's regulatory functions.\137\
---------------------------------------------------------------------------

\136\ See supra note 61 and accompanying text.
\137\ See 24X LLC Agreement, Article VI, Section 6.2(h)(i).
---------------------------------------------------------------------------

Further, the Chief Regulatory Officer (``CRO'') of 24X will have
general supervision over 24X's regulatory operations, including
responsibility for overseeing 24X's surveillance, examination, and
enforcement functions and for administering any regulatory services
agreements with another SRO to which 24X is a party.\138\ The
Regulatory Oversight Committee, in consultation with the Chief
Executive Officer of 24X, will be responsible for establishing the
goals, assessing the performance, and fixing the compensation of the
CRO and for recommending personnel actions involving the CRO and senior
regulatory personnel.\139\
---------------------------------------------------------------------------

\138\ See 24X LLC Agreement, Article VIII, Section 8.5.
\139\ See 24X LLC Agreement, Article VI, Section 6.2(h)(iii). To
the extent that the Chief Executive Officer of 24X has any indirect
supervisory responsibility for the role or function of the CRO,
including implementation of the budget for the regulatory function
or regulatory personnel matters, the Regulatory Oversight Committee
shall take all steps reasonably necessary to ensure that the Chief
Executive Officer does not compromise the regulatory autonomy and
independence of the Chief Regulatory Officer or the regulatory
function. See 24X LLC Agreement, Article VI, Section 6.2(h)(4).
---------------------------------------------------------------------------

C. Regulatory Funding and Services

As a prerequisite for the Commission's granting of an exchange's
application for registration, an exchange must be organized and have
the capacity to carry out the purposes of the Exchange Act.\140\
Specifically, an exchange must be able to enforce compliance by its
members, and persons associated with its members, with the federal
securities laws and rules thereunder and the rules of the
exchange.\141\ The discussion below summarizes how 24X proposes to
conduct and structure its regulatory operations.
---------------------------------------------------------------------------

\140\ See 15 U.S.C. 78f(b)(1).
\141\ See id. See also Section 19(g) of the Exchange Act, 15
U.S.C. 78s(g).
---------------------------------------------------------------------------

1. Regulatory Funding
To help ensure that 24X has and will continue to have adequate
funding to be able to meet its responsibilities under the Exchange Act,
24X stated that, if the Commission approves 24X's application for
registration as a national securities exchange, 24X Bermuda, through
24X US, will allocate sufficient assets to 24X to enable the Exchange's
operation.\142\ Specifically, 24X stated that 24X Bermuda shall make
prior to the launch of the Exchange a cash contribution of $5 million
(in addition to any previously provided in-kind contributions, such as
legal, regulatory, and infrastructure-related services) to 24X US. In
turn, 24X US will make a corresponding cash contribution of $5 million
(in addition to any previously provided in-kind contributions, such as
legal, regulatory, and infrastructure-related services) to the
Exchange. The Exchange represented that such cash and in-kind
contributions will be adequate to operate the Exchange, including the
regulation of the Exchange.\143\
---------------------------------------------------------------------------

\142\ See Form 1, Exhibit I.
\143\ See id.
---------------------------------------------------------------------------

24X also represented that there will be a written agreement among
24X Bermuda, 24X US and 24X that requires 24X Bermuda and 24X US to
provide adequate funding for the Exchange's operations, including the
regulation of the Exchange.\144\ Further, 24X stated that the agreement
will provide that 24X will receive all fees, including regulatory fees
and trading fees payable by the Exchange's members as well as any funds
received from any market data fees and tape revenue. In addition, the
agreement will provide that 24X Bermuda and 24X US will reimburse 24X
for its costs and expenses to the extent that 24X's assets are
insufficient to meet its costs and expenses.
---------------------------------------------------------------------------

\144\ See id.
---------------------------------------------------------------------------

Further, the 24X LLC Agreement requires that any Regulatory Funds
received by 24X shall not be used for non-regulatory purposes or
distributed, advanced or allocated to any Company Member,\145\ but
rather, shall be applied to fund regulatory operations of the 24X
(including surveillance and enforcement activities), or, as the case
may be, shall be used to pay restitution and disgorgement of funds
intended for customers.\146\ Excess non-regulatory funds, as solely
determined by the 24X, will be remitted to 24X US in accordance with
the 24X LLC Agreement.\147\
---------------------------------------------------------------------------

\145\ Under the 24X LLC Agreement, the Company Member is 24X US.
\146\ See 24X LLC Agreement, Article XI, Section 11.4(b).
``Regulatory Funds'' in the 24X LLC Agreement means ``fees, fines or
penalties derived from the regulatory operations of the Company.
``Regulatory Funds'' shall not be construed to include revenues
derived from listing fees, market data revenues, transaction
revenues, or any other aspect of the commercial operations of the
Company, even if a portion of such revenues are used to pay costs
associated with the regulatory operations of the Company.'' Article
I, ll of the 24X LLC Agreement. This definition is consistent with
the rules of other SROs. See, e.g., LTSE Bylaws, Article I(bb);
Amended and Restated By-Laws of MIAX Exchange, Article 1(ll); By-
Laws of NASDAQ PHLX LLC, Article I(ii); By-Laws of NASDAQ BX, Inc.,
Article I(ii). See also 24X Rule 15.2.
\147\ See Form 1, Exhibit I.
---------------------------------------------------------------------------

One commenter stated that 24X did not provide audited financial
statements.\148\ 24X stated that it believed that it complied with the
requirements of Exhibit I regarding financial statements because while
24X has been formed it has not commenced operations and does not have
audited financial statements for any fiscal year.\149\ 24X also stated
that the approach it has taken with regard to Exhibit I is consistent
with prior exchange applications that have been approved by the SEC
based on the same provided information.\150\
---------------------------------------------------------------------------

\148\ See Healthy Markets Letter at 2.
\149\ See 24X Letter II at 16.
\150\ Id.
---------------------------------------------------------------------------

The 24X Form 1 provides the Commission with information necessary
to make a finding that 24X will operate consistent with its obligations
under the Exchange Act.\151\ 24X has filed financial information about
how it intends to fund its operations and has filed financial
information in Exhibit D about its owners, 24X Bermuda and 24X US.

[[Page 97101]]

Exhibit I of Form 1 requires that the applicant submit ``[f]or the
latest fiscal year of the applicant, audited financial statements which
are prepared in accordance with, or in the case of a foreign applicant,
reconciled with, United States generally accepted accounting
principles, and are covered by a report prepared by an independent
public accountant.'' \152\ 24X has not provided audited financial
statements nor the report prepared by an independent public accountant
because, as it stated in the Form 1, the ``Exchange has been formed but
has not commenced operations and does not yet have audited financial
statements for any fiscal year.'' \153\ As stated in the instructions
for Form 1, ``Form 1 is designed to enable the Commission to determine
whether an exchange applying for registration is in compliance with the
provisions of sections 6 \154\ and 19 \155\ of the Exchange Act.''
\156\ In this case, the applicant exchange has no past operations or
activity. Moreover, the Commission has approved prior Form 1
applications with similar circumstances.\157\ In addition, pursuant to
Rule 6a-2(b)(1) of the Exchange Act,\158\ as a registered national
securities exchange, 24X must file an amendment to its Form 1
application. Exhibits D and I must be filed on or before June 30 of
each year and include audited financial information as of the end of
the latest fiscal year of the Exchange; thus, the Commission and the
public will be informed of 24X's financial activity going forward.\159\
---------------------------------------------------------------------------

\151\ 15 U.S.C. 78f(b)(1).
\152\ 17 CFR 249.1.
\153\ See Form 1, Exhibit I.
\154\ 15 U.S.C. 78f.
\155\ 15 U.S.C. 78s.
\156\ 17 CFR 249.1.
\157\ See e.g., Exhibit I for MIAX Sapphire, LLC Form 1
Application and Exhibits, available at https://www.sec.gov/files/rules/other/2023/exhibit-i.pdf (stating that applicant MIAX
Sapphire, LLC has been formed but has not commenced operations and
does not yet have audited financial statements for any fiscal year);
Exhibit I for MEMX LLC Form 1 Application and Exhibits, available at
https://www.sec.gov/files/rules/other/2019/memx/exhibit-i.pdf
(stating that applicant MEMX LLC has been formed but has not
commenced operations and so does not yet have audited financial
statements for any fiscal year).
\158\ 17 CFR 240.6a-2(b)(1).
\159\ Form 1 filings are made available to the public. See
Securities Exchange Act Release No. 97182 (Mar. 22, 2023), 88 FR
23920, 23928 (Apr. 18, 2023).
---------------------------------------------------------------------------

2. Regulatory Contract With FINRA
Although 24X will be an SRO with all of the attendant regulatory
obligations under the Exchange Act, it has represented to the
Commission that it intends to enter into a regulatory services
agreement (``RSA'') with FINRA, under which FINRA as a regulatory
services provider will perform certain regulatory functions on 24X's
behalf.\160\ Specifically, 24X expects that such services will include
the performance of investigation, disciplinary, and hearing
services.\161\ Notwithstanding the RSA, 24X will retain legal
responsibility for the regulation of its members and its market and the
performance of FINRA as its regulatory services provider. Because 24X
anticipates entering into an RSA with FINRA, it has not made provisions
to fulfill the regulatory services that will be undertaken by FINRA.
Accordingly, the Commission is conditioning the operation of 24X on a
final RSA that specifies the services that will be provided to 24X.
---------------------------------------------------------------------------

\160\ See Form 1, Exhibit L. See also 24X Rules 9.8 and 13.7.
\161\ See Form 1, Exhibit L.
---------------------------------------------------------------------------

It is consistent with the Exchange Act for 24X to contract with
FINRA to perform certain examination, enforcement, and disciplinary
functions.\162\ These functions are fundamental elements of a
regulatory program and constitute core self-regulatory functions. FINRA
has the expertise and experience to perform these functions for
24X.\163\ However, 24X, unless relieved by the Commission of its
responsibility, bears the self-regulatory responsibilities and primary
liability for self-regulatory failures, not the SRO retained to perform
regulatory functions on 24X's behalf.\164\ In performing these
regulatory functions, however, FINRA may nonetheless bear liability for
causing or aiding and abetting the failure of 24X to perform its
regulatory functions.\165\ Accordingly, although FINRA will not act on
its own behalf under its SRO responsibilities in carrying out these
regulatory services for 24X, FINRA may have secondary liability if, for
example, the Commission finds that the contracted functions are being
performed so inadequately as to cause a violation of the federal
securities laws or rules thereunder by 24X.\166\
---------------------------------------------------------------------------

\162\ For example, LTSE, MEMX Exchange, IEX, MIAX Exchange, MIAX
PEARL, LLC, Nasdaq MRX, LLC, Cboe EDGA Exchange, Inc., Cboe EDGX
Exchange, Inc. (``Cboe EDGX''), and Cboe BZX Exchange, Inc. (``Cboe
BZX'') have entered into RSAs with FINRA.
\163\ See, e.g., MEMX Order, supra note 57; LTSE Order, supra
note 57; IEX Order, supra note 65; DirectEdge Exchanges Order, supra
note 84; Nasdaq Order, supra note 57. The Commission is not
approving the RSA or any of its specific terms.
\164\ See 15 U.S.C. 78s(g)(1).
\165\ For example, if failings by FINRA have the effect of
leaving 24X in violation of any aspect of 24X's self-regulatory
obligations, 24X would bear direct liability for the violation,
while FINRA may bear liability for causing or aiding and abetting
the violation. See, e.g., MEMX Order, supra note 57; LTSE Order,
supra note 57; IEX Order, supra note 65; Nasdaq Order, supra note
57; BATS Order, supra note 57; DirectEdge Exchanges Order, supra
note 84.
\166\ See, e.g., MEMX Order, supra note 57; LTSE Order, supra
note 57; IEX Order, supra note 65; and Nasdaq Order, supra note 57.
---------------------------------------------------------------------------

3. Rule 17d-2 Agreements
Section 19(g)(1) of the Exchange Act,\167\ among other things,
requires every SRO registered as either a national securities exchange
or national securities association to comply with the Exchange Act, the
rules and regulations thereunder, and the SRO's own rules, and, absent
reasonable justification or excuse, enforce compliance by its members
and persons associated with its members.\168\ Rule 17d-2 of the
Exchange Act permits SROs to propose joint plans to allocate regulatory
responsibilities amongst themselves for their common rules with respect
to their common members.\169\ These agreements, which must be filed
with and declared effective by the Commission, generally cover areas
where each SRO's rules substantively overlap, including such regulatory
functions as personnel registration and sales practices. For example,
the Commission declared effective a plan to allocate regulatory
responsibilities between FINRA and LTSE pursuant to which FINRA assumes
examination and enforcement responsibility for broker-dealers that are
members of both FINRA and LTSE with respect to the rules of LTSE that
are substantially similar to the applicable rules of FINRA, as well as
certain specified provisions of the federal securities laws.\170\
---------------------------------------------------------------------------

\167\ 15 U.S.C. 78s(g)(1).
\168\ 15 U.S.C. 78q(d) and 15 U.S.C. 78s(g)(2), respectively.
\169\ See 15 U.S.C. 78q(d)(1) and 17 CFR 240.17d-2. Section
17(d)(1) of the Exchange Act allows the Commission to relieve an SRO
of certain responsibilities with respect to members of the SRO who
are also members of another SRO (``common members''). Specifically,
Section 17(d)(1) allows the Commission to relieve an SRO of its
responsibilities to: (i) receive regulatory reports from such
members; (ii) examine such members for compliance with the Exchange
Act and the rules and regulations thereunder, and the rules of the
SRO; or (iii) carry out other specified regulatory responsibilities
with respect to such members.
\170\ See Securities Exchange Act Release No. 86587 (Aug. 7,
2019), 84 FR 39883 (Aug. 12, 2019) (File No. 4-747). See also, e.g.,
Securities Exchange Act Release Nos. 83696 (July 24, 2018), 83 FR
35682 (July 27, 2018) (FINRA/MIAX Exchange/MIAX PEARL); 77321 (Mar.
8, 2016), 81 FR 13434 (Mar. 14, 2016) (File No. 4-697) (FINRA/ISE
Mercury, LLC); 73641 (Nov. 19, 2014), 79 FR 70230 (Nov. 25, 2014)
(File No. 4-678) (FINRA/MIAX Exchange); 70053 (July 26, 2013), 78 FR
46656 (Aug. 1, 2013) (File No. 4-663) (FINRA/Topaz Exchange n/k/a
ISE Gemini, LLC); 59218 (Jan. 8, 2009), 74 FR 2143 (Jan. 14, 2009)
(File No. 4-575) (FINRA/Boston Stock Exchange, Inc. (``BSE''));
58818 (Oct. 20, 2008), 73 FR 63752 (Oct. 27, 2008) (File No. 4-569)
(FINRA/BATS Exchange, Inc.); 55755 (May 14, 2007), 72 FR 28087 (May
18, 2007) (File No. 4-536) (National Association of Securities
Dealers, Inc. (``NASD'') n/k/a FINRA) and Chicago Board of Options
Exchange, Inc. concerning the CBOE Stock Exchange, LLC); 55367 (Feb.
27, 2007), 72 FR 9983 (Mar. 6, 2007) (File No. 4-529) (NASD/
International Securities Exchange, LLC); 54136 (July 12, 2006), 71
FR 40759 (July 18, 2006) (File No. 4-517) (NASD/Nasdaq).

---------------------------------------------------------------------------

[[Page 97102]]

A Rule 17d-2 plan that is declared effective by the Commission
relieves the specified SRO of those regulatory responsibilities
allocated by the plan to another SRO.\171\ 24X has represented to the
Commission that it will join all applicable plans, including Rule 17d-2
plans for the allocation of regulatory responsibilities.\172\ Similar
to other exchanges, the Commission understands from 24X that it will
enter into a bilateral Rule 17d-2 agreement covering common members of
24X and FINRA. This agreement will allocate to FINRA regulatory
responsibility, with respect to common members, for specified
regulatory and enforcement matters arising out of specified common
rules and specified provisions of the Exchange Act and the rules and
regulations thereunder. In addition, the Commission is conditioning
operation of 24X as an exchange on 24X first joining the applicable
multilateral Rule 17d-2 plans, including the multi-party Rule 17d-2
plan for the allocation of regulatory responsibilities with respect to
certain Regulation NMS and Consolidated Audit Trail Rules and the
multi-party Rule 17d-2 plan for the surveillance, investigation, and
enforcement of common insider trading rules.\173\
---------------------------------------------------------------------------

\171\ See supra notes 169-170 and accompanying text.
\172\ See Form 1, Exhibit E.
\173\ See Securities Exchange Act Release Nos. 88366 (Mar. 12,
2020), 85 FR 15238 (Mar. 17, 2020) (File No. 4-618) (order approving
and declaring effective a proposed amendment to the multi-party Rule
17d-2 plan relating to covered Regulation NMS and Consolidated Audit
Trail Rules); 86542 (Aug. 1, 2019), 84 FR 38679 (Aug. 7, 2019) (File
No. 4-566) (notice of filing and order approving and declaring
effective an amendment to the multi-party Rule 17d-2 plan relating
to the surveillance, investigation, and enforcement of insider
trading rules).
---------------------------------------------------------------------------

Because 24X anticipates entering into these Rule 17d-2 agreements,
it has not made provision to fulfill the regulatory obligations that
will be undertaken by FINRA and other SROs under these agreements with
respect to common members.\174\ Accordingly, the Commission is
conditioning the operation of 24X on approval by the Commission of a
Rule 17d-2 agreement that allocates the above specified matters to
FINRA, and the approval of an amendment to the existing multi-party
Rule 17d-2 plans specified above to add 24X as a party.
---------------------------------------------------------------------------

\174\ For common members, the regulatory obligations will be
covered by the Rule 17d-2 agreements, and for 24X Exchange Members
that are not also members of FINRA, the regulatory obligations will
be covered by the RSA.
---------------------------------------------------------------------------

D. 24X Trading System

1. Overview of Trading System ¹⁷⁵
---------------------------------------------------------------------------

\175\ A more detailed description of the manner of operation of
24X's trading system can be found in Form 1, Exhibit E. The proposed
rulebook for 24X can be found in Exhibit B to 24X's Form 1, and the
governing documents for 24X, 24X US and 24X Bermuda can be found in
Form 1, Exhibit A and Exhibit C. A complete set of forms concerning
membership and access can be found in Form 1, Exhibit F.
---------------------------------------------------------------------------

24X proposes to operate a fully automated electronic trading
platform \176\ for the trading of listed NMS stocks \177\ pursuant to
unlisted trading privileges (``UTP'') \178\ 23 hours per day,\179\ five
(5) days per week, subject to certain trading pauses, as provided in
the 24X rules.\180\ Similar to other U.S. national securities
exchanges, 24X will operate three different trading sessions that span
from 4 a.m. to 7 p.m. on each U.S. Business Day: \181\ (1) a ``Core
Market Session'' between 9:30 a.m. and 4 p.m.,\182\ (2) a ``Pre-Market
Session'' between 4 a.m. and 9:30 a.m.,\183\ and (3) a ``Post-Market
Session'' between 4 p.m. and 7 p.m.\184\ 24X also will operate a fourth
trading session, the 24X Market Session,\185\ which, as discussed in
greater detail below,\186\ will operate between 8 p.m. and 4 a.m.
Sunday, Monday, Tuesday, Wednesday, and Thursday nights that precede a
U.S. Business Day.\187\
---------------------------------------------------------------------------

\176\ See Form 1, Exhibit E. See also 24X Rule 11.9(b).
\177\ See 17 CFR 242.600(b)(55) (defining ``NMS Stock'').
\178\ See 24X Rule 14.1.
\179\ As discussed below, 24X will pause trading from 7 p.m.
until 8 p.m. Monday, Tuesday, Wednesday, and Thursday nights. See
24X Rule 11.15(c)(2). Unless otherwise noted, all times referred to
in this order are Eastern Time (``ET'').
\180\ See, e.g., 24X Rule 11.15(c); Form 1, Exhibit E-1 at 4.
See also infra notes 329-338 (discussing 24X's trading pauses).
\181\ See 24X Rule 1.5(ll) defining ``U.S. Business Day.'' In
addition, 24X proposes, among others, the following terms: ``24X
Trading Day'' (see 24X Rule (1.5(b)); ``Exchange Trading Hours other
than the 24X Market Session'' (see 24X Rule 1.5(r)); ``Extended
Hours Trading'' (see 24X Rule 1.5(s)); ``Regular Trading Hours''
(see 24X Rule 1.5(dd)). 24X Rule 1.5(s) defines ``Extended Hours
Trading'' as ``trading during the Pre-Market Session, Post-Market
Session and 24X Market Session.''
\182\ See 24X Rule 1.5(l) defining the ``Core Market Session.''
\183\ See 24X Rule 1.5(z) defining the ``Pre-Market Session.''
See, e.g., NYSE Arca, Inc., Cboe EDGX Exchange, Inc., The Nasdaq
Stock Market LLC.
\184\ See 24X Rule 1.5(y) defining the ``Post-Market Session.''
See, also e.g., NYSE Arca, Inc., NYSE American LLC, NYSE Chicago,
Inc., NYSE National, Inc., Cboe BZX Exchange, Inc., Cboe BYX
Exchange, Inc., Cboe EDGA Exchange, Inc., Cboe EDGX Exchange, Inc.,
The Nasdaq Stock Market LLC. These national securities exchanges
operate post-market sessions until 8 p.m. As discussed above, 24X
will end its Post-Market Session at 7 p.m.
\185\ See 24X Rule 1.5(c) defining the ``24X Market Session.''
\186\ See infra section III.D.2.
\187\ See 24X Rule 1.5(c). 24X initially proposed to operate the
24X Market Session on weekends and holidays as well as overnight. In
Amendment No, 2, 24X revised the 24X Rule 1.5(c) definition of 24X
Market Session to include only overnight hours, as discussed above,
and to remove its proposal to provide trading on weekends and
holidays.
---------------------------------------------------------------------------

24X will not maintain a physical trading floor.\188\ One commenter
stated that the Form 1 was unclear about 24X's physical locations.\189\
24X responded that it ``clearly'' provided information on the Form 1
execution page as well as Exhibit E.\190\ Specifically, 24X stated that
its primary address is in Connecticut and that the Exchange will
operate out of a third-party data center in New Jersey, with a
secondary site located in Illinois.\191\ Further, 24X stated that 24X
personnel will operate out of its New York office as well as its
Connecticut office.\192\
---------------------------------------------------------------------------

\188\ See Form 1, Exhibit E-1 at 2.
\189\ See Healthy Markets Letter at 6.
\190\ See 24X Letter II at 17.
\191\ Id. See also Form 1, Execution Page (listing Stamford,
Connecticut as its primary address); Form 1, Exhibit E (describing
the locations of its Systems and personnel); Form 1, Exhibit E-1
(describing the locations of the trading Systems).
\192\ See 24X Letter II at 17; see also Form 1, Exhibit E.
---------------------------------------------------------------------------

The Form 1 and exhibits provide information about the location of
24X Systems and personnel. The Form 1 Execution Page states that 24X's
primary address is in Stamford, Connecticut. Exhibit E states that 24X
will operate out of data centers in New Jersey and Illinois and that
its personnel will operate out of offices in Connecticut and New York.
Exhibit E-1 states that 24X's trading platform will be located in the
Equinix data center in New Jersey (NY4) and that its secondary back-up
data center will be located in Chicago, Illinois (CH4).\193\ 24X has
provided information about the location of its platform and its
personnel.
---------------------------------------------------------------------------

\193\ See also Form 1, Exhibit E.
---------------------------------------------------------------------------

Only broker-dealer members of 24X and entities that enter into
market access arrangements with members (collectively ``Users'' \194\)
will have access to the 24X System,\195\ and only Authorized Traders
\196\ may obtain access to the 24X System on behalf of Users.\197\
Liquidity will be derived from quotes and orders to buy and sell

[[Page 97103]]

submitted to 24X electronically by Exchange Members.\198\ 24X proposes
to operate a fully automated electronic limit order book with a
continuous matching function \199\ and orders resting on the book would
be ranked and executed in price/time priority.\200\
---------------------------------------------------------------------------

\194\ See 24X Rule 1.5(mm) defining ``User.''
\195\ To obtain authorized access to the 24X System, each User
must enter into a User Agreement with 24X. See 24X Rule 11.3(a). See
also 24X Rule 1.5(hh) defining ``System.''
\196\ See 24X Rule 1.5(g).
\197\ See 24X Rule 11.4.
\198\ 24X proposes to have one class of membership open to
registered broker-dealers. See 24X Rule 2.3 (stating, in part, that
``any registered broker or dealer that is and remains a member of a
national securities association registered under Section 15A(a) of
the Exchange Act or a member of another national securities exchange
registered under Section 6(a) of the Exchange Act or any person
associated with such a registered broker or dealer shall be eligible
to be, and to remain, a Member'').
\199\ See Form 1, Exhibit E-1 at 2.
\200\ See 24X Rule 11.8(a) and 24X Rule 11.9(a)(4).
---------------------------------------------------------------------------

24X proposes certain rules to govern trading during Exchange
Trading Hours other than the 24X Market Session,\201\ while other rules
and requirements would apply exclusively to trading during the 24X
Market Session.\202\ For example, 24X proposes to accept Market
Orders,\203\ Limit Orders \204\ and Pegged Orders \205\ with various
modifiers and time-in-force instructions, although subject to certain
limitations \206\ during various trading sessions.\207\ Specifically,
Market Orders would be accepted only during the Core Market Session;
Pegged Orders would be accepted only during the Pre-Market Session, the
Core Market Session, and the Post-Market Session; and Limit Orders
would be accepted during all sessions.\208\ Further, pursuant to 24X
Rule 11.16, Market Orders and Pegged Orders are not eligible for
execution during the 24X Market Session. Orders may be submitted in
round lots, odd lots, or mixed lots.\209\ 24X will permit orders to be
entered, canceled, modified, executed on or routed away from 24X during
the Pre-Market Session, the Core Market Session, and the Post-Market
Session.\210\ 24X would also permit orders to be entered, canceled,
modified or executed on the Exchange during the 24X Market
Session.\211\
---------------------------------------------------------------------------

\201\ See 24X Rule 11.1(a).
\202\ See 24X Rule 11.16(a) (stating, ``[e]xcept as explicitly
set forth herein, each of the rules and requirements set forth in
this Chapter 11 applies to trading activity during the 24X Market
Session.''). The 24X rules make specific provisions for the 24X
Market Session with respect to, for example, matters such as order
types permitted. See, e.g., Exhibit E-1 to 24X's Form 1; 24X Rule
11.7.
\203\ 24X defines the term ``Market Order,'' in part, as ``[a]n
order to buy or sell a stated amount of a security that is to be
executed at the NBBO or better when the order reaches the
Exchange.'' See 24X Rule 11.7(a).
\204\ 24X defines the term ``Limit Order'' as ``[a]n order to
buy or sell a stated amount of a security at a specified price or
better. A marketable Limit Order is a Limit Order to buy (sell) at
or above (below) the lowest (highest) Protected Offer (Protected
Bid) for the security.'' See 24X Rule 11.7(b).
\205\ 24X defines the term ``Pegged Order,'' in part, as ``[a]
User may indicate to peg an order to a reference price, including an
instruction of Primary Peg (the NBB for buy orders and NBO for sell
orders, with or without offsets) or an instruction of Midpoint Peg
(the midpoint of the NBBO). The System's calculation of the NBBO
would not take into account any Pegged Orders that are resting on
the 24X Book. A new timestamp is created for a Pegged Order each
time it is automatically re-priced.'' See 24X Rule 11.7(c).
\206\ See 24X Rule 11.7 (describing, among other things, order
types eligible for the various 24X trading sessions). See also Form
1, Exhibit E-1 at 7.
\207\ See, e.g., 24X Rule 11.7; Form 1, Exhibit B.
\208\ See 24X Rule 11.7(a)(4) for Market Orders, 24X Rule
11.7(c)(4) for Pegged Orders, and 24X Rule 11.7(b) for Limit Orders.
\209\ See 24X Rule 11.6(q). See also Form 1, Exhibit E-1 at 5.
\210\ See 24X Rule 11.1(b).
\211\ See 24X Rule 11.1(c) (providing, in part, that ``to the
extent that other Trading Centers are open during the 24X Market
Session, orders may be routed away to such Trading Centers during
the 24X Market Session'').
---------------------------------------------------------------------------

With respect to the price of executions that would occur on the
Exchange,\212\ the 24X rules are designed to comply with short sale
price test restriction under Rule 201 of Regulation SHO,\213\ the order
protection requirements of Rule 611 of Regulation NMS,\214\ and the
National Market System Plan to Address Extraordinary Market Volatility
pursuant to Rule 608 of Regulation NMS (``LULD Plan'').\215\ 24X will
permit the use of self-trade protection (``STP'') modifiers to prevent
an incoming order from executing against a resting order originating
from the same market participant.\216\
---------------------------------------------------------------------------

\212\ As discussed above, certain rules govern trading during
Exchange Trading Hours other than the 24X Market Session, while
other rules and requirements apply exclusively to trading during the
24X Market Session. See supra note 201 and accompanying text. See
also 24X Rule 11.1(a).
\213\ See 24X Rule 11.9(a)(1). See also 24X Rule 11.9(a)(5), 24X
Rule 11.23, and 24X Rule 13.2. See also supra section III.D.2.f.
\214\ See 24X Rule 11.9(a)(2).
\215\ See 24X Rule 11.9(a)(3). See also section III.D.2.b.
\216\ See 24X Rule 11.9(d).
---------------------------------------------------------------------------

In addition, 24X will permit firms to register as Market Makers
with affirmative and negative market making obligations.\217\ In
particular, Market Makers will be required to maintain continuous two-
sided quotes of at least 100 shares only during Regular Trading
Hours.\218\ While Market Makers would have no such obligations during
the Pre-Market, Post-Market or 24X Market Sessions, 24X's proposed
rules relating to Market Makers are similar to the rules of other
national securities exchanges, which do not extend Market Maker
obligations to extended hours trading sessions.\219\
---------------------------------------------------------------------------

\217\ See 24X Rules 11.17 through 11.20.
\218\ See 24X Rule 11.20(a)(1). The term ``Regular Trading
Hours'' is defined as ``the time between 9:30 a.m. and 4:00 p.m.
Eastern Time each U.S. Business Day.'' See 24X Rule 1.5(dd).
\219\ See, e.g., MEMX Exchange Rules 11.17 through 11.20; Cboe
EDGX Rules 11.17 through 11.20.
---------------------------------------------------------------------------

In its Form 1, 24X stated that it will join and participate in any
applicable national market system plan that other national securities
exchanges and/or market centers have joined, including, for example,
the three Equity Data Plans \220\ that currently govern the collection,
consolidation, processing, and dissemination of core data.\221\ 24X
further states that it would ``likewise join all other applicable Plans
as deemed necessary and in the interest of its Users.'' \222\
---------------------------------------------------------------------------

\220\ The three equity data plans that currently govern the
collection, consolidation, processing, and dissemination of national
market system data by the exclusive Securities Information
Processors (``SIPs'') are (1) the Consolidated Tape Association Plan
(``CTA Plan''), (2) the Consolidated Quotation Plan (``CQ Plan''),
and (3) the Joint Self-Regulatory Organization Plan Governing the
Collection, Consolidation, and Dissemination of Quotation and
Transaction Information for Nasdaq-Listed Securities Traded on
Exchanges on an Unlisted Trading Privileges Basis (``UTP Plan'')
(collectively, the ``Equity Data Plans''). See also 24X Rule 1.5(o).
\221\ See Form 1, Exhibit E. See also 24X Rule 11.11 (providing,
in part, that 24X will report executions to the appropriate
consolidated transaction reporting system ``to the extent required
by the Exchange Act and the rules and regulations thereunder.'').
See also infra section III.D.2.a.i. (discussing the availability of
the Equity Data Plans during the 24X Market Session).
\222\ See Form 1, Exhibit E (stating, ``including, but not
limited to, the NMS Plan to Address Extraordinary Market Volatility
(``Limit Up-Limit Down Plan''), the NMS Plan Governing the
Consolidated Audit Trail (the `CAT NMS Plan'), the NMS Plan for the
Selection and Reservation of Securities Symbols, and the 17d-2 Plans
for Allocation of Regulatory Responsibilities'').
---------------------------------------------------------------------------

One commenter stated that the Exchange proposal was ``somewhat
vague'' with regard to transaction fees and that 24X ``should give a
range of where fees will land compared to other exchanges.'' \223\ 24X
responded that its approach to fees is ``typical for exchange
applications'' and that Exhibit E states that it ``intends to establish
a Fee Schedule setting forth all applicable transaction and other fees
. . . close to launch of the Exchange'' so that the fees reflect the
``competitive landscape at that time.'' \224\
---------------------------------------------------------------------------

\223\ See Montone Letter at 9.
\224\ See 24X Letter II at 15.
---------------------------------------------------------------------------

Form 1 requires an applicant to provide a description of proposed
fees.\225\ In its Exhibit E, 24X described its proposed fees, including
transaction fees, membership fees, regulatory charges, permit
application fees, market

[[Page 97104]]

data fees, co-location fees, connectivity fees, and bandwidth
fees.\226\ Further, 24X Rule 15.1, which establishes the Exchange's
authority to impose fees, dues, assessments and other charges that 24X
may prescribe, lists the following fees that 24X will impose:
``membership dues, transaction fees, communication and technology fees,
regulatory charges, listing fees, and other fees and charges as the
Exchange may determine.'' \227\ 24X also stated that it intends to
establish a fee schedule that sets forth all fees, and that the actual
fee amounts and types will be determined at a time closer to
launch.\228\
---------------------------------------------------------------------------

\225\ See Form 1, Exhibit E (requiring a description of the
manner of operation of the System and that the description should
include proposed fees).
\226\ See Form 1, Exhibit E.
\227\ See 24X Rule 11.15(a).
\228\ See Form 1, Exhibit E.
---------------------------------------------------------------------------

24X's Form 1 satisfies the requirements of the Form 1 as it
describes the fees that 24X may prescribe. However, any fees, dues or
other charges that 24X intends to assess must be filed as a proposed
rule change pursuant to section 19(b) of the Exchange Act \229\ and
Rule 19b-4 thereunder.\230\ Exchange fees are subject to the
requirements of the Exchange Act, including sections 6(b)(4) and
6(b)(5).\231\
---------------------------------------------------------------------------

\229\ 15 U.S.C. 78s(b).
\230\ 17 CFR 240.19b-4.
\231\ 15 U.S.C. 78f(b)(4), (b)(5).
---------------------------------------------------------------------------

2. 24X Market Session
As discussed above, 24X will operate the 24X Market Session, a
fourth trading session that will extend the hours of exchange trading
for NMS stocks beyond the existing extended hours sessions.\232\ In
Amendment No. 2, 24X modified its original proposal for the 24X Market
Session to include overnight trading only on certain nights of the
week--Sunday through Thursday--that precede a U.S. Business Day.\233\
As discussed above,\234\ while several exchanges offer a pre-market
trading session that may start as early as 4 a.m. on each U.S. Business
Day, and most exchanges offer a post-close trading session that ends at
8 p.m. on each U.S. Business Day, 24X's model, as amended, will expand
exchange trading hours such that trading on 24X will be conducted on a
largely continuous basis during the week subject to a daily one hour
trading pause.\235\ 24X will operate the 24X Market Session, as
amended, in a manner that is consistent with current extended hours
sessions.\236\ Further, as discussed below, 24X will require that 24X
Members make disclosures to their customers concerning risks associated
with trading during Extended Hours Trading, and has included tailored
disclosures that 24X Members must provide to their customers to reflect
the potential risks associated with the 24X Market Session, as
amended.\237\
---------------------------------------------------------------------------

\232\ See 24X Rule 11.2(a); see also section III.D.2.d.
(discussing securities eligible for trading during the 24X Market
Session). See also supra notes 183 and 184 (describing the existing
exchanges' extended hours sessions).
\233\ See 24X Rule 1.5(c).
\234\ See supra notes 183 and 184 and accompanying text.
\235\ See 24X Rule 11.15(c). See also infra section III.D.2.c.
\236\ For example, 24X will not accept Market Orders or Pegged
Orders in the 24X Market Session and 24X will utilize the same
clearly erroneous execution rules that apply on other venues that
have extended hours sessions.
\237\ See 24X Rule 3.21. See also infra section III.D.2.e.
---------------------------------------------------------------------------

The Commission received several comment letters about the proposed
operation of the 24X Market Session, which, as initially proposed,
would have operated 8 p.m. until 4 a.m. during every U.S. Business Day
as well as most of the day on weekends and holidays, subject to
proposed trading pauses. Some commenters supported the originally
proposed expansion of trading hours.\238\ For instance, two commenters
stated that the originally proposed 24X Market Session would bring the
``current practice of trading 24/7 onto a lit exchange'' \239\ and that
the market should be left to decide whether this is a valuable
endeavor.\240\ One commenter stated that 24-hour trading already occurs
and that ``it is better that it be on a national securities exchange
with higher regulatory protections afforded by an exchange.'' \241\
---------------------------------------------------------------------------

\238\ See, e.g., Polygon Letter; DriveWealth Letter; Angel
Letter I; Angel Letter II; Montone Letter.
\239\ See Polygon Letter at 5. See also DriveWealth Letter at 1.
\240\ See Polygon Letter at 5. See also Angel Letter I.
\241\ See Angel Letter I at 2.
---------------------------------------------------------------------------

One commenter stated that its recent research ``implies that 23/7
trading will likely improve the market's allocative efficiency relative
to the traditional 6.5/5 trading schedule.'' \242\ This commenter
stated that their research studied welfare, measured by the allocative
efficiency of the market, in equilibria of two market designs: one with
a daily closure, and another in which closure is eliminated. According
to the commenter, the research showed that ``as long as there is a
closure for some time, most of the benefits of a market closure are
accrued.'' \243\ Thus, the commenter stated that it is likely that
24X's proposed 23/7 exchange will maintain the welfare benefits of a
market closure, reduce the costs of a prolonged closure, and enhance
allocative efficiency.\244\
---------------------------------------------------------------------------

\242\ See Blonien and Ober Letter at 1.
\243\ According to the commenter, in the model, a market closure
not only concentrates liquidity throughout the day but also helps
coordinate liquidity, especially towards the end of the trading.
Moreover, the commenters state that the cost of a closure, that a
traders' positions may deviate far from their desired positions, is,
according to the commenter, outweighed by its benefits. See Blonien
and Ober Letter at 1.
\244\ See Blonien and Ober Letter at 1. The commenter stated
that these findings are based on a model of large and homogeneous
traders, and that heterogeneous groups of traders, such as retail
investors, market makers, and informed traders, may have asymmetric
responses to market closures of differing lengths. See id.
---------------------------------------------------------------------------

Several commenters raised concerns about the original proposed
expansion of trading hours. For instance, two commenters stated that
the proposal would harm retail investors due to low volumes and wide
spreads during the extended trading hours and a lack of liquidity would
result in a wealth transfer from investors to professionals.\245\
Another commenter stated that although 24X suggests that retail
investors would welcome 24-hour exchange trading, the demand for
investors for overnight and weekend trading seems speculative because
no information has been provided about the number of such investors or
the relevance of the potential benefit.\246\ Another commenter stated
that investor demand should be considered to assess whether the
expansion of trading hours would justify the market-wide costs.\247\
---------------------------------------------------------------------------

\245\ See Better Markets Letter at 2; SIFMA Letter II at 2.
\246\ See IEX Letter at 2.
\247\ See SIFMA Letter II at 2. See infra notes 290-292 and
accompanying text (discussing costs relating to the expansion of
trading hours).
---------------------------------------------------------------------------

One commenter suggested a ``cautious approach to expanding hours''
because its research indicated ``negative consequences for retail
investment.'' \248\ Another commenter, however, stated that the
research cited did not examine overnight trading or expansion of
trading hours but instead examined time zone differences.\249\ This
commenter stated 24-hour trading ``is already here on automated trading
systems, so rejecting the 24X application would not restrict retail
access to overnight trading at all.'' \250\
---------------------------------------------------------------------------

\248\ See Glover and deHaan Letter at 1.
\249\ See Angel Letter II at 3.
\250\ See Angel Letter II at 2.
---------------------------------------------------------------------------

With respect to the commenter's concern about retail investor
participation in the 24X Market Session,\251\ 24X stated that, as
discussed below, the Commission has historically allowed retail
participation in expanded trading hours with appropriate
disclosures.\252\ In Amendment No. 1, 24X amended its 24X Rule 3.21 to

[[Page 97105]]

provide additional disclosures designed to address the potential risks
of the 24X Market Session.\253\ 24X stated, in response to commenters
questioning whether additional trading hours would benefit investors,
that ``there is substantial interest in expanded trading hours'' and
that the markets should be able to determine whether the 24X proposal
will be successful.\254\ 24X also stated that its amended rules for the
24X Market Session are a more incremental approach that will address
the cost concerns raised by some commenters because it eliminates the
potential costs related to weekend and holiday trading.\255\ 24X
further stated that it did not believe that ``costs related to
innovation should be the basis for the Commission to determine that an
exchange application does not comply with the Exchange Act.'' \256\ 24X
also stated that the markets will determine whether ``its innovative
proposal'' is successful.\257\
---------------------------------------------------------------------------

\251\ See supra note 245 and accompanying text.
\252\ See 24X Letter II at 11. See also infra section III.D.2.e.
(discussing customer disclosures relating to risks of the 24X Market
Session).
\253\ As discussed above, in Amendment No. 2, 24X scaled back
the hours of operation of the 24X Market Session to 8 p.m. to 4 a.m.
Sunday, Monday, Tuesday, Wednesday, and Thursday nights, so long as
the next trading day is a U.S. Business Day. See supra note 233 and
accompanying text. As part of Amendment No. 2, 24X also revised the
disclosures that must be provided by 24X Members to their customers
to reflect the revised operating hours of the 24X Market Session.
See infra section III.D.2.e.
\254\ See 24X Letter III at 5. See also 24X Letter IV at 6
(stating that ``the number of market participants interested in
overnight trading continues to grow.'').
\255\ See 24X Letter III at 2.
\256\ See 24X Letter III at 2.
\257\ See 24X Letter IV at 6.
---------------------------------------------------------------------------

As discussed further below, the Commission finds that the 24X rules
for the 24X Market Session, as amended, are consistent with the
Exchange Act. Specifically, the 24X Market Session rules are modeled on
the rules of national securities exchanges that currently operate
trading sessions during extended hours and are designed to address the
potential differences in trading compared to Regular Trading
Hours.\258\ For example, during the 24X Market Session, the only order
type that may be submitted is a Limit Order, which requires market
participants to set the prices at which they are willing to trade.
Accepting only Limit Orders during extended hours sessions can help to
address the potential risks that there may be wider spreads,\259\ or
that prices may be affected by new announcements made by issuers.\260\
Other exchanges allow the submission of only limit orders during
extended hours sessions.\261\
---------------------------------------------------------------------------

\258\ See supra notes 183-184 and accompanying text.
\259\ See 24X Rule 3.21(f).
\260\ See 24X Rule 3.21(e).
\261\ See e.g., NYSEArca Rule 7.34-E(d) (stating that only limit
orders are eligible to participate in the Early Trading Session and
Late Trading Session).
---------------------------------------------------------------------------

In addition, 24X Members are required to provide disclosures to
customers that will provide information about potential risks of
trading in extended hours, including the 24X Market Session. These
disclosures are consistent with the rules of other SROs, which require
customers to be provided with disclosures regarding the potential risks
of extended hours trading.\262\ While two commenters stated that
investors would be harmed by low liquidity, low volumes and wider
spreads, these potential risks are included in the disclosures that
must be provided to customers by 24X Members.\263\ Investors are
provided information about these potential risks and are able to decide
whether to participate in extended hours sessions, including the 24X
Market Session.
---------------------------------------------------------------------------

\262\ See e.g., NYSEArca Rule 7.34-E(d)(3); Nasdaq Rule Equity
2, Section 20; MEMX Exchange Rule 3.21; FINRA Rule 2265.
\263\ See 24X Rule 3.21(a) (describing the risk of lower
liquidity); 24X Rule 3.21(f) (describing the risk of wider spreads).
---------------------------------------------------------------------------

Further, the 24X Market Session will overlap with the extended
hours trading that currently occurs in the over-the-counter (``OTC'')
market.\264\ Accordingly, while the 24X Market Session represents a new
trading session for exchange trading, market participants, including
retail investors, are already able to trade during the times covered by
the 24X Market Session. While commenters stated that investor demand
should be considered to assess whether the expansion of trading hours
would justify market-wide costs, the Commission is required to consider
a Form 1 application for consistency with statutory standards.\265\ For
the reasons discussed herein, the Commission has determined that the
24X Form 1 is consistent with the Exchange Act and the rules
thereunder.
---------------------------------------------------------------------------

\264\ See e.g., Blue Ocean ATS, LLC (``BOATS''). The operating
hours for BOATS occur from 8 p.m. to 4 a.m. on days with the NYSE
Trade Reporting Facility is open for trade reporting. See Form ATS-
N, available at sec.gov/Archives/edgar/data/1795131/000153949723000091/xslATS-N_X01/primary_doc.xml.
\265\ In a letter to the Commission, 24X stated that investor
demand for overnight trading is growing and provided details of
other market participants that have recently expressed interest in
expanding the hours of trading on an exchange. See 24X Letter IV at
6 (citing a proposal by NYSE Arca to expand its trading hours and a
notice by Schwab announcing an expansion to 24-hour trading for
certain stocks).
---------------------------------------------------------------------------

Finally, pursuant to this Form 1, as amended, 24X will not commence
operation of the 24X Market Session prior to filing a proposed rule
change. Specifically, 24X Rule 1.5(c) requires 24X, prior to commencing
operations during the 24X Market Session, to file a proposed rule
change, pursuant to section 19(b) of the Exchange Act and the rules
thereunder, to amend its rules confirming that 24X is able to comply
with its obligations under the Exchange Act during the 24X Market
Session and that the Equity Data Plans are prepared to collect,
consolidate, process and disseminate quotation and transaction
information at all times during the 24X Market Session (``24X Market
Session Proposed Rule Change''). As discussed below, the 24X Market
Session Proposed Rule Change must be filed with the Commission and
approved, or otherwise become effective pursuant to Exchange Act
section 19(b), before 24X can provide trading during the 24X Market
Session.\266\ In the 24X Market Session Proposed Rule Change, 24X must
confirm that it is able to comply with its obligations under the
Exchange Act during the 24X Market Session and that the Equity Data
Plans are prepared to collect, consolidate, process and disseminate
quotation and transaction information at all times during the 24X
Market Session that is equivalent to the mechanism established for
Exchange Trading Hours other than the 24X Market Session.\267\ The 24X
rule requiring the operation of the Equity Data Plans during the 24X
Market Session is designed to ensure that consolidated quotation and
transaction data are provided in a manner that is consistent with the
existing extended hours sessions on exchanges.\268\ Accordingly, 24X
rules are designed to prevent fraudulent and manipulative acts and
practices, promote just and equitable principles of trade, foster
cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to and
facilitating transactions in NMS stocks, and perfect the mechanism of a
free and open market and a national market system.\269\ 24X rules are
also designed to protect

[[Page 97106]]

investors and the public interest.\270\ The 24X rules governing the 24X
Market Session will expand the hours of trading available on a national
securities exchange, and such trading will be transparent because
trading will not occur unless the Equity Data Plans are able to
collect, consolidate, process and disseminate consolidated quotation
and transaction data during the 24X Market Session (i.e., between 8
p.m. and 4 a.m. Sunday, Monday, Tuesday, Wednesday, and Thursday nights
that precede a U.S. Business Day).\271\ The 24X rules for the 24X
Market Session will foster competition by introducing another trading
venue during these trading hours.\272\ Finally, the 24X rules for the
24X Market Session are designed to provide additional investor
protections.\273\
---------------------------------------------------------------------------

\266\ See 24X Rule 1.5(c) and 24X Rule 11.16. 24X may begin
operations of its other trading sessions once the conditions
discussed below have been satisfied.
\267\ See 24X Rule 1.5(c).
\268\ As discussed above, the 24X will not start operating the
24X Market Session unless the Equity Data Plans have established a
mechanism to collect, consolidate, process and disseminate quotation
and transaction information at all times during the 24X Market
Session that is equivalent to the mechanism established for Exchange
Trading Hours other than the 24X Market Session, among other things.
See 24X Rule 1.5(c).
\269\ 15 U.S.C 78f(b)(5).
\270\ Id.
\271\ See infra section III.D.2.a.i.
\272\ See e.g., supra note 264.
\273\ See e.g., supra section III.C; and infra section III.D.e;
section III.E.2; section III.F.
---------------------------------------------------------------------------

a. Effect of 24X Market Session on Market Structure
Several commenters raised questions about the potential impact of
the 24X Market Session, as originally proposed, on current market
structure because it would greatly expand exchange trading hours.
Several commenters stated that the Commission should consider
roundtable discussions about the market structure implications of 24-
hour trading.\274\ One commenter stated that the 24X proposal ``has
serious implications for the regulatory, technological, and operational
underpinnings of the equity securities markets and will result in
significant costs for the industry.'' \275\ Another commenter stated
that the 24X Market Session, as originally proposed, is
``incompatible'' with current market structure and that a broader
Commission engagement, outside of an exchange application, is needed to
determine how U.S. equity market structure would be affected.\276\ This
commenter further stated that the 24X Market Session as originally
proposed ``could exacerbate a two-tiered system of regulation between
core and extended trading hours'' because certain Exchange Act rules
apply only during Regular Trading Hours \277\ and could make compliance
with best execution obligations more challenging.\278\ Another
commenter stated that the 24X Market Session, as originally proposed
``[r]aises significant, insufficiently addressed market policy
concerns,'' \279\ while another stated that the proposal represents the
``first occurrence of a national securities exchange that utilizes
unlisted trading privileges to operate outside the trading hours of the
primary listing exchanges.'' \280\
---------------------------------------------------------------------------

\274\ See DriveWealth Letter at 2, SIFMA Letter at 2, SIFMA
Letter II at 3-4; FIA PTG Letter at 2; FIA PTG Letter II at 3.
\275\ See FIA PTG Letter at 1, 2; FIA PTG Letter II at 1.
\276\ See SIFMA Letter at 4-5 (stating that the Commission must
consider a number of factors, including the public interests
involved, the effect on exchange competition dynamics, interaction
with existing and proposed regulations, and whether a fair and
orderly market is possible where potentially different rules would
apply to exchanges based on the hours they operate). This commenter
also stated that the Commission must consider how the 24X Form 1
would interact with ``outstanding equity market structure
proposals.'' See SIFMA Letter at 6-7. The commenter asked
interpretative questions about the proposal to amend Regulation NMS.
See Securities Exchange Act Release No. 96494 (Dec. 14, 2022), 87 FR
80266 (Dec. 29, 2022). After submission of the comment letter, the
Commission adopted amendments to Regulation NMS on Sept. 18, 2024.
See Securities Exchange Act Release No. 101070 (Sept. 18, 2024), 89
FR 81620 (Oct. 8, 2024) (``2024 Regulation NMS Adopting Release'').
The commenter also asked questions about proposed Regulation Best
Execution, Securities Exchange Act Release No. 96496 (Dec. 14,
2022), 88 FR 5540 (Jan. 27, 2023); and the proposed Order
Competition Rule, Securities Exchange Act Release No. 96495 (Dec.
14, 2022), 88 FR 128 (Jan. 3, 2023). 24X stated that ``addressing
how such proposals may relate to 24X's exchange application are
outside of the scope of consideration of whether 24X's exchange
application complies with the requirements of the Exchange Act.''
See 24X Letter II at 19. Proposed Regulation Best Execution and the
proposed Order Competition Rule remain proposals. The commenter
submitted a second letter requesting confirmation about the
application of aspects of the 2024 Regulation NMS Adopting Release
during the 24X Market Session. See SIFMA Letter II at 13. The
questions posed by the commenter are addressed within the 2024
Regulation NMS Adopting Release and existing rules and regulations.
The 2024 Regulation NMS Adopting Release, as well as the definitions
included in Rule 600 of Regulation NMS and the specific rules under
Regulation NMS, define the application of the rules during different
trading sessions.
\277\ For example, the commenter stated that certain aspects of
Regulation NMS only apply during Regular Trading Hours, such as Rule
611 of Regulation NMS, and that certain definitions in Rule 600 of
Regulation NMS specify Regular Trading Hours, such as ``covered
order.'' See SIFMA Letter I at 4.
\278\ Id.
\279\ See Healthy Markets Letter at 7.
\280\ See Nasdaq Letter at 3.
---------------------------------------------------------------------------

24X stated that ``in today's market, the regulatory requirements
vary depending on the trading session'' with greater protections
required during Regular Trading Hours.\281\ 24X stated that the
Commission has allowed extended trading hours on other exchanges and
the same rationale should be applied in this instance because the 24X
rules for the 24X Market Session raise ``no new issues.'' \282\ In
response to the comment about trading NMS stocks pursuant to UTP
outside of the hours of the primary listing exchanges, 24X stated that
it would ``coordinate with the primary listing markets with regard to
their regulatory roles related to their listed companies (e.g., trading
halts).'' \283\ Further, 24X stated that 24X Rule 11.15(c)(5) requires
24X to halt trading if the primary listing exchange determines to halt
trading.\284\ In response to comments about industry roundtables, 24X
stated that ``its exchange application has been subject to public
comment by the industry and others . . . in accordance with the
requirements of the Exchange Act.'' \285\ 24X further stated that
amending the rules governing the 24X Market Session to eliminate
trading on weekends and holidays in response to comments is a
``significant adaption.'' \286\
---------------------------------------------------------------------------

\281\ See 24X Letter II at 14. 24X further states that it will
comply with all required rules and regulations applicable to
national securities exchanges during its Core Market Session. Id.
\282\ See 24X Letter II at 14.
\283\ Id. at 8.
\284\ Id. at 4.
\285\ See 24X Letter III at 5.
\286\ Id.
---------------------------------------------------------------------------

The 24X rules for the 24X Market Session have been amended to
increase transparency and enhance customer risk disclosures such that
it will operate in a manner that is consistent with the regulatory
framework of the extended hours sessions of other national securities
exchanges.\287\ As discussed throughout this order, the 24X Market
Session, as amended, will operate with rules that are designed to
protect investors consistent with the requirements of the federal
securities laws and the rules and regulations thereunder.
---------------------------------------------------------------------------

\287\ See also infra section III.D.2.b.i.
---------------------------------------------------------------------------

Several commenters suggested that a broader study of expanded hours
trading should be conducted prior to Commission action on the 24X
exchange application.\288\ The continuing evolution of the equities
market, including increasing investor interest in extended hours
trading, may warrant consideration of the existing regulatory scheme
that applies to expanded hours trading sessions. The Commission
continually monitors the national market system and the operation of
the Federal securities laws, and the Commission, consistent with its
oversight of the national market system, will continue to monitor the
developments of extended hours trading. However, the monitoring of new
market developments does not foreclose Commission action on the 24X
Form 1, which, for reasons discussed throughout, satisfies the
requirements of the Exchange Act.
---------------------------------------------------------------------------

\288\ See supra note 274 and accompanying text.

---------------------------------------------------------------------------

[[Page 97107]]

Further, the 24X Form 1 has been subject to the relevant notice and
comment requirements. Public comment on the application has been
solicited four separate times--with the publication of the Notice, the
OIP, Amendment No. 1, and Amendment No. 2. The public, including market
participants, have been afforded adequate opportunity for comment, and
interested persons have taken the opportunity to provide written data,
views, and arguments concerning this application which has yielded a
robust analysis of the relevant issues.\289\ 24X has responded, by
amending its Form 1, in part, to address the various concerns raised by
certain commenters. Notably, 24X has narrowed its hours of operation,
added rules to increase operational transparency and relevant customer
risk disclosures, and amended certain proposed rules to conform with
the existing regulatory framework for extended hours trading of other
national securities exchanges. In addition, as has been discussed
throughout this order, the expansion of trading hours initially
proposed by 24X is not entirely novel as off-exchange trading currently
occurs during those hours. Accordingly, issues related to the 24X
Market Session have been raised, analyzed, and addressed, and
Commission action on the 24X Form 1 should not be delayed by, and is
not dependent on, a broader study of equity market structure.
---------------------------------------------------------------------------

\289\ 15 U.S.C 78s(a).
---------------------------------------------------------------------------

While there will be costs to the industry related to implementing
the expansion of exchange trading hours, the record does not support a
denial of the 24X Form 1 application as inconsistent with the Exchange
Act. The operation of the 24X Market Session will not commence until
the conditions outlined in this order have been met.\290\
---------------------------------------------------------------------------

\290\ See infra section V.
---------------------------------------------------------------------------

i. Equity Data Plans
The Equity Data Plans do not operate during the time period that
will cover the 24X Market Session, as amended. Several commenters
raised concerns about the lack of consolidated data during the 24X
Market Session, as originally proposed.\291\ One commenter stated that
the 24X trading sessions should align with the operational hours of the
Equity Data Plans.\292\ Another commenter stated that if 24X was
approved without extending the exclusive SIP hours, quotes and trades
would not be publicly disseminated in real time and that the delay
would be inconsistent with the national market system and significantly
reduce market transparency.\293\ One commenter stated, in response to
the 24X Market Session as originally proposed, that moving to 24-hour
on-exchange trading requires deliberate consideration of the market-
wide implications of such a move, including the cost and complexity of
overhauling the market-wide infrastructure to allow for the publication
of quote and trade data by the exclusive SIPs during the proposed
overnight and weekend sessions, as measured against its potential
benefits.\294\ The commenter stated that changing exclusive SIP
operations to accommodate the original proposal would amount to a huge
undertaking, and that the costs and timeline associated with these
changes have not been determined.\295\ Moreover, the commenter stated
that 24X has neither acknowledged responsibility for funding these
changes, nor provided information on its ability to do so.\296\ The
commenter further stated that the exclusive SIPs would likely incur
substantial increased ongoing costs to maintain the originally proposed
extended hours, and that neither these costs, which the commenter
stated would likely be borne by all exclusive SIP subscribers
regardless of whether they participate in overnight or weekend trading,
nor their potential benefits, have been determined.\297\
---------------------------------------------------------------------------

\291\ See Polygon Letter; Nasdaq Letter, Montone Letter, IEX
Letter, SIFMA Letter. Several commenters also stated that there
should be a consideration of off-exchange trade reporting to the
Equity Data Plans. See Nasdaq Letter at 3, SIFMA Letter at 3,
DriveWealth Letter at 2, FIA PTG Letter at 2. The Commission agrees
and believes that the Equity Data Plans and FINRA should consider
accommodating real-time OTC trade reporting.
\292\ See Nasdaq Letter at 3. See also Montone Letter at 8.
\293\ See SIFMA Letter at 3. See also FIA PTG Letter at 2.
\294\ See IEX Letter at 1-2. See also DriveWealth Letter at 2.
\295\ See IEX Letter at 2. See also FIA PTG Letter at 2; FIA PTG
Letter II at 3.
\296\ See IEX Letter at 2.
\297\ See IEX Letter at 2; FIA PTG Letter II at 3.
---------------------------------------------------------------------------

In Amendment No. 2, in response to commenters' concerns about the
operation of the 24X Market Session during time periods when the Equity
Data Plans are not in operation,\298\ 24X modified its Rule 1.5(c) and
Rule 11.16 to require the concurrent operation of the Equity Data Plans
before the operation of the 24X Market Session commences, and that 24X
file the 24X Market Session Proposed Rule Change that would serve to
provide notice to the Commission and the public of 24X's intention to
commence operation of the 24X Market Session. Specifically, 24X Rule
1.5(c) states that 24X will not start operating the 24X Market Session
unless the Equity Data Plans ``(1) have established a mechanism to
collect, consolidate, process and disseminate quotation and transaction
information at all times during the 24X Market Session that is
equivalent to the mechanism established for Exchange Trading Hours
other than the 24X Market Session,'' and (2) the Equity Data Plans have
notified 24X of their readiness.\299\
---------------------------------------------------------------------------

\298\ See SIFMA Letter at 3; FIA PTG Letter at 2; Nasdaq Letter
at 3; Healthy Markets Letter at 10-11; but see Polygon Letter at 2-5
(stating that Commission should approve 24X and force the adoption
of the competing consolidator model to allow for the dissemination
of market data in real time). 24X stated that it has ``fully
addressed'' commenter concerns about trading in the 24X Market
Session occurring outside of the operating hours of the Equity Data
Plans by the changes proposed in Amendment No. 2. See 24X Letter IV
at 4-5.
\299\ See 24X Rule 1.5(c).
---------------------------------------------------------------------------

24X Rule 1.5(c) requires 24X, prior to commencing the 24X Market
Session, to file the 24X Market Session Proposed Rule Change, pursuant
to section 19(b) of the Exchange Act and the rules thereunder. The 24X
Market Session Proposed Rule Change must be filed with the SEC within
18 months of the SEC's approval of 24X's application for registration
as a national securities exchange. If the 24X Market Session Proposed
Rule Change is not filed within 18 months of the SEC's approval of
24X's application for registration as a national securities exchange,
the Exchange will promptly file a proposed rule change to remove the
rules that apply to the 24X Market Session. In addition, 24X Rule 11.16
states that, ``24X will not commence operations of the 24X Market
Session until a proposed rule change as required under 24X Rule 1.5(c)
has been approved, or has otherwise become effective, under section
19(b) of the Exchange Act and the rules thereunder.'' \300\
---------------------------------------------------------------------------

\300\ The approval of 24X's application to register as a
national securities exchange is separate and distinct from
Commission consideration of any future amendments to the Equity Data
Plans or proposed rule changes filed by 24X. As a matter of course,
the Commission will consider any future amendments to the Equity
Data Plans and any proposed rule changes filed by 24X upon filing,
pursuant to the applicable statutory provisions and rules.
---------------------------------------------------------------------------

24X responded to commenters' concerns about costs by stating that
it recognized that innovations, such as the introduction of the 24X
Market Session, ``may involve additional costs'' but that increased
costs should not ``be the basis for the Commission to determine that an
exchange application does not comply with the Exchange Act.'' \301\ 24X
stated that market participants ``are already trading overnight on ATSs
or

[[Page 97108]]

otherwise'' and that new costs for exchange trading would be
``incremental.'' \302\ 24X also stated that broker-dealers can decide
whether to participate in the 24X Market Session.\303\ Finally, 24X
stated with regard to the expansion of the exclusive SIPs' hours that
the Equity Data Plans have a process for determining the cost for new
participants and for changes.\304\
---------------------------------------------------------------------------

\301\ See 24X Letter II at 16.
\302\ Id.
\303\ Id.
\304\ See 24X Letter IV at 7. See supra notes 290-292 and
accompanying text (discussing costs relating to the expansion of
trading hours).
---------------------------------------------------------------------------

The Commission agrees with commenters regarding consolidated
quotation and transaction information during the 24X Market Session.
Pursuant to its amended Form 1, 24X will not operate during the 24X
Market Session until the Equity Data Plans are able to collect,
consolidate, process and disseminate quotation and transaction
information at all times during the session. The 24X rules for the 24X
Market Session, as amended, are consistent with sections 6(b)(5) and
11A of the Exchange Act.\305\
---------------------------------------------------------------------------

\305\ 15 U.S.C. 78f(b)(5) and 15 U.S.C. 78k-1.
---------------------------------------------------------------------------

24X Rules 1.5(c) and 11.16 provide that 24X will submit a proposed
rule change within 18 months of the Commission's approval of 24X's
application to operate as a national securities exchange with regard to
the operation of the 24X Market Session. These provisions relating to
the force and effect of the 24X Market Session rules set forth in 24X
Rule 11.16 help to balance the interest in providing the time needed
for 24X to be able to comply with 24X Rule 1.5(c) with the interest in
ensuring that the rules of an Exchange are effective and can be
enforced by the Exchange.
The requirement contained in its rules that the 24X Market Session
will not begin operation until the 24X Market Session Proposed Rule
Change is approved or otherwise has become effective will enhance
transparency during the 24X Market Session and promote the goals of the
national market system. Specifically, the Commission finds that the 24X
rules for the 24X Market Session, as amended, are consistent with
section 11A(a)(1)(C) of the Exchange Act, in which Congress found that
it is in the public interest and appropriate for the protection of
investors and the maintenance of fair and orderly markets to assure the
availability to brokers, dealers, and investors of information with
respect to quotations for and transactions in securities, and to assure
the practicability of brokers executing investors' orders in the best
market.\306\ The requirement ensuring that 24X will not commence
operation of its 24X Market Session until the availability of the
concurrent operation of the Equity Data Plans accomplishes Exchange Act
objectives by ensuring that there is transparency during these new,
extended trading hours through the communication of quotations and
transactions to market participants and investors.
---------------------------------------------------------------------------

\306\ 15 U.S.C. 78k-1(a)(1)(C).
---------------------------------------------------------------------------

Finally, one commenter stated that the Market Data Infrastructure
(``MDI'') Rules \307\ should be implemented because competing
consolidators would not be ``time-bound'' and would collect,
consolidate and disseminate data ``in real-time 24/7.'' \308\ The MDI
Rules continue to be implemented, however, the MDI Rules will not be
implemented before action is required on the 24X Form 1.\309\
---------------------------------------------------------------------------

\307\ Securities Exchange Act Release No. 90610 (Dec. 11, 2020),
86 FR 18596 (Apr. 9, 2021) (``MDI Rules Adopting Release'').
\308\ See Polygon Letter at 4.
\309\ See 2024 Regulation NMS Adopting Release, supra note 276.
---------------------------------------------------------------------------

b. Volatility Moderators in the 24X Market Session
24X initially proposed to implement unique ``24X Price Bands'' to
moderate risk and volatility during the 24X Market Session.\310\
Several commenters questioned the use of the proposed volatility
moderators.\311\ In particular, one commenter asked why the proposed
24X Price Bands differed from the existing Limit up-Limit down bands
and stated that the proposed 24X Price Bands were ``different from
price bands used by ATSs that operate outside of core trading hours,''
\312\ while another commenter stated there was no basis to justify the
24X Price Bands.\313\ Another commenter, however, stated that the
proposed 24X Price Bands ``should be sufficient to prevent erroneous
trades.'' \314\
---------------------------------------------------------------------------

\310\ See, e.g., Proposed 24X Rule 11.15(a); Form 1, Exhibit E-
1. As initially proposed, a 24X Price Band would be calculated for
each relevant security by multiplying the ``Reference Price,'' as
specified in 24X Rule 11.15(a)(2), by the applicable ``Percentage
Parameter,'' set out in 24X Rule 11.15(a)(1). Under Rule 11.15(a)(1)
as initially proposed, this figure (rounded to the nearest $0.01)
would then be added to the Reference Price to calculate the ``Upper
24X Price Band'' and subtracted from the Reference Price to
calculate the ``Lower 24X Price Band'' and no trades would be
allowed outside the 24X Price Bands. Proposed 24X Rule 11.15(a)(1).
\311\ See Healthy Markets Letter at 8; SIFMA Letter at 6; FIA
PTG Letter at 2.
\312\ See SIFMA Letter at 6.
\313\ See Healthy Markets Letter at 8.
\314\ See Angel Letter I at 3. See also Montone Letter at 7.
---------------------------------------------------------------------------

24X proposed in Amendment No. 1 to remove proposed 24X Rule
11.15(a) from its rules, which removed all references to the proposed
24X Price Bands.\315\ In its letter responding to comments on the OIP,
24X stated that it ``would rely upon its clearly erroneous rule,
[p]roposed 24X Rule 11.14, to address volatility and risk during the
24X Market Session.'' \316\ 24X stated that it would also ``provide
other additional protections to investors to address potential
volatility and risk during the 24X Market Session. For example, under
Proposed 24X Rule 11.7(a)(4), 24X would not allow the use of market
orders during the 24X Market Session.'' \317\ As a result, 24X stated
that its rules designed ``to address potential volatility in both
regular and extended hours trading'' are the same as those previously
approved by the Commission for other exchanges.\318\
---------------------------------------------------------------------------

\315\ See 24X Letter II at 5-6; Amendment No. 1; 24X Rule
11.15(a) (now Reserved).
\316\ See 24X Letter II at 6. In Amendment No. 1, 24X further
proposed to make a conforming change to its clearly erroneous rule,
24X Rule 11.14, by deleting subparagraph (d)(4) regarding
calculation of the reference price when the 24X Price Bands would
have been in effect during the 24X Market Session.
\317\ See 24X Letter II at 6.
\318\ See 24X Letter II at 6.
---------------------------------------------------------------------------

One commenter stated that given the significance of displayed
quotations and transaction prices to stock valuations, many trading
firms and other participants will need to monitor the prices published
during overnight and weekend hours, regardless of whether they trade
during those hours and that ``SIP subscribers'' would experience
``costs.'' \319\ This commenter also stated that ``[t]his is
particularly the case'' because 24X does not include volatility limits
other than those that exist under its clearly erroneous execution
rule.\320\ Another commenter opposed 24X's plan to rely on its clearly
erroneous execution rules instead of price bands, as initially
proposed.\321\ This commenter stated that the Commission should
consider ``whether the regulatory framework and market functionality
are in place to support 24x7 trading (including, for example, whether
extending the LULD plan to cover non-core hours is appropriate).''
\322\
---------------------------------------------------------------------------

\319\ See IEX Letter at 2.
\320\ See IEX Letter at 2.
\321\ See FIA PTG Letter II at 3 (stating, ``[p]rice bands serve
as an important investor protection, particularly during periods of
extreme volatility, whereas busting trades under an Exchange's
clearly erroneous rules can give rise to increased risks and
uncertainty.'').
\322\ Id. See also supra note 288 and accompanying text. The
LULD Plan applies during Regular Trading Hours. See LULD Plan,
available at https://www.luldplan.com/.

---------------------------------------------------------------------------

[[Page 97109]]

24X's proposed use of its clearly erroneous execution rule during
the 24X Market Session addresses commenters' concerns about its
initially proposed 24X Price Bands. The use of clearly erroneous
execution rules in the 24X Market Session, instead of the unique,
market-specific 24X Price Bands, will help to ensure there is a
consistent, market-wide regulatory approach across the extended hours
trading sessions of all national securities exchanges.\323\
Accordingly, 24X Rule 11.14 is designed to facilitate transactions in
securities and remove impediments to and perfect the mechanism of a
free and open market and a national market system, consistent with
section 6(b)(5) of the Exchange Act.
---------------------------------------------------------------------------

\323\ See e.g., CboeBZX Rule 11.17; Nasdaq Equity 11, Rule
11890; NYSE Arca Rule 7.10-E.
---------------------------------------------------------------------------

While one commenter suggested that ``SIP subscribers'' may
experience increased costs due to the need to monitor prices during the
24X Market Session, the commenter did not provide information as to how
this differs from other extended hour trading sessions and the
commenter was commenting on the 24X Market Session as originally
proposed. As amended by Amendment No. 2, the 24X Market Session would
cover hours that are currently available for OTC trading and 24X may
not begin operating its 24X Market Session at least until the Equity
Data Plans are able to collect, process, consolidate and disseminate
quotation and transaction data during the 24X Market Session,\324\
which will help to facilitate monitoring of price valuations. Further,
as stated above, the use of clearly erroneous execution rules in
extended hours sessions is consistent with the regulatory framework
applied to other national securities exchanges.\325\
---------------------------------------------------------------------------

\324\ See 24X Rule 1.5(c). Under the rule, 24X will not begin
operation of the 24X Market Session until the 24X Market Session
Proposed Rule Change has been approved or otherwise become
effective. See also supra section III.D.b.i.
\325\ See supra note 323.
---------------------------------------------------------------------------

c. Trading Halts and Pauses
24X proposed rules governing trading halts and pauses for
technology updates and regulatory purposes. As originally proposed, 24X
Rules 11.15(c)(1), (c)(2), (c)(3), (c)(4) and (c)(5) would have paused
trading for: (i) three hours each Saturday morning, from 8 a.m. until
11 a.m.; (ii) an hour at 7 p.m. daily; (iii) industry-wide testing;
(iv) technological or other purposes; and (v) material corporate
actions with respect to a particular security during the 24X Market
Session, respectively. In Amendment No. 2, 24X deleted 24X Rules
11.15(c)(1) and 11.15(c)(3) and amended 24X Rule 11.15(c)(2), all to
reflect the amended hours for the 24X Market Session. Pursuant to 24X
Rule 11.15(c), 24X will pause trading on Monday, Tuesday, Wednesday and
Thursday at 7 p.m.,\326\ during the 24X Market Session at such other
times that the Exchange determines is necessary for technological or
other purposes,\327\ and if the primary listing exchange determines to
halt trading or delay the start of trading in one of its listed
securities.\328\
---------------------------------------------------------------------------

\326\ See 24X Rule 11.15(c)(2).
\327\ See 24X Rule 11.15(c)(4).
\328\ See 24X Rule 11.15(c)(5).
---------------------------------------------------------------------------

With respect to regulatory halts, several commenters questioned how
market surveillance and trading halts, including regulatory trading
halts, would be handled in the 24X Market Session.\329\ Specifically,
one commenter stated that 24X's proposal raised a series of
surveillance questions, including (i) how 24X will manage real-time
surveillance during the 24X Market Session, (ii) how the existing
surveillance, trading halt, and trade review infrastructure--one in
which primary listing markets perform real-time surveillance of
securities listed on their markets and implement trading halts and
pauses for those securities during their hours of operation--will
intersect with the proposed 24X Market Session, including how 24X would
coordinate with other exchanges, and (iii) the impact that such trading
will have on investors, listed companies, and other market
participants.\330\ Similarly, other commenters expressed concerns about
regulatory halts, including possible unanticipated or unintended
effects on primary listing markets and issuers.\331\ One of these
commenters stated that the expanded trading hours would interfere with
exclusive SIPs' ``periodic testing and maintenance, which currently
occur at times when the exchanges are closed.'' \332\ Another commenter
generally supported the proposed trading halts but recommended that 24X
``revisit trading halts around key disclosures from companies'' if
``they find they can adequately secure the markets around the key
disclosure periods.'' \333\
---------------------------------------------------------------------------

\329\ See Nasdaq Letter at 3, 4; Montone Letter at 6-7; SIFMA
Letter at 8-9; Healthy Markets Letter at 7.
\330\ See Nasdaq Letter at 3. This commenter further stated in
response to the initial Form 1, ``pauses in the trading day allow
for the SIPs to make certain technical changes with little to no
disruption to the markets. We believe the Commission should consider
whether 24X's proposed trading pauses are sufficient to address the
technical implications of 23-hour trading sessions.'' Id. See also
Healthy Markets Letter at 7.
\331\ See SIFMA Letter at 8-9; Healthy Markets Letter at 7.
\332\ See SIFMA Letter at 8.
\333\ See Montone Letter at 6-7.
---------------------------------------------------------------------------

In response to commenters' concerns about regulatory halts,\334\
24X stated that it intends to surveil all of its trading sessions,
including the 24X Market Session, in the same manner.\335\ 24X stated
that it will coordinate with the primary listing markets to halt
trading in a security when the primary listing market halts trading in
the security.\336\ In addition, in Amendment No. 1, 24X proposed to
revise its trading halt rules related to the primary listing market to
clarify that Rule 11.15(c)(5) will apply during all of its trading
sessions.\337\ Specifically, 24X proposed to add language to 24X Rule
11.15(c)(5) that if trading in a security is halted by the primary
listing market before the 24X Market Session and continuing into the
24X Market Session, or during the 24X Market Session, the Exchange will
halt trading in the security until trading resumes on the primary
listing market for the security.\338\
---------------------------------------------------------------------------

\334\ See supra notes 329-330 and accompanying text.
\335\ See 24X Letter II at 8.
\336\ See 24X Letter II at 8.
\337\ See 24X Rule 11.15(c)(5)
\338\ See 24X Rule 11.15(c).
---------------------------------------------------------------------------

24X's rules, as amended, governing trading halts related to
corporate news and announcements will track the trading halts imposed
by the primary listing markets. To the extent that material corporate
news is released during the 24X Market Session and the primary listing
market does not impose trading halts, the requirements of 24X Rule
3.21(e) \339\ and 24X Rule 3.21(i) \340\ that disclosures be provided
to investors relating to the risks associated with news announcements
and the additional risks of trading in the 24X Market Session,
respectively, will help to ensure that market participants, including
investors, are informed about the potential risks associated with
trading during that time period. 24X's rules governing trading pauses,
coupled with its Rule 3.21,\341\ are consistent with the Exchange Act
and, in particular, the section 6(b)(5) requirement that an exchange's
rules be designed to promote

[[Page 97110]]

just and equitable principles of trade, remove impediments to and
perfect the mechanisms of a free and open market and a national market
system, and protect investors and the public interest.
---------------------------------------------------------------------------

\339\ See 24X Rule 3.21(e) (stating, ``[n]ormally, issuers make
news announcements that may affect the price of their securities
after Regular Trading Hours. Similarly, important financial
information is frequently announced outside of Regular Trading
Hours. In Extended Hours Trading, these announcements may occur
during trading, and if combined with lower liquidity and higher
volatility, may cause an exaggerated and unsustainable effect on the
price of a security.'').
\340\ See 24X Rule 3.21(i)(1) through (6).
\341\ See infra section III.D.2.e. (discussing customer
disclosures relating to risks of the 24X Market Session).
---------------------------------------------------------------------------

Regarding technology halts, one commenter on the 24X Market
Session, as originally proposed, stated that testing for the exclusive
SIP of the UTP Plan currently occurs at times which would overlap
``with a portion of the 24X Market Session, and 24X has not explained
how it will operate during the overlapping time.'' \342\ In Amendment
No. 2, 24X has amended the 24X rules for the 24X Market Session to
exclude trading on weekends. This amendment addresses concerns about
conflicts with industry-wide testing, ``which currently occur[s] at
times when the exchanges are closed.'' The trading pauses provided in
24X Rule 11.15(c), as amended \343\ should be sufficient to permit 24X
to address the technical implications of a 23-hour trading day and will
facilitate industry-wide testing, and internal market testing and
systems updates and improvements.
---------------------------------------------------------------------------

\342\ See Nasdaq Letter at 4; see also SIFMA Letter at 8.
\343\ As discussed above, 24X proposed in Amendment No. 2 to
limit the hours of operation of the 24X Market Session and, because
the 24X Market Session will not operate on Saturdays, 24X further
proposed in Amendment No. 2 to remove 24X Rule 11.15(c)(1) to delete
the proposed Saturday morning trading pauses.
---------------------------------------------------------------------------

d. Securities Eligible for Trading During the 24X Market Session
In its initial Form 1, 24X proposed to limit the securities that
would be available for trading during the 24X Market Session.
Specifically, proposed 24X Rule 11.2 specified that any class of
securities listed or admitted to unlisted trading privileges on the
Exchange would be eligible to be traded during the Pre-Market Session,
Core Market Session and Post-Market Session, while in the 24X Market
Session, trading would be limited to any security in the Nasdaq-100
Index, S&P 500 Index, Russell 2000 Index and the top 50 exchange-traded
funds by average daily volume during a given month, as determined by
the Exchange. Proposed 24X Rule 11.2 also included a notice provision
for securities that might be added to, or removed from, being eligible
to trade during the 24X Market Session. Finally, proposed 24X Rule 11.2
initially would have allowed Exchange members to request that
securities be made eligible for trading during the 24X Market
Session.\344\
---------------------------------------------------------------------------

\344\ One commenter stated that proposed 24X Rule 11.2 describes
how exchange-traded funds will be ``addressed in terms of listing,''
but that ``24X should give a similar explanation of how mutual funds
will be handled in terms of listing and pricing.'' Montone Letter at
8. As discussed above, 24X will not be a listing market. See 24X
Rule 14.1. The commenter also stated that mutual funds may need to
be priced at a different time of day if trading evolved into a 23-
hour format. See Montone Letter at 8. In response, 24X stated, and
the Commission agrees, that ``the determination of how and when
pricing decisions for mutual funds would be made by the mutual funds
in accordance with relevant legal requirements, not by 24X.'' 24X
Letter II at 19. 24X further stated, and the Commission agrees, that
the ``24X Market Session does not present new issues regarding the
timing of the pricing of mutual funds'' because ``trading already
takes place on exchange today during pre-market sessions and post-
market sessions (including overnight in the OTC market)'' and
``mutual funds have already faced such timing decisions.'' Id.
---------------------------------------------------------------------------

One commenter stated that the proposal was ``wise in limiting the
trading to certain well-known NMS stocks.'' \345\ Another commenter
stated that 24X did not adequately justify its proposal to limit the
securities eligible for trading in the 24X Market Session.\346\ Another
commenter stated that 24X should provide more transparency about the
proposed notice of securities that would be available to trade because
the commenter stated that a ``lack of timely information'' about the
securities available to trade ``runs the risk of material trading
risks, including higher volatility and lower liquidity.'' \347\
---------------------------------------------------------------------------

\345\ See Montone Letter at 6.
\346\ See SIFMA Letter at 8.
\347\ See Nasdaq Letter at 3. See also SIFMA Letter at 8;
Healthy Markets Letter at 10.
---------------------------------------------------------------------------

In Amendment No. 1, 24X amended 24X Rule 11.2 to remove the limit
on the securities eligible for trading during the 24X Market Session.
As amended, 24X Rule 11.2 will allow any securities listed or admitted
to trading pursuant to UTP to be eligible to trade on 24X. In other
words, 24X Rule 11.2 was amended to make the eligibility requirements
for the trading of securities during the 24X Market Session the same as
the other three market sessions (i.e., Pre-Market Session, Core Market
Session and Post-Market Session). According to 24X, expanding the
securities eligible to trade during the 24X Market Session will allow
24X Members and their customers to manage their security lists, and
ensure continuity of eligible securities across trading sessions, which
will reduce potential trading complexities and investor inquiries about
eligible securities.\348\ 24X also stated that expanding the securities
eligible to trade will allow it to compete with ATSs and other markets
that operate in the overnight hours.\349\ Finally, 24X stated that the
amended rule will prevent the exclusion of securities that may be
appropriate for trading in the 24X Market Session, such as
international ETFs.\350\
---------------------------------------------------------------------------

\348\ See 24X Letter II at 11.
\349\ See id.
\350\ See id.
---------------------------------------------------------------------------

24X Rule 11.2 as amended, is consistent with section 6(b)(5) of the
Exchange Act in that it will promote just and equitable principles of
trade, facilitate transactions in NMS stocks, remove impediments to,
and facilitate transactions in NMS stocks and remove impediments to and
prefect the mechanism of a free and open market and a national market
system. While one commenter supported limiting the securities eligible
for trading in the 24X Market Session,\351\ 24X's market structure
choice not to limit the securities eligible for trading in the 24X
Market Session will reduce the complexity of the 24X market structure,
compared to the original proposal, by allowing securities to be
eligible continuously throughout the four 24X trading sessions. In
addition, 24X Members and their customers will have control over the
trading strategies they may choose to implement. Finally, expanding the
number of securities that are eligible to be traded during the 24X
Market Session should help to promote competition between trading
venues that may be operating during the times covered by the 24X Market
Session, which will ultimately benefit investors.
---------------------------------------------------------------------------

\351\ See supra note 345 and accompanying text.
---------------------------------------------------------------------------

e. Customer Disclosures Pertaining to Extended Hours Trading, Including
the 24X Market Session
24X proposed to require that 24X Members make certain disclosures
to investors concerning risks associated with trading during Extended
Hours Trading.\352\ In 24X Rule 3.21, 24X proposed to require the same
disclosures as those required by other SROs relating to extended hours
trading.\353\ Specifically, SRO rules require firms to provide
disclosures to customers that extended hours trading ``involves
material trading risks, including the possibility of lower liquidity,
high volatility, changing prices, unlinked markets, an exaggerated
effect from news announcements, wider spreads.'' \354\
---------------------------------------------------------------------------

\352\ See 24X Rule 3.21.
\353\ See, e.g., MEMX Exchange Rule 3.21; Cboe EDGX Rule 3.21;
NYSE Arca Rule 7.34-E(d)(3); Nasdaq Section 20; FINRA Rule 2265.
\354\ See 24X Rule 3.21. See also, e.g., MEMX Exchange Rule
3.21, Cboe EDGX Rule 3.21, NYSE Arca Rule 7.34-E(d)(3), Nasdaq,
Equity 2, Section 20; FINRA Rule 2265.
---------------------------------------------------------------------------

While one commenter stated, in response to a question posed by the
Commission in the OIP, that the proposed disclosures would be

[[Page 97111]]

sufficient to highlight the unique risks posed to investors during the
24X Market Session, as originally proposed,\355\ others disagreed.\356\
One of these commenters stated that existing customer disclosures would
not provide the necessary protection for investors given the heightened
risks associated with the 24X Market Session.\357\ Similarly, another
commenter stated that it cannot ``comprehend how any disclosure that
would be sufficiently short and clear to be comprehensible would
adequately capture the sheer volume of potential new risks or
regulatory gaps in which such trading would occur.'' \358\
---------------------------------------------------------------------------

\355\ See Montone Letter at 6 (further stating, ``[a]ny person
looking to trade during the 24X Market Session will be aware of the
numerous risks they face in trading during this period.'').
\356\ See SIFMA Letter at 4; Healthy Markets Letter at 9.
\357\ See SIFMA Letter at 4.
\358\ See Healthy Markets Letter at 9.
---------------------------------------------------------------------------

In response, 24X stated that it agreed with commenters that it is
appropriate to require customer disclosures relating to the
``heightened'' risks inherent in Extended Hours Trading.\359\ In
Amendment No. 1, 24X proposed ``expanded'' investor disclosures
relating to additional potential risks of its 24X Market Session.\360\
Specifically, the new paragraph (i) added to 24X Rule 3.21 will
highlight the following additional potential risks related to trading
during the 24X Market Session, including the risks that: (1) the
primary listing markets may not be open; (2) consolidated market data
may not be available; (3) there may be limited or different regulatory
protections during the 24X Market Session; (4) there may be limited
trading alternatives during the 24X Market Session; (5) with near
continuous trading, there may be greater risk related to system
maintenance, testing and pauses and resumption in trading; and (6) the
24X Market Session is novel and may present additional unforeseen risks
in addition to those discussed above.\361\ In Amendment No. 2, 24X
amended 24X Rule 3.21 to remove the disclosure related to the risk that
consolidated data may not be available because pursuant to amended 24X
Rule 1.5(c), 24X will not begin operation of its 24X Market Session
unless the exclusive SIPs are able to concurrently collect,
consolidate, process and disseminate consolidated data.\362\ Thus, the
proposed disclosure stating the risk that there might not be
information disseminated by the exclusive SIPs during the 24X Market
Session is no longer necessary.
---------------------------------------------------------------------------

\359\ See 24X Letter II at 2.
\360\ See 24X Rule 3.21(i).
\361\ Id.
\362\ See 24X Rule 1.5(c). Under the rule, 24X will not operate
the 24X Market Session until the 24X Market Session Proposed Rule
Change has been approved or has otherwise become effective.
---------------------------------------------------------------------------

The expanded proposed customer disclosures set forth in 24X Rule
3.21, as amended, should address commenters' concerns because these
disclosures will provide investors with important information that
should help to inform their decisions as to whether trading during
extended hours, including the 24X Market Session, is suitable for them.
In addition, the expanded customer disclosures set forth in 24X Rule
3.21, as amended, are consistent with the Exchange Act and, in
particular, the section 6(b)(5) requirement that an exchange's rules be
designed to promote just and equitable principles of trade, remove
impediments to and perfect the mechanisms of a free and open market and
a national market system, and protect investors and the public
interest. The disclosures will help provide notice to market
participants, including investors, about the specific risks associated
with Extended Hours Trading.
f. Other Comments
24X proposed 24X Rule 11.12 related to the clearance and settlement
of trades. Under this rule, 24X will require that all transactions
through the facilities of the Exchange be automatically cleared and
settled through a registered clearing agency using a continuous net
settlement system when the continuous net settlement system is open.
When the continuous net settlement system is closed, 24X will require
trades to be processed for clearing and settlement as soon as the
relevant clearing agency reopens the continuous net settlement system.
One commenter questioned the settlement cycle of trades in the
context of the 24X Market Session, as originally proposed.\363\ The
commenter stated that a trade executed at 11:59 p.m. would settle the
next day and a trade that executed just two minutes later, at 12:01
a.m., would not settle until the following day (assuming consecutive
settlement dates).\364\ The commenter also stated that the 24X Market
Session, as originally proposed, raises additional operational and risk
management questions related to the clearance and settlement processes
for trades that occur overnight and on non-business days operated by
registered clearing agencies, including the National Securities
Clearing Corporation (``NSCC'').\365\ In its second letter, the
commenter stated that all default risks and related clearance,
settlement, payment and delivery risks would be borne by broker-dealers
until trades were transferred to DTCC for novation, which would impose
significant counterparty risk on broker-dealers.\366\ The commenter
stated that retail investors ``would be unaware'' that trades executed
during the 24X Market Session would be excluded from the NSCC and
DTCC's real-time guarantee model.\367\ The commenter stated that delays
in reporting overnight trades to NSCC also impact margin requirements,
including margin calculations.\368\
---------------------------------------------------------------------------

\363\ See SIFMA Letter at 8. Specifically, the commenter stated
that for certain transactions on Fridays, Saturdays, Sundays, and
holidays, the day after the trade might not be a business day and
thus the settlement periods would be longer than T+1. As noted
above, in Amendment No. 2, 24X amended the 24X rules for the 24X
Market Session so that 24X will not offer trading on weekends and
holidays. The commenter submitted a second comment that raised
questions about clearance and settlement of trades in the amended
24X Market Session, as well as the 24X Market Session as originally
proposed. See SIFMA Letter II.
\364\ See SIFMA Letter at 8.
\365\ Id. The Depository Trust and Clearing Corporation
(``DTCC'') is the holding company for the three registered clearing
agencies, including NSCC and the Depository Trust Company (``DTC''),
each of which provides clearance and settlement services for U.S.
equities. The commenter further questioned whether the NSCC (1)
would require an additional deposit to support overnight activity;
(2) would process trades that occur on Saturday on the following
Monday or Tuesday; (3) require Monday morning stock loan delivery or
margin calls for weekend trades. The commenter also questioned
whether clearing firms would be able to opt-out of clearing extended
hours (pre-, post-, and overnight) activity. Id. These
interpretative questions about NSCC rules should be directed to the
NSCC, an SRO. As discussed throughout, trading of NMS stocks occurs
overnight in the OTC market on ATSs. The commenter did not detail
how the 24X proposal, as amended, raises new or novel concerns as
compared to existing overnight trading sessions.
\366\ See SIFMA Letter II at 5.
\367\ See id.
\368\ See SIFMA Letter II at 6.
---------------------------------------------------------------------------

24X responded that the commenter's concerns related to the
clearance and settlement of trades ``have long existed and are
contemplated within existing NSCC/DTCC rules.'' \369\ 24X also stated
that it understood, from the DTCC, that the operational and clearance
and settlement risks related to its proposed overnight and weekend
trading are manageable using existing risk management rules and
protocols,\370\ and that ``DTCC plans to implement additional changes
to its processes going forward to further narrow the risks presented by
extended trading hours.'' \371\ Further, 24X stated that trades
occurring within a matter of

[[Page 97112]]

minutes that could settle on different days is a ``natural outgrowth''
of the T+1 settlement process because there must be a time that
delineates the end of a trading day.\372\ Finally, 24X stated that,
``as with overnight trading on ATSs today, broker-dealers concerned
about potential operational and clearance and settlement risks related
to such trading are not required to trade in the 24X Market Session.''
\373\
---------------------------------------------------------------------------

\369\ See 24X Letter II at 17.
\370\ See 24X Letter II at 18.
\371\ See 24X Letter IV at 5.
\372\ See 24X Letter II at 18.
\373\ See 24X Letter IV at 5.
---------------------------------------------------------------------------

The 24X rules related to clearance and settlement of transactions
on 24X are consistent with the requirements of section 6(b)(5) of the
Exchange Act that provides, among other things, that the rules of an
exchange must foster cooperation and coordination with persons engaged
in regulating, clearing, settling, processing information with respect
to, and facilitating transactions in securities.\374\ Further, the
Commission concludes that while risk cannot be eliminated, it can be
appropriately managed as it relates to: (1) the proposed operation of
the 24X Market Session and (2) the ability of the relevant clearing
agencies for equities, NSCC and the DTC, to address any potential
credit, market, and liquidity risks associated with trades submitted by
the Exchange. While one commenter submitted several interpretative
questions related to how clearance and settlement of trades will occur
during the 24X Market Session, the commenter did not explain how the
clearance and settlement of 24X Market Session trades would be
different from trades that occur in the overnight sessions in the OTC
market.\375\ Further, the commenter stated that broker-dealers will
carry all default risks and related clearance, settlement, payment and
delivery risks until trades are reported. Broker-dealers may assess the
risks and benefits of participating in the 24X Market Session. Although
a commenter stated that investors would be unaware of the risks held by
broker-dealers, 24X Rule 3.21(g) requires disclosure of the risk that
certain financial market infrastructure, including ``the relevant
clearing agency'' and ``certain other providers of settlement
services,'' may be closed for business during the Extended Hours
Trading sessions. Finally, the concerns of certain commenters about
weekend trading are no longer relevant because 24X has amended its
rules to eliminate weekend trading.
---------------------------------------------------------------------------

\374\ 15 U.S.C. 78f(b)(5).
\375\ As discussed above, the 24X Market Session will not
operate until the 24X Market Session Proposed Rule Change has been
approved or otherwise become effective. Market participants should
direct their interpretative questions about the rules of other SROs,
including NSCC or DTC, to those SROs.
---------------------------------------------------------------------------

24X proposed several rules that are reasonably designed to ensure
compliance with Regulation SHO. 24X Rule 11.9(a)(1) requires the
execution price of an order with short sale instruction to be above the
current national best bid if a short sale price test restriction under
Rule 201 is in effect, unless the order is marked short exempt; and 24X
Rule 11.9(a)(5) requires all orders to sell short to include a short
sale instruction. 24X Rule 11.23 relates to Short Sale Circuit Breakers
and sets forth that once a Short Sale Circuit Breaker pursuant to Rule
201 of Regulation SHO has been triggered during Regular Trading Hours,
the price test restriction of Rule 201 will be in place for the
applicable covered security for the remainder of the trading day on
which the Short Sale Circuit Breaker is triggered, through the next
U.S. Business Day after the trading day on which the Short Sale Circuit
Breaker is triggered, and until 4 a.m. on the U.S. Business Day after
the next U.S. Business Day after the trading day on which the Short
Sale Circuit Breaker is triggered, unless the listing market for the
covered security provides a notification via the exclusive SIPs
indicating that the price test restriction is no longer in effect at a
time earlier than 4 a.m. on the U.S. Business Day after the next U.S.
Business Day after the trading day on which the Short Sale Circuit
Breaker is triggered. 24X Rule 13.2 requires borrowing and deliveries
to be effected in accordance with Rule 203 of Regulation SHO and
provides that the 24X incorporates by reference Rules 200 and 203 of
Regulation SHO.
One commenter questioned how would compliance with the circuit
breaker requirements set forth in Rule 201(b)(1)(ii) of Regulation SHO
be achieved if the exclusive SIPs were not in operation during the 24X
Market Session.\376\ The commenter also stated that the close-out
requirement for the failure to deliver, set forth in Rule 204 of
Regulation SHO, could be delayed due to the extension of trading hours
to non-business days.\377\ 24X responded that it would comply with Rule
201 of Regulation SHO whenever it is deemed to apply.\378\
---------------------------------------------------------------------------

\376\ See SIFMA Letter at 5.
\377\ See id.
\378\ See 24X Letter II at 14.
---------------------------------------------------------------------------

The 24X rules are consistent with the Exchange Act as they
incorporate Regulation SHO requirements. Accordingly, 24X rules are
consistent with section 6(b)(5) of the Exchange Act because they are
designed to prevent fraudulent and manipulative acts and practices and
promote just and equitable principles of trade. Further, in response to
commenter's concerns about potential delays in the close out
requirement due to the initially proposed 24X Market Session operating
during non-business days,\379\ the 24X Market Session, as amended, will
not provide for trading on non-U.S. Business Days. In response to the
question raised by the commenter about compliance with the circuit
breaker requirements if the exclusive SIPs were not in operation, in
Amendment No. 2, 24X amended the rules governing the 24X Market Session
so that 24X will not commence operations of the 24X Market Session
until the Equity Data Plans are able to collect, consolidate, process
and disseminate consolidated data during the 24X Market Session
designated hours.\380\
---------------------------------------------------------------------------

\379\ See supra notes 376-377 and accompanying text.
\380\ See 24X Rule 1.5(c), which requires 24X to file the 24X
Market Session Proposed Rule Change.
---------------------------------------------------------------------------

24X proposed 24X Rule 11.13 governing 24X's limitation of liability
arising from use of Exchange systems or facilities.\381\ Two commenters
commented on 24X's rule.\382\ One commenter stated that 24X failed to
appropriately justify its proposed limitation of liability.\383\ This
commenter stated that 24X's limitation of liability provision is
modeled on a similar provision adopted in 2005 and that subsequent
significant equity market structure changes have rendered the proposed
provision inadequate, particularly given the 24X Market Session, as
originally proposed.\384\ One of these commenters further stated that
24X provides no support for the Commission to find the limitation of
liability provisions consistent with the Exchange Act or the public
interest, and that ``[a]n even greater level of scrutiny regarding the
proposed 24X limitation of liability is warranted due to the additional
operational risks associated with operating a near 24x7 market
center.'' \385\ The other commenter stated that ``[n]otably, 24X
intends to operate for significantly more trading hours and trading
days than other national securities exchanges, and it has not explained
why the liability caps

[[Page 97113]]

included in its proposed rule are reasonable or appropriately tailored
to address the risk of system errors or malfunctions on its market
across these longer periods.'' \386\
---------------------------------------------------------------------------

\381\ See 24X Rule 11.13.
\382\ See FIA PTG Letter II and SIFMA Letter II.
\383\ See FIA PTG Letter II at 1-3.
\384\ Id. at 2-3; see also SIFMA Letter II at 8-9.
\385\ FIA PTG Letter II at 2 (stating, as an example, ``in the
event of a technological error during the 24X Market Session, there
may be limited staff available to quickly resolve a critical issue,
increasing the likelihood a malfunction will cause harm and persist
over an extended period of time.'').
\386\ See SIFMA Letter II at 9.
---------------------------------------------------------------------------

In response to the commenter's concerns, 24X stated that it
believes that the 24X rule complies with the Exchange Act.\387\ 24X
continued that other exchanges operate pursuant to the ``same rule''
and that ``there is no basis for reaching a different conclusion in the
context of 24X's Form 1 application.'' \388\ 24X also stated that ``the
liability caps were not established based on the number of trading
hours on the exchange.'' \389\
---------------------------------------------------------------------------

\387\ See 24X Letter III at 5.
\388\ Id.
\389\ See 24X Letter IV at 5.
---------------------------------------------------------------------------

The limitation of liability provisions of 24X Rule 11.13 are
consistent with the Exchange Act requirement that the rules of an
exchange be designed to promote just and equitable principles of trade
and not impose any burden on competition not necessary or appropriate
in furtherance of the purposes of the Exchange Act.\390\ 24X Rule 11.13
is substantively similar to other exchanges' limitation of liability
provisions previously approved by the Commission and applicable to
other exchanges that have extended hours trading sessions.\391\ In
addition, with respect to the commenters' statements that greater
exchange liability would be appropriate given the ``additional
operational risks associated with operating a near 24x7 market
center,'' 24X will be required to comply with its obligations under the
Exchange Act during all hours that it is operating. While 24X has more
hours of operations as compared to other exchanges, 24X will have SRO
obligations during the 24X Market Session as it does during its other
trading sessions. Further, as discussed below, 24X will be an SCI
entity that must comply with Regulation SCI.\392\ While commenters
submitted comments on the 24X Form 1, both commenters stated that the
limitation of liability caps on all exchanges should be reevaluated. As
stated above, the Commission, consistent with its oversight of the
national market system, will continue to monitor the national market
system. However, the monitoring of market developments does not
foreclose Commission action on the 24X Form 1, which for reasons
discussed throughout, satisfies the requirements of the Exchange Act.
---------------------------------------------------------------------------

\390\ 15 U.S.C. 78f(b)(5) and (8).
\391\ See e.g., MEMX Exchange Rule 11.14; LTSE Exchange Rule
11.260.
\392\ See section III.E.2.
---------------------------------------------------------------------------

One commenter requested interpretative guidance on the application
of Commission Rule 605 and Rule 610(d) and FINRA Rule 5320.08 to the
proposed 24X trading sessions (i.e., Pre-Market Session, Post-Market
Session, 24X Market Session and Core Market Session).\393\ These rules
are clear as to their application during different sessions and the
commenter did not state why the 24X Form 1 raised unique interpretative
questions compared to the extended hours sessions on other national
securities exchanges that have operated for several years.
---------------------------------------------------------------------------

\393\ See SIFMA Letter II at 13. This commenter posed a number
of questions that were interpretive in nature or technical and
related to implementation of extended hours trading. As discussed
throughout, there are existing extended hours trading sessions on
other exchanges and the rules that are applicable during extended
hours sessions are clear. The commenter stated that a broader
consideration of extended hours trading in the national market
system should be conducted. See supra section III.D.2.a (discussing
comments requesting a roundtable or broader consideration of
extended hours trading). As discussed above, the Commission
continues to monitor the national market system, including the
expansion of trading hours in the equity market.
---------------------------------------------------------------------------

E. Technology Agreement With MEMX Technology

1. Delivery, Licenses and Services Agreement (``DLSA'')
The Exchange will utilize trading technology and systems
(collectively, the ``Technology and System'') developed by MEMX
Technologies, LLC (``MEMX Technologies''),\394\ a subsidiary of MEMX
Holdings LLC, and provided to the Exchange pursuant to a DLSA between
MEMX Technologies and the Exchange.\395\ Specifically, pursuant to the
DLSA, MEMX Technologies will provide technology support services to
24X, which will include ``(1) the development and testing of software
and hardware necessary to operate the matching engine and connectivity
to other exchanges via a third-party routing broker(s) and third party-
developed functions (including clearing, custody, and client
connectivity), (2) the provision of technical support in order for the
Exchange to operate and monitor the Exchange; and (3) the provision of
ongoing system availability commitments, updates, fixes, and technology
support.'' \396\ MEMX Technologies will support intra-day compliance
monitoring by 24X and provide timely reporting to 24X of any potential
Regulation SCI events or other operational issues with the System.\397\
---------------------------------------------------------------------------

\394\ 24X does not own the Technology and System but states that
it has obtained all necessary licenses and authorizations from MEMX
Technologies in order for 24X and its Members and Users to fully
utilize the Technology and System. See Form 1, Exhibit E.
\395\ See Form 1, Exhibit E. Among other things, the DLSA sets
forth a multi-year term with automatic renewal provisions that
requires MEMX Technologies to deliver the Technology and System and
run industry connectivity testing and other functional-based
testing. See id. The DLSA also provides for transition services to
the extent either party decides to terminate the arrangement. See
id.
\396\ See Form 1, Exhibit C.
\397\ See id.
---------------------------------------------------------------------------

All services provided to the Exchange by MEMX Technologies will be
based upon requirements and instructions determined by the
Exchange.\398\ Although MEMX Technologies would provide the technology
support services, 24X will be responsible for operating and monitoring
its Exchange-related Technology and System and administering the rules
of the Exchange and other rules and regulations applicable to the
Exchange.\399\ To ensure logical and physical separation from MEMX
Technologies and its affiliates, the Technology and System will operate
a separate instance of MEMX Technologies' core matching engine
technology and software, utilizing separate servers from the MEMX
Exchange system and separate connections for 24X Members to connect to
24X.\400\ Under the terms of the DLSA, 24X may request MEMX
Technologies to develop and implement (for a fee to be determined by
the parties) technology changes that change the operation of the 24X
Technology and System. 24X is not obligated to agree to, accept, or
adopt changes to the Technology and System that are not essential to
the operation of its instance of the Technology and System.\401\
Additionally, 24X stated that the ``trading platforms operated by MEMX
Technologies (including 24X National Exchange, LLC, MEMX Exchange, and
any other exchanges or trading platforms operated by MEMX Technologies)
currently are and will be segregated to ensure that 24X is not deemed
to be a facility of MEMX Exchange.'' \402\ MEMX Technologies will not
use or disclose information or data (i) about or originating with 24X
in its dealings with MEMX Exchange or any other platform or (ii) about
or originating with MEMX Exchange or any other platform in its dealing
with 24X.\403\
---------------------------------------------------------------------------

\398\ See id.
\399\ See id.
\400\ See Form 1, Exhibit E.
\401\ See id.
\402\ See Form 1, Exhibit C.
\403\ See id.

---------------------------------------------------------------------------

[[Page 97114]]

One commenter stated that the proposal by 24X to outsource its
technology needs, along with the maintenance and remediation of
technology issues, to MEMX Technologies ``is distinct from the existing
common practice of exchanges and other venues to outsource discrete
technology elements to individual vendors based on the expertise
provide by each vendor, subject to oversight of the vendors by the
exchange as required by Regulation SCI.'' \404\ The commenter further
stated that other ``existing examples do not involve exclusive reliance
on a single technology provider (affiliated with one exchange) for
multiple U.S. registered exchange[s].'' \405\
---------------------------------------------------------------------------

\404\ See IEX Letter at 2.
\405\ See IEX Letter at 3.
---------------------------------------------------------------------------

This commenter's statements were disputed by another commenter, who
stated that ``having a common technology platform underlying multiple
registered exchanges is hardly a new phenomenon. Of the sixteen
currently licensed U.S. equities exchanges, twelve are operated by just
three exchange groups that each operate several independently-
registered exchanges using a common technology platform.'' \406\ The
commenter further stated that use of vendors ``allows competitors of
all sorts to focus on their core business, whether that's facilitating
the move to a 24-hour trading model, . . . or in attracting listings
from corporate issuers.'' \407\ 24X responded that ``the use of a
common technology platform for multiple registered exchanges is a
common practice. 24X understands that three existing exchange groups
operate several independently-registered national securities exchanges
using a common technology platform.'' \408\ The Commission agrees that
the outsourcing of an exchange's technology platform to another entity
is not novel.\409\
---------------------------------------------------------------------------

\406\ See MEMX Letter at 2. The commenter further stated, that
as an example, ``Nasdaq technology is also used to operate at least
one ATS that is meets the volume threshold for compliance with
Regulation SCI; the securities information processor (``SIP'') for
Tape C stocks; and two of three trade reporting facilities
(`TRFs').'' 24X agreed with this statement. See 24X Letter IV at 2-
3.
\407\ See MEMX Letter at 4.
\408\ See 24X Letter III at 4.
\409\ See Securities Exchange Act Release No. 100783 (Aug. 20,
2024), 89 FR 68481 (Aug. 26, 2024) (SR-LTSE-2024-03) (``LTSE--MEMX
Technologies Approval Order'') (approval of proposed rule change by
the Long-Term Stock Exchange to transition from its current trading
platform to a new trading platform that uses technology provided by
MEMX Technologies). One commenter had stated that arguments
regarding the use of MEMX's technology have been substantively
addressed by the Commission in the LTSE--MEMX Technologies Approval
Order and that ``the Commission's order addresses the pertinent
legal questions and concludes that this arrangement [between LTSE
and MEMX Technologies] `is consistent with the Exchange Act.' '' See
MEMX Letter at 5. 24X agreed with this commenter's statement. See
24X Letter IV at 3.
---------------------------------------------------------------------------

Two commenters stated that there should be greater clarification on
the relationship between 24X and MEMX Technologies.\410\ A third
commenter expressed concerns about the proposed agreement between 24X
and MEMX Technologies.\411\ One of these commenters stated that the
Exchange would be heavily dependent on MEMX Technologies, and asked
whether MEMX Technologies would be more properly viewed as an owner or
control person for its technology needs.\412\ As the Commission stated
above, MEMX Technologies is a vendor that will provide technology
support services to 24X, to meet requirements established by 24X; MEMX
Technologies has no ownership interest in 24X.\413\ The ultimate
responsibility for regulatory compliance with the Exchange Act and
rules thereunder falls on 24X as the SRO. Nor will MEMX Technologies be
able to assert control over 24X regarding operation of the Technology
and System. Under the terms of the DLSA, as described in the Form 1,
24X is not obligated to agree to, accept, or adopt changes to the
Technology and System that are not essential to the operation of its
instance of the Technology and System.\414\
---------------------------------------------------------------------------

\410\ See Healthy Markets Letter at 9-10; Montone Letter at 5.
\411\ See IEX Letter.
\412\ See Healthy Markets Letter at 9. The commenter also stated
that the arrangement between 24X and MEMX Technologies ``would need
to be public, so that the Commission and public could assess the
conflicts of interests and risks posed by it to the operations of
24X.'' Healthy Markets Letter at 10. A description of the DLSA and
its terms may be found in 24X's Form 1 at Exhibits C and E and have
been subject to notice and public comment. Exhibits C and E to the
Form 1 do not require these contracts to be filed. See Exhibit C
(requiring, among other things, information relating to any entity
with whom the applicant has a contractual or other arrangement
relating to the operation of an electronic trading system to be used
to effect transactions on the exchange) and Exhibit E (requiring a
description of the operation of the exchange). These exhibits
provide sufficient information to assess the proposed arrangement.
\413\ See Form 1, Exhibit C.
\414\ See Form 1, Exhibit E.
---------------------------------------------------------------------------

Another commenter stated that the ``exclusive reliance on a single
vendor raises questions about the availability of resources by [MEMX
Technologies] to fill that role.'' \415\ Similarly, one commenter asked
for clarification as to whether MEMX Technologies ``has the staff and
infrastructure to facilitate 23-hour continuous trading'' \416\ and
stated that there should be ``a detailed reassurance that the
technology underlying the exchange will not breakdown due to a high
user rate and further if the technology does fail, what the procedures
will be to protect the exchange while also safeguarding investors
information and portfolios.'' \417\ 24X in response stated that the
technology it will utilize ``has a proven track record for resiliency,
a track record that should give the SEC and market participants comfort
regarding the reliability of 24X's market offering.'' \418\
---------------------------------------------------------------------------

\415\ See IEX Letter at 2. Although MEMX Technologies will
develop and maintain the Technology and System pursuant to the DLSA,
it is 24X market operations staff that will be responsible for the
daily operations of 24X's market. See Form 1, Exhibit E.
\416\ Montone Letter at 5. One commenter asked whether in the
event of a potentially serious cyber breach of its systems, 24X
would ''be in a position to promptly identify such a breach if it is
entirely reliant on a third party for security and other
technology'' and, once aware, what assistance it would ``require
from its supplier to be able to respond in a timely way that
protects exchange systems and user information.'' See Heathy Markets
Letter at 9. The Commission reiterates that the ultimate
responsibility for regulatory compliance with the Exchange Act and
rules thereunder falls on 24X and should 24X require, the DLSA
provides that 24X may request technology changes from MEMX
Technologies to change the operation of the System. See Form 1,
Exhibit E.
\417\ See Montone Letter at 5.
\418\ 24X Letter III at 4. 24X also agreed with a commenter that
stated that ``the strength of MEMX's technology platform is the
primary reason that 24X, LTSE, and several other trading venues have
contracted with MEMX Technologies to power their trading systems.
MEMX has shown that its technology platform is robust and resilient
day in and day out for the past four years.'' See 24X Letter IV at
2-3 (quoting from MEMX Letter at 2).
---------------------------------------------------------------------------

Another of the commenters stated that 24X's potential use of MEMX
Technologies for operational support raises conflicts concerns and that
the Form 1 ``contains little if any information about management of
conflicts more generally.'' \419\ This commenter stated that there are
no statements or information about the ``nature and extent'' of the
segregation between 24X and MEMX Technologies or the ``financial terms
of 24X's agreement with [MEMX Technologies] and about what type of
separation may exist between [MEMX Technologies] and MEMX.'' \420\ The
commenter further stated that its concerns ``may be magnified to the
extent that other exchanges propose to make use of this same exclusive
`white label' technology solution by the same vendor to meet their
technology needs, as has been widely reported. Under that construction,
[MEMX Technologies] would appear to be performing in effect a
technology utility function for multiple regulated exchanges, but it

[[Page 97115]]

would not be a regulated entity itself, and the Commission would have
limited ability to evaluate, and no ability to control, how it performs
that critical function.'' \421\
---------------------------------------------------------------------------

\419\ See IEX Letter at 2-3.
\420\ See IEX Letter at 3.
\421\ See id.
---------------------------------------------------------------------------

24X, not MEMX Technologies, has regulatory responsibility over the
24X System, and therefore 24X as a SRO is fully responsible for
discharging its obligations as a registered national securities
exchange. The Commission disagrees with the commenter that the Form 1
contains little information about these matters.\422\ 24X has provided
sufficient detail in the Form 1 regarding the relationship between 24X
and MEMX Technologies.\423\ MEMX Technologies will not use or disclose
information or data (i) about or originating with 24X in its dealings
with MEMX Exchange or any other platform or (ii) about or originating
with the MEMX Exchange or any other platform in its dealings with
24X.\424\ Also, the DLSA, among other things, enforces logical and
physical separation from MEMX Technologies and its affiliates in that
the Technology and System will operate a separate instance of MEMX
Technologies' core matching engine technology and software, utilizing
separate servers from MEMX Exchange system and separate connections for
Members to connect to 24X.\425\ Further, 24X will interact with the
MEMX Exchange, including MEMX Exchange's routing broker-dealer, on the
same arms-length commercial terms as 24X interacts with other
registered national securities exchanges and their routing broker-
dealers.\426\ Membership in the MEMX Exchange will not confer any
advantages when trading on 24X (or vice versa), such as faster
connections, lower fees, or preferential treatment of orders on the 24X
System.\427\ Membership in the MEMX Exchange will also not be a
requirement for membership in or connection to 24X (or vice
versa).\428\
---------------------------------------------------------------------------

\422\ See supra note 412.
\423\ See Form 1, Exhibit E. See also 24X Letter II at 15.
\424\ See Form 1, Exhibit C.
\425\ See Form 1, Exhibit E.
\426\ See id.
\427\ See id.
\428\ See Form 1, Exhibit E.
---------------------------------------------------------------------------

After consideration of the disclosures 24X made in its Form 1
application and review of the comments, the Commission finds that 24X's
proposal to utilize technology provided and maintained by MEMX
Technologies is consistent with the Exchange Act, in particular with
section 6(b)(1) of the Exchange Act,\429\ which requires an exchange to
be so organized and have the capacity to carry out the purposes of the
Exchange Act and to comply and enforce compliance by its members and
persons associated with its members with the Exchange Act and the rules
thereunder. The arrangement between 24X and MEMX Technologies, as
described in the 24X Form 1, will enable the Exchange to utilize
trading platform technology that is already in use with an experienced
operator.\430\ However, the terms of the DLSA between 24X and MEMX
Technologies, as described in the Form 1, are reasonably designed not
to confer upon either MEMX Exchange or 24X Members any advantages when
trading on 24X, or vice versa, such as faster connections, lower fees,
or preferential treatment of orders on the 24X System.\431\ Further, as
described in the Form 1, the DLSA will not include the technology or
systems to route orders to the MEMX Exchange or any other
exchange.\432\ 24X will retain responsibility for overseeing the daily
market operations of its trading system; MEMX Technologies will be
responsible for performing all necessary maintenance and remediation of
problems relating to the logical and physical infrastructure, in
accordance with the DLSA.\433\ Therefore, 24X will be capable of
exercising sufficient control over the operation of its Technology and
System, and will be sufficiently independent from MEMX Technologies, to
enable 24X to comply with the requirements under the Exchange Act and
the rules thereunder.
---------------------------------------------------------------------------

\429\ 15 U.S.C. 78f(b)(1).
\430\ See e.g., LTSE--MEMX Technologies Approval Order, supra
note 409.
\431\ See Form 1, Exhibit E.
\432\ 24X may automatically route orders to other exchanges
through the use of one or more routing brokers that are not
affiliated with 24X. See Form 1, Exhibit E. See also 24X Rules 2.11
and 11.10.
\433\ See Form 1, Exhibit E.
---------------------------------------------------------------------------

The provisions of the DLSA described above demonstrate that the
support services provided by MEMX Technology are adequate to enable 24X
to meet its self-regulatory obligations. In order for 24X to perform
its regulatory obligations, the DLSA provides 24X with enumerated audit
rights to review books and records of MEMX Technologies related to the
provision of services under the DLSA, and the ability either to produce
itself, or direct MEMX Technologies to produce, MEMX Technologies
documents and information related to the operation of the Technology
and System to the Commission or other regulators or parties upon
request, subject to appropriate due process.\434\
---------------------------------------------------------------------------

\434\ See id.
---------------------------------------------------------------------------

Finally, 24X will have regulatory responsibility for its trading
Technology and System and will be responsible to fully discharge its
obligations as a national securities exchange. 24X will also be
responsible for its market and cross-market surveillance through the
RSA, described above,\435\ and maintain its independent regulatory
function to oversee the RSA and will not rely on or utilize MEMX
Exchange or its personnel to fulfill any aspect of those obligations on
24X's behalf.
---------------------------------------------------------------------------

\435\ See supra section III.C.2. (discussing 24X's RSA with
FINRA).
---------------------------------------------------------------------------

2. Regulation SCI
As a registered national securities exchange, 24X will be an ``SCI
entity'' responsible for compliance with the requirements of Regulation
Systems Compliance and Integrity (``Regulation SCI'').\436\ Regulation
SCI requires SCI entities to establish written policies and procedures
reasonably designed to ensure that their applicable systems have levels
of capacity, integrity, resiliency, availability, and security adequate
to maintain their operational capability and promote the maintenance of
fair and orderly markets, and that they operate in a manner that
complies with the Exchange Act.\437\ In addition, Regulation SCI
requires SCI entities to take corrective action with respect to SCI
events (defined to include systems disruptions, systems compliance
issues, and systems intrusions), notify the Commission of such events,
and disseminate information about certain SCI events to affected
members or participants (and, for certain major SCI events, to all
members or participants of the SCI entity).\438\ Moreover, Regulation
SCI requires SCI entities to conduct a review of their systems by
objective personnel at least annually, submit quarterly reports
regarding completed, ongoing, and planned material changes to their SCI
systems to the Commission,\439\ and maintain certain books and
records.\440\ It also requires SCI entities to mandate participation by
designated members or participants in scheduled testing of the
operation of their business continuity and disaster recovery plans,
including backup systems, and to coordinate such testing

[[Page 97116]]

on an industry- or sector-wide basis with other SCI entities.\441\
---------------------------------------------------------------------------

\436\ See Securities Exchange Act Release No. 73639 (Nov. 19,
2014), 79 FR 72252 (Dec. 5, 2014) (``Regulation SCI 2014 Adopting
Release'').
\437\ See 17 CFR 242.1001.
\438\ See 17 CFR 242.1002. See also 17 CFR 242.1000 and 17 CFR
242.1006.
\439\ See 17 CFR 242.1003. See also 17 CFR 242.1000.
\440\ See 17 CFR 242.1005. See also 17 CFR 242.1007.
\441\ See 17 CFR 242.1004.
---------------------------------------------------------------------------

Regulation SCI applies to an SCI entity's ``SCI systems,'' which
are systems that directly support any one of six key securities market
functions--trading, clearance and settlement, order routing, market
data, market regulation, and market surveillance (``SCI systems'').
Regulation SCI also applies to ``indirect SCI systems,'' which are any
systems that, if breached, are likely to pose a security threat to SCI
systems. Further, certain SCI systems that are ``critical SCI systems''
are held to certain heightened requirements under Regulation SCI.\442\
---------------------------------------------------------------------------

\442\ See 17 CFR 242.1000 (definitions of ``SCI systems,''
``indirect SCI systems,'' and ``critical SCI systems'').
---------------------------------------------------------------------------

The Exchange has obtained commitments from MEMX Technologies in
connection with the Exchange's engagement of MEMX Technologies to
develop, license, and operate the Technology and System on behalf of
the Exchange to, among other things, address how this arrangement is
consistent with the requirements of Regulation SCI.\443\ The Exchange
acknowledges that as the SCI entity contracting with MEMX Technologies
to provide software and hardware to operate both SCI systems and
indirect SCI systems, 24X will have full responsibility for ensuring
that it is in compliance with all aspects of Regulation SCI, including
the requirements for its backup and recovery capabilities.\444\ In
addition, the DLSA includes commitments from MEMX Technologies as
developer, licensor, and operator of the Technology and System to
cooperate with the Exchange and provide the Exchange with the
information and access that the Exchange reasonably believes will allow
the Exchange to satisfy its obligations under Regulation SCI.\445\
---------------------------------------------------------------------------

\443\ See Form 1, Exhibit E.
\444\ See id.
\445\ See id.
---------------------------------------------------------------------------

One commenter stated that it does ``not see how 24X would be able
to comply with Regulation SCI when it would not be in control of its
own systems. . . . The introduction of another essential business
partner creates previously unprecedented conflicts of interest for a
registered exchange and complications for ownership and governance.''
\446\ Contrary to the commenter's statements, Regulation SCI
contemplates the possibility of an SCI entity's SCI systems and
indirect SCI systems being operated on its behalf by another
entity.\447\ In fact, because SCI entities engage in outsourcing to
varying degrees, the Commission stated when it adopted Regulation SCI,
``if an SCI entity determines to utilize a third party for an
applicable system, it is responsible for having in place processes and
requirements to ensure that it is able to satisfy the requirements of
Regulation SCI for systems operated on behalf of the SCI entity by a
third party.'' \448\
---------------------------------------------------------------------------

\446\ See Healthy Markets Letter at 9.
\447\ See, e.g., Rule 1000 (definitions of SCI systems, critical
SCI systems and indirect SCI systems, each of which contains ``any.
. .systems of, or operated by or on behalf of. . .''). See also
Regulation SCI 2014 Adopting Release, supra note 436 at 72276
(discussing the utilization of third parties by SCI entities for
applicable systems).
\448\ See id. (``The Commission agrees with the comment that an
SCI entity should be responsible for managing its relationship with
third parties operating systems on behalf of the SCI entity through
due diligence, contract terms, and monitoring of third party
performance. However, the Commission believes that these methods may
not be sufficient in all cases to ensure that the requirements of
Regulation SCI are met for SCI systems operated by third parties. .
. . . Instead, if an SCI entity determines to utilize a third party
for an applicable system, it is responsible for having in place
processes and requirements to ensure that it is able to satisfy the
requirements of Regulation SCI for systems operated on behalf of the
SCI entity by a third party. The Commission believes that it would
be appropriate for an SCI entity to evaluate the challenges
associated with oversight of third-party vendors that provide or
support its applicable systems subject to Regulation SCI. If an SCI
entity is uncertain of its ability to manage a third-party
relationship (whether through due diligence, contract terms,
monitoring, or other methods) to satisfy the requirements of
Regulation SCI, then it would need to reassess its decision to
outsource the applicable system to such third party.'').
---------------------------------------------------------------------------

Another commenter questioned how exchanges that are operating
Regulation SCI systems ``in production mode at all hours'' would be
able to comply with Regulation SCI, including requirements for systems
testing.\449\ In its response, 24X set forth a description of how its
policies and procedures comply with the requirements of Regulation
SCI.\450\ The periodic capacity stress testing, testing of system
changes and testing in conjunction with the annual SCI review will be
coordinated by 24X technology operations with MEMX Technologies
personnel, and that vulnerability and threat testing will be
coordinated by 24X with an outside vendor who will perform the tests,
and with MEMX Technologies personnel as necessary.\451\ Finally, as
discussed above, in Amendment No. 2, 24X has modified the 24X Market
System so that trading will not occur on weekends. Accordingly, the
concerns raised about systems testing when Regulation SCI systems would
be ``in production mode at all hours'' are no longer germane. Based on
the statements 24X has made in the Form 1, as amended, and 24X's
response to commenters with respect to its obligations under Regulation
SCI, as well as the provisions in the DLSA as described by 24X in the
Form 1, 24X's proposal regarding the engagement of a third party to
develop, license, and operate the Technology and System is designed to
support the Exchange's ability to comply with its regulatory
obligations under Regulation SCI.
---------------------------------------------------------------------------

\449\ See SIFMA Letter at 8.
\450\ See 24X Letter II at 5.
\451\ See id.
---------------------------------------------------------------------------

F. Discipline and Oversight of Members

As stated above, one prerequisite for the Commission's grant of an
exchange's application for registration is that a proposed exchange
must be so organized and have the capacity to be able to carry out the
purposes of the Exchange Act.\452\ Specifically, an exchange must be
able to enforce compliance by its members and persons associated with
its members with the federal securities laws and rules thereunder and
the rules of the exchange.\453\ Pursuant to an RSA with FINRA, FINRA
will perform many of the initial disciplinary processes on behalf of
24X.\454\ For example, FINRA will investigate potential securities laws
violations, issue complaints, and conduct hearings pursuant to 24X
rules. Appeals from disciplinary decisions will be heard by the 24X
Appeals Committee,\455\ and the 24X Appeals Committee's decision shall
be final.\456\ In addition, the 24X Board on its own initiative may
order review of a disciplinary decision.\457\
---------------------------------------------------------------------------

\452\ See 15 U.S.C. 78f(b)(1).
\453\ See id.
\454\ See supra notes 119-120 and accompanying text. See also
24X Rule 9.8 (stating that 24X and FINRA are parties to a regulatory
services agreement, pursuant to which FINRA will perform certain
functions described in Chapter 9 on behalf of 24X).
\455\ See 24X Rule 8.10(b).
\456\ See id.
\457\ See 24X Rule 8.10(c).
---------------------------------------------------------------------------

The 24X LLC Agreement and 24X rules provide that the Exchange has
disciplinary jurisdiction over its Members \458\ so that it can enforce
its Members' compliance with its rules and the federal securities laws
and rules.\459\ The Exchange's rules also permit 24X to sanction
Members for violations of its rules and violations of the federal
securities laws and rules by, among other things, expelling or
suspending Members, limiting Members' activities, functions, or
operations, fining or censuring Members, or suspending or barring a
person from being associated

[[Page 97117]]

with a Member, or any other fitting sanction.\460\ 24X's rules also
provide for the imposition of fines for certain minor rule violations
in lieu of commencing disciplinary proceedings.\461\ Accordingly, as a
condition to the operation of 24X, a Minor Rule Violation Plan
(``MRVP'') filed by 24X under Exchange Act Rule 19d-1(c)(2) must be
declared effective by the Commission.\462\
---------------------------------------------------------------------------

\458\ See supra note 48.
\459\ See generally 24X LLC Agreement, Article XI and 24X Rules
Chapters 7 and 8.
\460\ See 24X Rule 8.1(a).
\461\ See 24X Rule 8.15.
\462\ 17 CFR 240.19d-1(c)(2).
---------------------------------------------------------------------------

The Commission finds that the 24X LLC Agreement and 24X rules
concerning its disciplinary and oversight programs are consistent with
the requirements of sections 6(b)(6) and 6(b)(7) of the Exchange Act
\463\ in that they provide fair procedures for the disciplining of
members and persons associated with members. The Commission further
finds that the rules of 24X provide it with the ability to comply, and
with the ability to enforce compliance by its Members and persons
associated with its Members, with the provisions of the Exchange Act,
the rules and regulations thereunder, and the rules of 24X.\464\
---------------------------------------------------------------------------

\463\ 15 U.S.C. 78f(b)(6) and (b)(7).
\464\ See 15 U.S.C. 78f(b)(1).
---------------------------------------------------------------------------

G. Trading on 24X Pursuant to Unlisted Trading Privileges

24X does not intend to be a primary listing market for
securities.\465\ Accordingly, 24X has not proposed rules that would
allow it to primarily list any securities at this time. Instead, 24X
has proposed to trade securities pursuant to UTP. 24X Rule 14.1
establishes the Exchange's authority to trade securities on a UTP
basis. 24X Rule 14.1(a) provides that 24X may extend UTP to any
security that is an NMS stock that is listed on another national
securities exchange or with respect to which UTP may otherwise be
extended in accordance with section 12(f) of the Exchange Act.\466\ 24X
Rule 14.1(a) further provides that any such security would be subject
to all 24X rules applicable to trading on 24X, unless otherwise noted.
---------------------------------------------------------------------------

\465\ See Form 1, Exhibit H.
\466\ 15 U.S.C. 78l(f).
---------------------------------------------------------------------------

24X Rule 14.1(b) establishes additional rules for trading of UTP
Exchange Traded Products, which are defined in 24X Rule 1.5(nn).\467\
24X Rule 14.1(b) provides that 24X will distribute an information
circular prior to the commencement of trading in a UTP Exchange Traded
Product that generally would include the same information as the
information circular provided by the listing exchange, including (a)
the special risks of trading the Exchange Traded Product, (b) the
Exchange's rules that would apply to the Exchange Traded Product, and
(c) information about the dissemination of value of the underlying
assets or indices. 24X Rule 14.1(b)(2) establishes certain requirements
for Members that have customers that trade UTP Exchange Traded
Products.\468\ 24X Rule 14.1(b)(4) also establishes certain
requirements for any Member registered as a Market Maker in a UTP
Exchange Traded Product that derives its value from one or more
currencies, commodities, or derivatives based on one or more currencies
or commodities, or is based on a basket or index composed of currencies
or commodities. 24X Rule 14.1(b)(5) provides that the Exchange's
surveillance procedures for Exchange Traded Products traded on the
Exchange pursuant to UTP would be similar to the procedures used for
equity securities traded on the Exchange and would incorporate and rely
upon existing Exchange surveillance systems.
---------------------------------------------------------------------------

\467\ Pursuant to 24X Rule 1.5(nn), the term ``UTP Exchange
Traded Products'' means ``derivative securities products that are
not listed on the Exchange but that trade on the Exchange pursuant
to unlisted trading privileges, including the following: equity
linked notes, investment company units, index-linked exchangeable
notes, equity gold shares, equity index-linked securities,
commodity-linked securities, currency-linked securities, fixed-
income index-linked securities, futures linked securities,
multifactor-index-linked securities, trust certificates, currency
and index warrants, portfolio depository receipts, trust issued
receipts, commodity-based trust shares, currency trust shares,
commodity index trust shares, commodity futures trust shares,
partnership units, paired trust shares, trust units, managed fund
shares, and managed trust securities.''
\468\ 24X Rule 14.1(b)(2)(A) states that 24X Rule 14.1(b)(2)
applies to UTP Exchange Traded Products that are the subject of an
order by the Commission exempting the series from certain prospectus
delivery requirements under Section 24(d) of the Investment Company
Act of 1940 and are not otherwise subject to prospectus delivery
requirements under the Securities Act of 1933. 24X Rule
14.1(b)(2)(B) requires members to provide a written description of
the terms and characteristics of UTP Exchange Traded Products to
purchasers of such securities, not later than the time of
confirmation of the first transaction, and with any sales materials
relating to UTP Exchange Traded Products. 24X Rule 14.1(b)(2)(C)
requires members to provide a prospectus to a customer requesting a
prospectus.
---------------------------------------------------------------------------

The Commission finds that the Exchange's proposed approach to the
trading of securities on a UTP basis, as set forth in 24X Rule 14.1, is
consistent with section 12(f) of the Exchange Act and Rule 12f-5
thereunder.\469\ Rule 12f-5 under the Exchange Act requires an exchange
that extends unlisted trading privileges to securities to have in
effect a rule or rules providing for transactions in the class or type
of security to which the exchange extends unlisted trading
privileges.\470\ 24X Rule 14.1 includes a provision that any security
traded UTP on the Exchange ``shall be subject to all Exchange rules
applicable to trading on the Exchange, unless otherwise noted.'' \471\
The provisions in 24X Rule 14.1 are substantively the same as the
existing rules of the MEMX Exchange.\472\ Accordingly, pursuant to
section 12(f) of the Exchange Act and Rule 12f-5 thereunder, 24X will
be permitted to extend unlisted trading privileges to securities of the
same class, subject to the trading rules of the Exchange.
---------------------------------------------------------------------------

\469\ 15 U.S.C. 78l(f); 17 CFR 240.12f-5.
\470\ See 17 CFR 240.12f-5. See also Securities Exchange Act
Release No. 35737 (Apr. 21, 1995), 60 FR 20891 (Apr. 28, 1995) (File
No. S7-4-95) (adopting Rule 12f-5 under the Exchange Act).
\471\ See 24X Rule 14.1(a).
\472\ See MEMX Exchange Rule 14.1.
---------------------------------------------------------------------------

H. Section 11(a) of the Exchange Act

Section 11(a)(1) of the Exchange Act \473\ prohibits a member of a
national securities exchange from effecting transactions on that
exchange for its own account, the account of an associated person, or
an account over which it or its associated person exercises investment
discretion (collectively, ``covered accounts'') unless an exception
applies. Rule 11a2-2(T) under the Exchange Act,\474\ known as the
``effect versus execute'' rule, provides exchange members with an
exemption from the section 11(a)(1) prohibition. Rule 11a2-2(T) permits
an exchange member, subject to certain conditions, to effect
transactions for covered accounts by arranging for an unaffiliated
member to execute transactions on the exchange. To comply with Rule
11a2-2(T)'s conditions, a member: (i) must transmit the order from off
the exchange floor; (ii) may not participate in the execution of the
transaction once it has been transmitted to the member performing the
execution; \475\ (iii) may not be affiliated with the executing member;
and (iv) with respect to an account over which the member or an
associated person has investment discretion, neither the member nor its
associated person may retain any compensation in connection with
effecting the transaction except as provided in the Rule.
---------------------------------------------------------------------------

\473\ 15 U.S.C. 78k(a)(1).
\474\ 17 CFR 240.11a2-2(T).
\475\ This prohibition also applies to associated persons. Rule
11a2-2(T)(a)(2)(iii), 17 CFR 240.11a2-2(T)(a)(2)(iii). The member
may, however, participate in clearing and settling the transaction.
Rule 11a2-2(T)(b)(3), 17 CFR 240.11a2-2(T)(b)(3).
---------------------------------------------------------------------------

In a letter to the Commission, 24X requested that the Commission
concur with 24X's conclusion that 24X

[[Page 97118]]

Members that enter orders into the 24X trading system satisfy the
conditions of Rule 11a2-2(T).\476\ For the reasons set forth below, 24X
Members entering orders into the 24X trading system could satisfy the
requirements of Rule 11a2-2(T).
---------------------------------------------------------------------------

\476\ See letter from David Sassoon, General Counsel, 24X, to
Vanessa Countryman, Secretary, Commission, dated Feb. 6, 2024 (``24X
11(a) Letter'').
---------------------------------------------------------------------------

Rule 11a2-2(T)'s first condition is that orders for covered
accounts be transmitted from off the exchange floor. In the context of
automated trading systems, the Commission has found that the off-floor
transmission condition is met if a covered account order is transmitted
from a remote location directly to an exchange's floor by electronic
means.\477\ 24X represents that 24X does not have a physical trading
floor, and the 24X trading system will receive orders from members
electronically through remote terminals or computer-to-computer
interfaces.\478\ The 24X trading system satisfies this off-floor
transmission condition.
---------------------------------------------------------------------------

\477\ See, e.g., Nasdaq Order, supra note 57; Securities
Exchange Act Release Nos. 61419 (Jan. 26, 2010), 75 FR 5157 (Feb. 1,
2010) (SR-BATS-2009-031) (approving BATS options trading); 59154
(Dec. 23, 2008), 73 FR 80468 (Dec. 31, 2008) (SR-BSE-2008-48)
(approving equity securities listing and trading on BSE); 57478
(Mar. 12, 2008), 73 FR 14521 (Mar. 18, 2008) (SR-NASDAQ-2007-004 and
SR-NASDAQ-2007-080) (approving Nasdaq Options Market options
trading); 29237 (May 24, 1991), 56 FR 24853 (May 31, 1991) (SR-NYSE-
90-52 and SR-NYSE-90-53) (approving NYSE's Off-Hours Trading
Facility); and 15533 (Jan. 29, 1979), 44 FR 6084 (Jan. 31, 1979)
(``1979 Release'').
\478\ See 24X 11(a) Letter, supra note 476 at 2.
---------------------------------------------------------------------------

The second condition requires that the member and any associated
person not participate in the execution of its order after the order
has been transmitted. 24X represents that at no time following the
submission of an order is a member or an associated person of the
member able to acquire control or influence over the result or timing
of the order's execution.\479\ According to 24X, the execution of a
member's order is determined solely by what quotes and orders are
present in the system at the time the member submits the order, and the
order priority based on the 24X rules.\480\ Accordingly, a 24X member
and its associated persons do not participate in the execution of an
order submitted to the 24X trading system.\481\
---------------------------------------------------------------------------

\479\ See id. at 3. 24X states that a member may cancel or
modify the order, or modify the instructions for executing the
order, after the order has been transmitted, provided that such
cancellations or modifications are transmitted from off an exchange
floor. The Commission has stated that the non-participation
condition is satisfied under such circumstances so long as such
modifications or cancellations are also transmitted from off the
floor. See Securities Exchange Act Release No. 14563 (Mar. 14,
1978), 43 FR 11542 (Mar. 17, 1978) (``1978 Release'') (stating that
the ``non-participation requirement does not prevent initiating
members from canceling or modifying orders (or the instructions
pursuant to which the initiating member wishes orders to be
executed) after the orders have been transmitted to the executing
member, provided that any such instructions are also transmitted
from off the floor'').
\480\ See 24X 11(a) Letter, supra note 476, at 3.
\481\ See, e.g., BATS Order, supra note 57, at 49505; DirectEdge
Exchanges Order, supra note 84, at 13164.
---------------------------------------------------------------------------

The third condition states that the order be executed by an
exchange member who is unaffiliated with the member initiating the
order. The Commission has stated that this condition is satisfied when
automated exchange facilities, such as the 24X trading system, are
used, as long as the design of these systems ensures that members do
not possess any special or unique trading advantages in handling their
orders after transmitting them to the exchange.\482\ 24X represents
that the design of the 24X trading system ensures that no member has
any special or unique trading advantage in the handling of its orders
after transmitting its orders to 24X.\483\ Based on 24X's
representation, the 24X trading system satisfies this condition.
---------------------------------------------------------------------------

\482\ See, e.g., BATS Order, supra note 57 at 49505; DirectEdge
Exchanges Order, supra note 84, at 13164. In considering the
operation of automated execution systems operated by an exchange,
the Commission stated that, while there is not an independent
executing exchange member, the execution of an order is automatic
once it has been transmitted into the system. Because the design of
these systems ensures that members do not possess any special or
unique trading advantages in handling their orders after
transmitting them to the exchange, the Commission has stated that
executions obtained through these systems satisfy the independent
execution condition of Rule 11a2-2(T). See 1979 Release, supra note
477.
\483\ See 24X 11(a) Letter, supra note 476, at 3.
---------------------------------------------------------------------------

Fourth, in the case of a transaction effected for an account with
respect to which the initiating member or an associated person thereof
exercises investment discretion, neither the initiating member nor any
associated person thereof may retain any compensation in connection
with effecting the transaction, unless the person authorized to
transact business for the account has expressly provided otherwise by
written contract that refers to section 11(a) of the Exchange Act and
Rule 11a2-2(T) thereunder.\484\ 24X members trading for covered
accounts over which they exercise investment discretion must comply
with this condition in order to rely on the rule's exemption.\485\
---------------------------------------------------------------------------

\484\ See, e.g., BATS Order, supra note 57, at 49505; DirectEdge
Exchanges Order, supra note 84, at 13164. In addition, Rule 11a2-
2(T)(d) requires a member or associated person authorized by written
contract to retain compensation, in connection with effecting
transactions for covered accounts over which such member or
associated persons thereof exercises investment discretion, to
furnish at least annually to the person authorized to transact
business for the account a statement setting forth the total amount
of compensation retained by the member or any associated person
thereof in connection with effecting transactions for the account
during the period covered by the statement. See 17 CFR 240.11a2-
2(T)(d). See also 1978 Release, supra note 479 (stating ``[t]he
contractual and disclosure requirements are designed to assure that
accounts electing to permit transaction-related compensation do so
only after deciding that such arrangements are suitable to their
interests'').
\485\ 24X represents that it will advise its membership through
the issuance of an Information Circular that those Members trading
for covered accounts over which they exercise investment discretion
must comply with this condition in order to rely on the rule's
exemption. See 24X 11(a) Letter, supra note 476, at 4.
---------------------------------------------------------------------------

IV. Exemption from Section 19(b) of the Exchange Act With Regard to
FINRA Rules Incorporated by Reference

24X proposes to incorporate by reference certain FINRA rules as 24X
rules.\486\ Thus, for those 24X rules, Exchange Members will comply
with the 24X rule by complying with the FINRA rule referenced therein.
In connection with its proposal to incorporate FINRA rules by
reference, 24X requests, pursuant to Rule 240.0-12,\487\ an exemption
under Section 36 of the Exchange Act from the rule filing requirements
of section 19(b) of the Exchange Act for changes to those 24X rules
that are effected solely by virtue of a change to a cross-referenced
FINRA rule.\488\ 24X represents in its letter that, as a condition to
the exemption, it will provide written notice to its Members whenever a
proposed rule change to a FINRA rule that is incorporated by reference
is proposed and whenever any such proposed change is approved by the
Commission or otherwise becomes effective.\489\
---------------------------------------------------------------------------

\486\ See letter from David Sassoon, General Counsel, 24X, to
Vanessa Countryman, Secretary, Commission, dated Feb. 6, 2024 (``24X
Exemption Request Letter''). 24X proposes to incorporate by
reference the following FINRA rules: (1) FINRA Rule 2210
(Communications with the Public), via 24X Rule 3.5 (Communications
with the Public); (2) the definition of a research report in FINRA
Rule 2241, via 24X Rule 3.13(b)(3); (3) the 12000 and 13000 Series
of the FINRA Manual (Code of Arbitration Procedures for Customer
Disputes and Code of Arbitration Procedures for Industry Disputes),
via 24X Rules 9.1, 9.2, 9.4, 9.5 and 9.8; (4) FINRA Rule 2268
(Requirements When Using Pre-dispute Arbitration Agreements for
Customer Accounts), via 24X Rule 9.3 (Pre-dispute Arbitration
Agreements); (5) the 14000 Series of the FINRA Manual (Code of
Mediation Procedures), via 24X Rule 9.7 (Mediation); and (6) FINRA
Rule 5270 (Frontrunning of Block Transactions), via 24X Rule 12.14
(Frontrunning of Block Transactions).
\487\ See 17 CFR 240.0-12.
\488\ See 24X Exemption Request Letter, supra note 486.
\489\ See 24X Exemption Request Letter, supra note 486. 24X will
provide such notice through a posting on the same website location
where 24X posts its own rule filings pursuant to Rule 19b-4 under
the Exchange Act, within the required time frame. The website
posting will include a link to the location on the FINRA website
where FINRA's proposed rule change is posted. See id.

---------------------------------------------------------------------------

[[Page 97119]]

Using its authority under section 36 of the Exchange Act,\490\ the
Commission is hereby granting 24X's request for an exemption, pursuant
to section 36 of the Exchange Act, from the rule filing requirements of
section 19(b) of the Exchange Act with respect to the rules that 24X
proposes to incorporate by reference.\491\ This exemption is
conditioned upon 24X providing written notice to its Members whenever
FINRA proposes to change a rule that 24X has incorporated by reference.
This exemption is appropriate, in the public interest and consistent
with the protection of investors because it will promote more efficient
use of Commission and SRO resources by avoiding duplicative rule
filings based on simultaneous changes to identical rules of more than
one SRO.
---------------------------------------------------------------------------

\490\ 15 U.S.C. 78mm.
\491\ The Commission previously exempted other exchanges from
the requirement to file proposed rule changes under Section 19(b) of
the Exchange Act. See, e.g., IEX Order, supra note 65; ISE Mercury
Order, supra note 75; Securities Exchange Act Release No. 68341
(Dec. 3, 2012), 77 FR 73065, 73067 (Dec. 7, 2012) (File No. 10-207)
(order granting the registration of Miami International Securities
Exchange, LLC (``MIAX Exchange'')) (``MIAX Order''); Securities
Exchange Act Release No. 79543 (Dec. 13, 2016), 81 FR 92901, 92903
(Dec. 20, 2016) (File No. 10-227) (order granting registration of
MIAX PEARL, LLC) (``MIAX PEARL Order''), BATS Order, supra note 57;
DirectEdge Exchanges Order, supra note 84.
---------------------------------------------------------------------------

V. Conclusion

It is ordered that the application of 24X for registration as a
national securities exchange be, and it hereby is, granted.
It is furthered ordered that operation of 24X is conditioned on the
satisfaction of the requirements below:
A. Participation in National Market System Plans. 24X must join the
Consolidated Tape Association Plan, the Consolidated Quotation Plan,
and the Nasdaq UTP Plan (or any successors thereto); the National
Market System Plan Establishing Procedures Under Rule 605 of Regulation
NMS; the Regulation NMS Plan to Address Extraordinary Market
Volatility; the Plan for the Selection and Reservation of Securities
Symbols; and the National Market System Plan Governing the Consolidated
Audit Trail.
B. Intermarket Surveillance Group. 24X must join the Intermarket
Surveillance Group.
C. Minor Rule Violation Plan. A Minor Rule Violation Plan filed by
24X under Rule 19d-1(c)(2) \492\ must be declared effective by the
Commission.
---------------------------------------------------------------------------

\492\ 17 CFR 240.19d-1(c)(2).
---------------------------------------------------------------------------

D. Rule 17d-2 Agreement. An agreement pursuant to Rule 17d-2 \493\
that allocates regulatory responsibility for those matters specified
above \494\ must be declared effective by the Commission, or 24X must
demonstrate that it independently has the ability to fulfill all of its
regulatory obligations.
---------------------------------------------------------------------------

\493\ 17 CFR 240.17d-2.
\494\ See supra section III.C.3. (discussing Rule 17d-2
agreements).
---------------------------------------------------------------------------

E. Participation in Multi-Party Rule 17d-2 Plans. 24X must become a
party to the multi-party Rule 17d-2 agreement concerning the
surveillance, investigation, and enforcement of common insider trading
rules and the agreement concerning certain Regulation NMS and
Consolidated Audit Trail rules.
F. RSA. 24X must finalize the provisions of the RSA with its
regulatory services provider, as described above,\495\ that will
specify the 24X and Commission rules for which the regulatory services
provider will provide certain regulatory functions, or 24X must
demonstrate that it independently has the ability to fulfill all of its
regulatory obligations.
---------------------------------------------------------------------------

\495\ See supra section III.C.2. (discussing 24X's RSA with
FINRA).
---------------------------------------------------------------------------

It is further ordered, pursuant to section 36 of the Exchange
Act,\496\ that 24X shall be exempted from the rule filing requirements
of section 19(b) of the Exchange Act with respect to the FINRA rules
that 24X proposes to incorporate by reference into its rules, subject
to the conditions specified in this Order.
---------------------------------------------------------------------------

\496\ 15 U.S.C. 78mm.

By the Commission.
Stephanie J. Fouse,
Assistant Secretary.
[FR Doc. 2024-28551 Filed 12-5-24; 8:45 am]
BILLING CODE 8011-01-P

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.