Notice2021-11533
Self-Regulatory Organizations; New York Stock Exchange LLC, NYSE American LLC, NYSE Arca, Inc., NYSE Chicago, Inc., and NYSE National, Inc.; Order Instituting Proceedings To Determine Whether To Approve or Disapprove Proposed Rule Changes To Amend the Schedule of Wireless Connectivity Fees and Charges To Add Circuits for Connectivity Into and Out of the Data Center in Mahwah, New Jersey
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 2, 2021
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 86 Issue 104 (Wednesday, June 2, 2021)</title>
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[Federal Register Volume 86, Number 104 (Wednesday, June 2, 2021)]
[Notices]
[Pages 29601-29607]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-11533]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-92033; File Nos. SR-NYSE-2021-14, SR-NYSEAMER-2021-10,
SR-NYSEArca-2021-13, SR-NYSECHX-2021-03, SR-NYSENAT-2021-04]
Self-Regulatory Organizations; New York Stock Exchange LLC, NYSE
American LLC, NYSE Arca, Inc., NYSE Chicago, Inc., and NYSE National,
Inc.; Order Instituting Proceedings To Determine Whether To Approve or
Disapprove Proposed Rule Changes To Amend the Schedule of Wireless
Connectivity Fees and Charges To Add Circuits for Connectivity Into and
Out of the Data Center in Mahwah, New Jersey
May 26, 2021.
I. Introduction
On February 12, 2021, New York Stock Exchange LLC (``NYSE''), NYSE
American LLC (``NYSE American''), NYSE Arca, Inc. (``NYSE Arca''), NYSE
Chicago, Inc. (``NYSE Chicago''), and NYSE National, Inc. (``NYSE
National'') (collectively, the ``Exchanges'') each filed with the
Securities and Exchange Commission (``Commission''), pursuant to
Section 19(b)(1) of the Securities Exchange Act of 1934 (``Exchange
Act'' or ``Act'') \1\ and Rule 19b-4 thereunder,\2\
[[Page 29602]]
a proposed rule change to amend their schedule of Wireless Connectivity
Fees and Charges (``Fee Schedule'') to (1) add circuits for
connectivity into and out of the data center in Mahwah, New Jersey
(``Mahwah Data Center''); (2) add services available to customers of
the Mahwah Data Center that are not colocation Users; and (3) change
the name of the Fee Schedule to ``Mahwah Wireless, Circuits, and Non-
Colocation Connectivity Fees and Charges.'' The proposed rule changes
were published for comment in the Federal Register on March 4, 2021.\3\
On April 7, 2021, pursuant to Section 19(b)(2) of the Act,\4\ the
Commission designated a longer period within which to either approve
the proposed rule changes, disapprove the proposed rule changes, or
institute proceedings to determine whether to disapprove the proposed
rule changes.\5\ This order institutes proceedings under Section
19(b)(2)(B) of the Exchange Act \6\ to determine whether to approve or
disapprove the proposed rule changes.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ See Securities Exchange Act Release Nos. 91217 (February 26,
2021), 86 FR 12715 (March 4, 2021) (SR-NYSE-2021-14) (``Notice'');
91218 (February 26, 2021), 86 FR 12744 (March 4, 2021) (SR-NYSEAMER-
2021-10); 91216 (February 26, 2021), 86 FR 12735 (March 4, 2021)
(SR-NYSEArca-2021-13); 91219 (February 26, 2021), 86 FR 12724 (March
4, 2021) (SR-NYSECHX-2021-03); and 91215 (February 26, 2021), 86 FR
12752 (March 4, 2021) (SR-NYSENAT-2021-04) (collectively, the
``Notices''). Comments received on the Notices are available on the
Commission's website at: <a href="https://www.sec.gov/comments/sr-nyse-2021-14/srnyse202114.htm">https://www.sec.gov/comments/sr-nyse-2021-14/srnyse202114.htm</a>. For ease of reference, citations to the
Notice(s) are to the Notice for SR-NYSE-2021-14.
\4\ 15 U.S.C. 78s(b)(2).
\5\ See Securities Exchange Act Release No. 91490 (April 7,
2021), 86 FR 19313 (April 13, 2021). The Commission designated June
2, 2021, as the date by which it should approve, disapprove, or
institute proceedings to determine whether to disapprove the
proposed rule changes.
\6\ 15 U.S.C. 78s(b)(2)(B).
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II. Description of the Proposed Rule Changes
The Exchanges propose to amend the Fee Schedule to add services
(``NCL Services'') and related fees available to customers of the data
center in Mahwah Data Center that are not colocation Users (``NCL
Customers''), as well as circuits into and out of the Mahwah Data
Center that are available to both colocation Users and NCL
Customers.\7\ The Exchanges also propose changing the name of the Fee
Schedule from ``Wireless Connectivity Fees and Charges'' to ``Mahwah
Wireless, Circuits, and Non-Colocation Connectivity Fees and Charges.''
\8\ The Exchanges expect the proposed changes to be operative 60 days
after the proposed rule changes become effective.\9\
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\7\ See Notice, supra note 3, at 12715. For purposes of the
Exchanges' colocation services, a ``User'' means any market
participant that requests to receive colocation services directly
from the Exchanges. See id. at 12715 n.4 (citing Securities Exchange
Act Release No. 76008 (September 29, 2015), 80 FR 60190 (October 5,
2015) (SR-NYSE-2015-40)). NCL Customers do not co-locate any
equipment in the Mahwah Data Center. See id. at 12720 n.10.
\8\ See id. at 12715-16.
\9\ See id. at 12716.
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The Exchanges state that they make the current proposals solely as
a result of their determination that the Commission's interpretations
of the Act's definitions of the terms ``exchange'' \10\ and
``facility'' \11\ apply to connectivity services described herein that
are offered by entities other than the Exchanges.\12\ The Exchanges
state that they disagree with the Commission's interpretations, deny
the services covered herein are offerings of an ``exchange'' or a
``facility'' thereof, and have sought review of the Commission's
interpretations as expressed in the Wireless Approval Order in the
Court of Appeals for the District of Columbia Circuit.\13\
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\10\ See 15 U.S.C. 78c(a)(1) (``The term `exchange' means any
organization, association, or group of persons, whether incorporated
or unincorporated, which constitutes, maintains, or provides a
market place or facilities for bringing together purchasers and
sellers of securities or for otherwise performing with respect to
securities the functions commonly performed by a stock exchange as
that term is generally understood, and includes the market place and
the market facilities maintained by such exchange.'').
\11\ See 15 U.S.C. 78c(a)(2) (``The term `facility' when used
with respect to an exchange includes its premises, tangible or
intangible property whether on the premises or not, any right to the
use of such premises or property or any service thereof for the
purpose of effecting or reporting a transaction on an exchange
(including, among other things, any system of communication to or
from the exchange, by ticker or otherwise, maintained by or with the
consent of the exchange), and any right of the exchange to the use
of any property or service.'').
\12\ See Notice, supra note 3, at 12716; see also Securities
Exchange Act Release No. 90209 (October 15, 2020), 85 FR 67044
(October 21, 2020) (SR-NYSE-2020-05, SR-NYSEAMER-2020-05, SR-
NYSEArca-2020-08, SR-NYSECHX-2020-02, SR-NYSENAT-2020-03, SR-NYSE-
2020-11, SR-NYSEAMER-2020-10, SR-NYSEArca-2020-15, SR-NYSECHX-2020-
05, SR-NYSENAT-2020-08) (``Wireless Approval Order'').
\13\ See Notice, supra note 3, at 12716; see also
Intercontinental Exchange, Inc. v. SEC, No. 20-1470 (D.C. Cir.
2020).
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A. Mahwah Circuits
According to the Exchanges, customers can connect into and out of
the Mahwah Data Center using either wireless connections or wired fiber
optic circuits.\14\ Both ICE Data Services (``IDS'') \15\ and third-
party telecommunications service providers offer wired circuits into
and out of the Mahwah Data Center.\16\ The Exchanges propose to add to
the Fee Schedule the circuit options offered by IDS to both colocation
Users and NCL Customers to connect into and out of the Mahwah Data
Center.\17\
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\14\ See id. at 12716.
\15\ IDS operates through several different Intercontinental
Exchange, Inc. (``ICE'') affiliates, including NYSE Technologies
Connectivity, Inc., an indirect subsidiary of NYSE. The Exchanges
themselves are indirect subsidiaries of ICE. See Wireless Approval
Order, supra note 12, at 67045.
\16\ See Notice, supra note 3, at 12716.
\17\ See id.
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Specifically, the Exchanges propose to amend the Fee Schedule to
add two different types of circuits, each available in three different
sizes, under the new heading ``C. Mahwah Circuits.'' \18\ First, the
Exchanges propose to amend the Fee Schedule to add ``Optic Access''
circuits, which are circuits that IDS operates and that customers can
use to connect between the Mahwah Data Center and IDS access centers at
six third-party owned data centers.\19\ Second, the Exchanges propose
to amend the Fee Schedule to add lower-latency Optic Low Latency
circuits that IDS operates and that customers can use to connect
between the Mahwah Data Center and IDS's Secaucus Access Center or
Carteret Access Center.\20\ The Exchanges propose to add a chart to the
Fee Schedule to include these circuits, setting forth each type of
service and the associated amounts of initial plus monthly fees.\21\
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\18\ See id.
\19\ These data centers include: (1) 111 Eighth Avenue, New
York, NY; (2) 32 Avenue of the Americas, New York, NY; (3) 165
Halsey, Newark, NJ; (4) Secaucus, NJ (the ``Secaucus Access
Center''); (5) Carteret, NJ (the ``Carteret Access Center''); and
(6) Weehawken, NJ. Optic Access circuits are available in 1 Gb, 10
Gb, and 40 Gb sizes. See id.
\20\ Optic Low Latency circuits are available in 1 Gb, 10 Gb,
and 40 Gb sizes. See id.
\21\ The proposed types of services and amounts of charges are
as follows: Optic Access Circuit--1 Gb ($1,500 initial charge plus
$1,500 monthly charge); Optic Access Circuit--10 Gb ($5,000 initial
charge plus $2,500 monthly charge); Optic Access Circuit--40 Gb
($5,000 initial charge plus $6,000 monthly charge); Optic Low
Latency Circuit--1 Gb ($1,500 initial charge plus $2,750 monthly
charge); Optic Low Latency Circuit--10 Gb ($5,000 initial charge
plus $3,950 monthly charge); and Optic Low Latency Circuit--40 Gb
($5,000 initial charge plus $8,250 monthly charge). See id.
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B. Non-Colocation Services
The Exchanges propose to amend the Fee Schedule to add several
services available to NCL Customers as well as several notes under the
new heading ``D. Non-Colocation (``NCL'') Services.'' \22\ According to
the Exchanges, these are the services that IDS offers within the Mahwah
Data Center that are not colocation services.\23\
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\22\ See id.
\23\ See id.
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[[Page 29603]]
1. IDS Network Ports
The Exchanges propose to amend the Fee Schedule to add services
that IDS offers enabling NCL Customers to connect to the IDS Network in
the Mahwah Data Center.\24\ The Exchanges describe the ``IDS Network''
as a wide area network available in the Mahwah Data Center and other
access centers.\25\ The Exchanges propose to add a chart to the Fee
Schedule setting forth and describing each type of IDS Network Port
providing NCL Customers access to IDS's network,\26\ along with the
associated amounts of initial plus monthly fees.\27\
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\24\ See id.
\25\ See id.
\26\ A port is connected to a circuit by using a cross connect.
See id. at 12720; see also infra note 65 and accompanying text.
\27\ The proposed types of services and the Exchanges'
descriptions of them, along with the associated amounts of initial
plus monthly fees, are as follows: NCL IDS Network Access--10 Gb, a
10 Gb IDS Network port ($10,000 initial charge plus $15,250 monthly
charge); and NCL IDS Network Access--40 Gb, a 40 Gb IDS Network port
($10,000 initial charge plus $19,750 monthly charge). See Notice,
supra note 3, at 12716-17.
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The Exchanges also propose to add to the Fee Schedule several notes
regarding these services, which they state are based on General Notes
4, 5, and 6 of the Exchanges' Price List regarding colocation.\28\
Specifically, the Exchanges propose to add the heading ``NCL Notes''
after the tables in the proposed section of the Fee Schedule titled
``D. Non-Colocation (``NCL'') Services.'' \29\ Proposed Note 1, titled
``Note 1: IDS Network,'' would establish that when an NCL Customer
purchases access to the IDS Network, the NCL Customer would receive:
(a) The ability to access the trading and execution systems of the
Exchanges (``Exchange Systems'') as well as of the Global OTC System
(``Global OTC''); \30\ and (b) connectivity to any of the listed data
products (``Included Data Products'') \31\ that it selects.\32\
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\28\ See id. at 12717.
\29\ See id.
\30\ Proposed Note 1 states that when an NCL Customer purchases
access to the IDS Network, it receives the ability to access the
trading and execution systems of the NYSE, NYSE American, NYSE Arca,
NYSE Chicago, and NYSE National (together, the Exchange Systems) as
well as of Global OTC (the Global OTC System), subject, in each
case, to authorization by the NYSE, NYSE American, NYSE Arca, NYSE
Chicago, NYSE National, or Global OTC, as applicable. Proposed Note
1 also states that each Exchange listed above offers access to its
Exchange Systems to its members and Global OTC offers access to the
Global OTC System to its subscribers, such that an NCL Customer does
not have to purchase a service that includes access to the IDS
Network to obtain access to Exchange Systems or the Global OTC
System. See id.
\31\ Proposed Note 1 provides that these ``Included Data
Products'' are as follows: NMS feeds--CTS, CQS, and OPRA; NYSE; NYSE
American; NYSE American Options; NYSE Arca; NYSE Arca Options; NYSE
Best Quote and Trades (BQT); NYSE Bonds; NYSE Chicago; and NYSE
National. See id.
\32\ Proposed Note 1 also states that when an NCL Customer
purchases access to the IDS Network, it receives connectivity to any
of the Included Data Products that it selects, subject to any
necessary technical provisioning requirements, authorization, and
licensing by the provider of the Included Data Feed. Fees for the
Included Data Products are charged by the provider of such Included
Data Products. An NCL Customer can change the Included Data Products
to which it receives connectivity at any time, subject to
authorization from the provider of such Included Data Product.
Proposed note 1 also states that because access to the IDS Network
is not the exclusive method to connect to the Included Data
Products, an NCL Customer does not have to purchase a service that
includes access to the IDS Network to connect to such Included Data
Products. See id.
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2. NCL Connectivity to Third Party Systems, Data Feeds, Testing and
Certification Feeds, and DTCC
The Exchanges also propose to amend the Fee Schedule to provide for
the connectivity services that IDS offers for NCL Customers to Third
Party Systems, Third Party Data Feeds, third party testing and
certification feeds, and DTCC (each as defined below).\33\
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\33\ The Exchanges state that they propose to adopt
substantially similar services and fees as set forth in the
Exchanges' Price List regarding colocation. See id. (citing
Securities Exchange Act Release No. 80311 (March 24, 2017), 82 FR
15749 (March 30, 2017) (SR-NYSE-2016-45)).
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a. Connectivity to Third Party Systems
The Exchanges propose to specify in the Fee Schedule services that
IDS offers NCL Customers to access the trading and execution services
of Third Party markets and other content service providers (``Third
Party Systems'') for a fee.\34\ According to the Exchanges, NCL
Customers connect to Third Party Systems over the IDS Network.\35\ The
Exchanges state that IDS charges a monthly recurring fee for
connectivity to a Third Party System, which the Exchanges propose to
add to their Fee Schedule.\36\ The Exchanges propose to add a chart to
the Fee Schedule setting forth a description of each type of
connectivity service to Third Party Systems over the IDS Network, along
with the associated amount of monthly fees per connection.\37\
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\34\ See id.
\35\ The Exchanges state that in order to obtain access to a
Third Party System, an NCL Customer enters into an agreement with
the relevant third-party content service provider, pursuant to which
the third-party content service provider charges the NCL Customer
for access to the Third Party System. When such services are
requested, IDS establishes a connection between the NCL Customer and
the relevant third party content service provider over the IDS
Network. IDS charges the NCL Customer for the connectivity to the
Third Party System. An NCL Customer only receives, and is only
charged by IDS for, connectivity to each Third Party System for
which the customer enters into an agreement with the third-party
content service provider. According to the Exchanges, neither the
Exchanges nor IDS has an affiliation with the providers of the Third
Party Systems. Establishing an NCL Customer's access to a Third
Party System does not give either IDS or the Exchanges any right to
use the Third Party Systems. Connectivity to a Third Party System
does not provide access or order entry to the Exchange's execution
system, and an NCL Customer's connection to a Third Party System is
not through the Exchange's execution system. See id.
\36\ Specifically, when an NCL Customer requests access to a
Third Party System, IDS identifies the applicable third-party market
or other content service provider and the bandwidth connection it
requires. See id.
\37\ The Exchanges propose the following monthly fees per
connection: 1Mb ($200 per connection monthly charge); 3Mb ($400 per
connection monthly charge); 5Mb ($500 per connection monthly
charge); 10Mb ($800 per connection monthly charge); 25Mb ($1,200 per
connection monthly charge); 50Mb ($1,800 per connection monthly
charge); 100Mb ($2,500 per connection monthly charge); 200Mb ($3,000
per connection monthly charge); and 1Gb, $3,500 per connection
monthly charge. See id. at 12717-18.
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The Exchanges also propose to add Note 2, titled ``Note 2: Third
Party Systems,'' to the section of the Fee Schedule titled ``D. Non-
Colocation (``NCL'') Services,'' which would provide that when an NCL
Customer purchases a connection that includes access to Third Party
Systems, it receives access to Third Party Systems it selects subject
to any technical provisioning requirements, authorization, and
licensing from such Third Party System.\38\ Proposed Note 2 also
provides that fees for the Third Party Systems are charged by the
provider of such Third Party System.\39\ In addition, proposed Note 2
states that the Exchanges are not the exclusive method to connect to
Third Party Systems.\40\
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\38\ See id. at 12718.
\39\ See id.
\40\ Proposed Note 2 would further provide that these ``The
Third Party Systems'' are as follows: American Trading Group (ATG);
BM&F Bovespa; Boston Options Exchange (BOX), Canadian Securities
Exchange (CSE); Cboe BYX Exchange (CboeBYX), Cboe BZX Exchange
(CboeBZX), Cboe EDGA Exchange (CboeEDGA), and Cboe EDGX Exchange
(CboeEDGX); Cboe Exchange (Cboe) and Cboe C2 Exchange (C2); Chicago
Mercantile Exchange (CME Group); Credit Suisse; Euronext Optiq Cash
and Derivatives Unicast (EUA); Euronext Optiq Cash and Derivatives
(Production); Investor Exchange (IEX); ITG TriAct Matchnow; Long
Term Stock Exchange (LTSE); Members Exchange (MEMX); MIAX Options,
MIAX PEARL Options, MIAX PEARL Equities, and MIAX Emerald; Morgan
Stanley; Nasdaq; NASDAQ Canada (CXC, CXD, CX2); NASDAQ ISE; Neo
Aequitas; NYFIX Marketplace; Omega; OneChicago; OTC Markets Group;
TD Ameritrade; and TMX Group. See id.
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[[Page 29604]]
b. Connectivity to Third Party Data Feeds
The Exchanges propose to specify in the Fee Schedule connectivity
services that IDS offers NCL Customers to connect to data feeds from
third-party markets and other content service providers (``Third Party
Data Feeds'') for a fee.\41\ According to the Exchanges, NCL Customers
connect to Third Party Data Feeds over the IDS Network.\42\
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\41\ See id.
\42\ The Exchanges state that IDS receives Third Party Data
Feeds from multiple national securities exchanges and other content
service providers at the Mahwah Data Center, and provides
connectivity to that data to NCL Customers for a fee. According to
the Exchanges, in order to connect to a Third Party Data Feed, an
NCL Customer enters into a contract with the relevant third-party
market or other content service provider, pursuant to which the
content service provider charges the NCL Customer for the Third
Party Data Feed. IDS receives the Third Party Data Feed over its
fiber optic network and, after the data provider and NCL Customer
enter into an agreement and IDS receives authorization from the data
provider, IDS retransmits the data to the NCL Customer over the NCL
Customer's IDS Network port. IDS charges the NCL Customer for the
connectivity to the Third Party Data Feed. An NCL Customer only
receives, and is only charged for, connectivity to the Third Party
Data Feeds for which it entered into contracts. With the exception
of the IDS, ICE, and Global OTC feeds, neither the Exchanges nor IDS
has any affiliation with the sellers of the Third Party Data Feeds.
The Exchanges and IDS have no right to use the Third Party Data
Feeds other than as a redistributor of the data. The Third Party
Data Feeds do not provide access or order entry to the Exchange's
execution system. With the exception of the ICE feed, the Third
Party Data Feeds do not provide access or order entry to the
execution systems of the third party generating the feed. The
Exchanges further represent that IDS receives Third Party Data Feeds
via arms-length agreements and has no inherent advantage over any
other distributor of such data. See id.
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The Exchanges state that IDS charges a monthly recurring fee for
connectivity to each Third Party Data Feed.\43\ Third Party Data Feed
providers may charge redistribution fees.\44\ The Exchanges propose
that, when IDS is charged a redistribution fee by the Third Party Data
Feed provider, IDS would pass through the charge to the NCL Customer,
without change to the fee.\45\ In addition, the Exchanges propose they
it would not charge NCL Customers that are third-party markets or
content providers for connectivity to their own feeds, as the Exchanges
maintain that such parties generally receive their own feeds for
purposes of diagnostics and testing.\46\ The Exchanges propose to add a
chart to the Fee Schedule setting forth a description of each type of
connectivity service to Third Party Feeds over the IDS Network, along
with the associated amount of monthly fees.\47\
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\43\ The monthly recurring fee is per Third Party Data Feed,
with the exception that the monthly recurring fee for the ICE Data
Services Consolidated Feeds (including the ICE Data Services
Consolidated Feed Shared Farm feeds), Vela--SuperFeeds, and MSCI
feeds vary by the bandwidth of the connection. According to the
Exchanges, depending on its needs and bandwidth, an NCL Customer may
opt to receive all or some of the Third Party Data Feeds. See id.
\44\ See id.
\45\ The fee would be labeled as a pass-through of a
redistribution fee on the NCL Customer's invoice. See id.
\46\ See id.
\47\ The proposed descriptions of these services and associated
amount of monthly fees are as follows: BM&F Bovespa ($3,000); Boston
Options Exchange (BOX) ($1,000); Canadian Securities Exchange (CSE)
($1,000); Cboe BZX Exchange (CboeBZX) and Cboe BYX Exchange
(CboeBYX) ($2,000); Cboe EDGX Exchange (CboeEDGX) and Cboe EDGA
Exchange (CboeEDGA) ($2,000); Cboe Exchange (Cboe) and Cboe C2
Exchange (C2) ($2,000); CME Group ($3,000); Euronext Optiq
Compressed Cash ($900); Euronext Optiq Compressed Derivatives
($600); Euronext Optiq Shaped Cash ($1,200); Euronext Optiq Shaped
Derivatives ($900); Financial Industry Regulatory Authority (FINRA)
($500); Global OTC ($100); ICE Data Services Consolidated Feed <=100
Mb ($200); ICE Data Services Consolidated Feed >100 Mb to <=1 Gb
($500); ICE Data Services Consolidated Feed >1 Gb ($1,000); ICE Data
Services Consolidated Feed Shared Farm <=100Mb ($200); ICE Data
Services Consolidated Feed Shared Farm >100 Mb to <=1 Gb ($500); ICE
Data Services Consolidated Feed Shared Farm >1 Gb ($1,000); ICE Data
Services--ICE TMC ($200); ICE Data Services PRD ($200); ICE Data
Services PRD CEP ($400); Intercontinental Exchange (ICE) ($1,500);
Investors Exchange (IEX) ($1,000); ITG TriAct Matchnow ($1,000);
Members Exchange (MEMX) ($3,000); MIAX Emerald ($3,500); MIAX
Options/MIAX PEARL Options ($2,000); MIAX PEARL Equities ($2,500);
Montr[eacute]al Exchange (MX) ($1,000); MSCI 5 Mb ($500); MSCI 25 Mb
($1,200); NASDAQ Stock Market ($2,000); NASDAQ OMX Global Index Data
Service ($100); NASDAQ UQDF & UTDF ($500); NASDAQ Canada (CXC, CXD,
CX2) ($1,500); NASDAQ ISE ($1,000); Neo Aequitas ($1,200); Omega
($1,000); OneChicago ($1,000); OTC Markets Group ($1,000); Vela--
SuperFeed <500 Mb ($250); Vela--SuperFeed >500 Mb to <1.25 Gb
($800); Vela--SuperFeed >1.25 Gb ($1,000); and TMX Group ($2,500).
See id. at 12718-19.
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The Exchanges also propose to add Note 3, titled ``Note 3: Third
Party Systems,'' to the section of the Fee Schedule titled ``D. Non-
Colocation (``NCL'') Services.'' \48\ Proposed Note 3 would provide
that pricing for data feeds from third party markets and other service
providers (Third Party Data Feeds) is for connectivity only, which is
subject to any technical provisioning requirements, authorization, and
licensing from the provider of the data feed, and is over the IDS
Network.\49\ Proposed Note 3 would also state that fees for Third Party
Data Feeds are charged by the provider of such data feeds,\50\ as well
as that IDS is not the exclusive method to connect to Third Party Data
Feeds.\51\
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\48\ See id. at 12719.
\49\ See id.
\50\ Proposed Note 3 further provides that Third Party Data Feed
providers may charge redistribution fees, and that when IDS is
charged a redistribution fee, IDS passes the charge through to the
customer, without change to the fee. The fee is labeled as a pass-
through of a redistribution fee on the customer's invoice. Proposed
Note 3 also states that IDS does not charge third party markets or
content providers for connectivity to their own feeds. See id.
\51\ See id.
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c. Connectivity to Third Party Data Testing and Certification Feeds
The Exchanges propose to specify in the Fee Schedule that NCL
Customers may obtain connectivity to third-party testing and
certification feeds.\52\ According to the Exchanges, certification
feeds are used to certify that an NCL Customer conforms to any of the
relevant content service provider's requirements for accessing Third
Party Systems or receiving Third Party Data Feeds, while testing feeds
would provide NCL Customers an environment in which to conduct tests
with non-live data.\53\ The Exchanges state that such feeds, which are
solely used for certification and testing and do not carry live
production data, are available over the IDS Network.\54\ The Exchanges
propose to add a $100 monthly recurring charge per feed for
connectivity to Third Party Testing and Certification Feeds to the Fee
Schedule.\55\
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\52\ See id.
\53\ See id.
\54\ The Exchanges state that connectivity to third party
testing and certification feeds would be subject to any technical
provisioning requirements, authorization, and licensing from the
provider of the data feed; fees for such feeds are charged by the
provider of the feed; and the Exchanges are not the exclusive method
to connect to third-party testing and certification feeds. See id.
\55\ See id.
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d. Connectivity to DTCC
The Exchanges propose to specify in the Fee Schedule services that
IDS provides to connect NCL Customers to Depository Trust & Clearing
Corporation (``DTCC'') for clearing, fund transfer, insurance, and
settlement services.\56\ IDS charges the NCL Customer for the
connectivity to DTCC.\57\ The Exchanges
[[Page 29605]]
propose to add a $500 monthly recurring charge for a 5 Mb connection to
DTCC and a $2,500 monthly recurring charge for a 10 Mb connection to
DTCC to the Fee Schedule.\58\
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\56\ According to the Exchanges, in order to connect to DTCC, an
NCL Customer enters into a contract with DTCC, pursuant to which
DTCC charges the NCL Customer for the services provided. IDS
receives the DTCC feed over its fiber optic network and, after DTCC
and the NCL Customer entered into the services contract and IDS
received authorization from DTCC, IDS provides connectivity to DTCC
to the NCL Customer over the NCL Customer's IDS Network port. The
Exchanges state that connectivity to DTCC does not provide access or
order entry to the Exchanges' execution systems, and an NCL
Customer's connection to DTCC is not through the Exchanges'
execution systems. See id. at 12719-20.
\57\ The Exchanges state that connectivity to DTCC is subject to
any technical provisioning requirements, authorization, and
licensing from DTCC; fees for such feeds are charged by DTCC; and
IDS is not the exclusive provider to connect to DTCC feeds. See id.
at 12720.
\58\ See id.
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3. NCL NMS Network Ports
The Exchanges propose to amend the Fee Schedule to add services
that IDS currently offers enabling NCL Customers to connect to the NMS
feeds for which the Securities Industry Automation Corporation is
engaged as the securities information processor (the ``NMS Network'')
in the Mahwah Data Center.\59\ The Exchanges propose to add a chart to
the Fee Schedule setting forth and describing each type of NCL NMS
Network Port providing NCL Customers access to the NCL NMS Network,
along with the associated amounts of initial plus monthly fees.\60\
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\59\ See id.
\60\ The Exchanges propose a $10,000 initial charge plus $11,000
monthly charge for a 10 Gb NCL NMS Network port, and a $10,000
initial charge plus $18,000 monthly charge for a 40 Gb NCL NMS
Network port. See id.
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The Exchanges also propose to add Note 4, titled ``Note 4: NMS
Network,'' to the section of the Fee Schedule titled ``D. Non-
Colocation (``NCL'') Services,'' establishing that when an NCL Customer
purchases an NMS Network port, it has the option of receiving the NMS
feeds over the NMS Network.\61\ Proposed Note 4 would provide that when
an NCL Customer purchases access to the NMS Network, upon its request,
it will receive connectivity to any of the NMS feeds that it selects,
subject to any necessary technical provisioning requirements,
authorization, and licensing from the provider of such NMS feed.\62\
Proposed Note 4 would also state that fees for the NMS feeds are
charged by the provider of such NMS feed.\63\
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\61\ See id.
\62\ Proposed Note 4 would further provide that these NMS feeds
are as follows: CTS; CQS; and OPRA. See id.
\63\ See id.
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4. NCL Cross Connect
The Exchanges propose to amend the Fee Schedule to specify fiber
cross connect services that IDS offers NCL Customers for an initial and
monthly charge.\64\ A cross connect is used to connect a circuit to a
port, the Exchanges state, and NCL Customers use such cross connects to
connect from the IDS Network or NMS Network to a circuit connecting
outside the Mahwah Data Center.\65\ According to the Exchanges, the
proposed fees for this service would be identical to the fees for the
corresponding service in colocation.\66\ The Exchanges propose to add a
$500 initial charge plus a $600 monthly charge to furnish and install
one NCL Cross Connect to the Fee Schedule.\67\
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\64\ See id. According to the Exchanges, because NCL Customers
do not co-locate any equipment in the Mahwah Data Center, they
generally require fewer fiber cross connects than colocation Users.
Hence, the Exchanges do not propose amending the Fee Schedule to
include bundles of 6, 12, 18, or 24 cross connects as are available
to colocation Users. See id. at 12720 n.10.
\65\ See id. at 12720.
\66\ See id.
\67\ See id.
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5. NCL Expedite Fee
The Exchanges propose to amend the Fee Schedule to specify optional
services that IDS offers NCL Customers to expedite the completion of
services purchased or ordered by the NCL Customer, for which IDS
charges an ``Expedite Fee.'' \68\ If an NCL Customer wishes to obtain
NCL Services earlier than the expected completion date, the NCL
Customer may pay the Expedite Fee.\69\ The Exchanges propose to add a
$4,000 per request charge for expedited installation/completion of a
customer's NCL service to the Fee Schedule.\70\
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\68\ According to the Exchanges, the proposed fees would be
similar to the ``Expedite Fee'' applicable to Users in colocation.
See id. (citing Securities Exchange Act Release No. 67666 (August
15, 2012), 77 FR 50742 (August 22, 2012) (SR-NYSE-2012-18).
\69\ The Exchanges state that the time saved would vary
depending on the type(s) of service(s) ordered, but the Expedite Fee
would always be a flat $4,000, allowing the NCL Customer to
determine if the expected time savings warrants payment of the fee.
See id.
\70\ See id.
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6. NCL Change Fee
The Exchanges propose to amend the Fee Schedule to specify the
``Change Fee'' that IDS charges an NCL Customer if the NCL Customer
requests a change to one or more existing NCL Services that IDS has
already established or completed for the NCL Customer.\71\ The
Exchanges propose to add a $950 per request charge to change an NCL
service that has already been installed/completed for a customer to the
Fee Schedule.\72\
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\71\ The Exchanges state that several of the proposed services
that would be added to the Fee Schedule include an initial fee in
addition to an ongoing monthly fee. These initial fees are related
to IDS's initial cost of establishing or installing a particular
service for the NCL Customer. IDS charges a fee of $950 per order if
the NCL Customer requests a change to one or more existing NCL
Services that IDS has already established or completed for the NCL
Customer. According to the Exchanges, this is similar to the
``Change Fee'' applicable to Users in colocation. For example, the
initial installation of an IDS Network connection would include
establishing and configuring market data services requested by the
NCL Customer, which would be covered by the initial install fee.
However, if the NCL Customer requests that IDS establish and
configure additional market data services for its IDS Network
connection, the NCL Customer would be charged a one-time Change Fee
of $950 for that request. If an NCL Customer orders two or more
services at one time (for example, through submitting an order form
requesting multiple services), the NCL Customer would be charged a
one-time Change Fee of $950, which would cover the multiple
services. See id. at 12720-21.
\72\ See id. at 12721.
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C. Fee Schedule Name
Finally, the Exchanges propose change the name of the Fee Schedule
from ``Wireless Connectivity Fees and Charges'' to ``Mahwah Wireless,
Circuits, and Non-Colocation Connectivity Fees and Charges,'' since the
Fee Schedule will no longer be limited to wireless services.\73\
---------------------------------------------------------------------------
\73\ See id.
---------------------------------------------------------------------------
III. Exchanges' Justification and Comments Received
The Exchanges generally argue that the proposed rule changes are
reasonable, equitable, and not unfairly discriminatory because use of
the proposed services is completely voluntary and alternatives to them
are available.\74\ According to the Exchanges, IDS operates in a highly
competitive market in which exchanges, third party telecommunications
providers, Hosting Users,\75\ and other third-party vendors offer
connectivity services as a means to facilitate the trading and other
market activities of market participants.\76\ With these proposals, the
Exchanges assert that market participants would have more choices with
respect to the form and price of the services they use, allowing market
participants to select the services and connectivity options that
better suit their needs, thereby helping them tailor their connectivity
operations to the requirements of their businesses.\77\ In any case,
the Exchanges state that there are currently few NCL Customers, and
thus expect that the
[[Page 29606]]
impact of the proposals would be minimal.\78\
---------------------------------------------------------------------------
\74\ See id.
\75\ ``Hosting'' is a service offered by a User to another
entity in the User's space within the Mahwah Data Center. The
Exchanges allow Users to act as Hosting Users for a monthly fee. See
id. (citing Securities Exchange Act Release No. 76008 (September 29,
2015), 80 FR 60190 (October 5, 2015) (SR-NYSE-2015-40)).
\76\ See id. In this regard, the Exchanges maintain that most of
the third-party telecommunications providers that provide circuits
do so at fees lower than those proposed herein, and that most NCL
Customers and colocation Users use such third party
telecommunication circuits into and out of the Mahwah Data Center.
See id. at 12722.
\77\ See id. at 12723. More generally, the Exchanges maintain
that market participants consider various factors in determining
which connectivity options to choose, including latency; bandwidth
size; amount of network uptime; the equipment that the network uses;
the cost of the connection; and the applicable contractual
provisions. See id. at 12722.
\78\ See id. at 12721.
---------------------------------------------------------------------------
With respect to the competitive environment, the Exchanges maintain
generally that the proposed rule changes are reasonable because the
proposed fees are constrained by competition.\79\ In this regard, the
Exchanges argue that the proposed services are voluntary and available
to all market participants on an equal basis.\80\ In addition, the
Exchanges provide some cost-based justifications throughout for why the
proposals are reasonable, claiming that offering the proposed services
requires the provision, maintenance, and operation of the Mahwah Data
Center, including the installation, monitoring, support, and
maintenance of the proposed services.\81\ The Exchanges also assert
that various of the proposed changes to the Fee Schedule would provide
market participants with greater transparency and clarity.\82\
---------------------------------------------------------------------------
\79\ See id. at 12721-22.
\80\ See id. at 12721.
\81\ See id. at 12721-23.
\82\ See id. at 12722.
---------------------------------------------------------------------------
The Exchanges argue that the proposals provide for an equitable
allocation of fees and are not unfairly discriminatory, again
contending that the proposed services are voluntary and available to
all market participants on an equal basis.\83\ The Exchanges claim that
the proposed rule changes do not apply differently to distinct types or
sizes of market participants, but rather apply to all market
participants equally, and state that the Fee Schedule would be applied
uniformly to all market participants.\84\
---------------------------------------------------------------------------
\83\ See id. at 12723.
\84\ See id.
---------------------------------------------------------------------------
Lastly, the Exchanges argue that the proposed rule changes do not
impose an unnecessary or inappropriate burden on competition because
there are numerous other third parties that provide circuits and
connectivity at the Mahwah Data Center, with whom IDS competes for the
provision of such services to customers.\85\ According to the
Exchanges, the proposals do not affect competition among national
securities exchanges or among members of the Exchanges, but rather the
Exchanges' filing of the proposals puts IDS at a competitive
disadvantage relative to its commercial competitors that are not
subject to filing requirements of Section 19(b) of the Act.\86\
---------------------------------------------------------------------------
\85\ See id. at 12724.
\86\ See id. at 12723-24.
---------------------------------------------------------------------------
The Commission has received one comment letter regarding the
proposed rule changes.\87\ This commenter argues that the Exchanges
have failed to demonstrate that the proposed rule changes are
consistent with the Act.\88\ The commenter asserts that the proposals
are not transparent as to whether they are only prospective, or whether
and to what extent they cover services and fees that are already in
effect.\89\
---------------------------------------------------------------------------
\87\ Letter from John Ramsay, Chief Market Policy Officer,
Investors Exchange LLC (``IEX'') to Vanessa Countryman, Secretary,
Commission, dated March 25, 2021 (``IEX Letter'').
\88\ See id. at 1, 4-5. The commenter also disputes the
Exchanges' assertion that the proposed services are not offerings of
an ``exchange'' or a ``facility'' thereof. See id. at 2; see also
supra notes 10-13 and accompanying text.
\89\ This commenter states that it is important for providing
informed comment on the proposals that the Exchanges be clear as to
whether they are seeking retroactive approval of offerings and fees
that are already in effect, and if so, understanding their history.
The commenter states that the Exchanges should at a minimum explain:
Which fees are already in effect and how long have they been in
effect; if previously charged by an entity other than IDS, by which
entity, and what the purpose was for the change in entity; and if
any specific fees have increased, what the dates and amounts of the
increases were, as well as the reasons for such increases. See IEX
Letter at 2.
---------------------------------------------------------------------------
This commenter further argues that the Exchanges' competition- and
cost-based justifications for the proposals amount to conclusory
assertions.\90\ The commenter maintains that the Exchanges do not
specifically assert that other service providers can offer the ability
to transmit data or messages into or out of the Mahwah Data Center as
quickly and efficiently as IDS can.\91\ With respect to competition,
the commenter states that the Exchanges should explain the following:
Who the other competing providers are and which, if any of them,
provide all of the same functionality as is provided by IDS in terms of
access to exchange systems, third market systems, and market data; how
the fees for the services compare to the prices charged by competing
providers for the same or similar services; and whether competing
providers have the ability to provide services that are equivalent to
the services in terms of latency or other characteristics, and if so,
the basis for that conclusion (and if not equivalent, what differences
there are and how they affect the question of whether the fees charged
are fair and reasonable).\92\ The commenter also notes the Exchanges'
claim that third-party providers of circuits in the Mahwah Data Center
charge lower fees than IDS, and argues that this raises the question of
why IDS is able to charge more and what benefits IDS may be able to
provide that third parties cannot.\93\
---------------------------------------------------------------------------
\90\ See id. at 3.
\91\ See id. at 4.
\92\ See id.
\93\ See id.; see also supra note 76.
---------------------------------------------------------------------------
Moreover, the commenter argues that the Exchanges have not provided
any quantitative or other specific information to support their
argument that fees for the proposed services are reasonable because of
the need to recover data center costs.\94\ The commenter states that
the following information would be relevant with respect to the
Exchanges' cost-based arguments: Which cost components the Exchanges
believe are relevant to the services and why; the amount of those costs
over some specified period of recent time (e.g., during the last year);
and how those costs compare to the amount of fees from the services
that has been collected or is expected to be collected over the same
time period.\95\
---------------------------------------------------------------------------
\94\ See IEX Letter at 3.
\95\ See id.
---------------------------------------------------------------------------
IV. Proceedings To Determine Whether To Approve or Disapprove the
Proposed Rule Changes
The Commission is instituting proceedings pursuant to Section
19(b)(2)(B) of the Act to determine whether the Exchanges' proposed
rule changes should be approved or disapproved.\96\ Institution of
proceedings does not indicate that the Commission has reached any
conclusions with respect to any of the issues involved. Rather, the
Commission seeks and encourages interested persons to provide
additional comment on the proposed rule changes to inform the
Commission's analysis of whether to approve or disapprove the proposed
rule changes.
---------------------------------------------------------------------------
\96\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------
Pursuant to Section 19(b)(2)(B) of the Act,\97\ the Commission is
providing notice of the grounds for possible disapproval under
consideration:
---------------------------------------------------------------------------
\97\ Id. Section 19(b)(2)(B) of the Act also provides that
proceedings to determine whether to disapprove a proposed rule
change must be concluded within 180 days of the date of publication
of notice of the filing of the proposed rule change. See id. The
time for conclusion of the proceedings may be extended for up to 60
days if the Commission finds good cause for such extension and
publishes its reasons for so finding, or if the exchange consents to
the longer period. See id.
---------------------------------------------------------------------------
<bullet> Whether the Exchanges have demonstrated how the proposals
are consistent with Section 6(b)(4) of the Act, which requires that the
rules of a national securities exchange ``provide for the equitable
allocation of reasonable dues, fees, and other charges among its
members and issuers and other persons using its facilities;'' \98\
---------------------------------------------------------------------------
\98\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------
[[Page 29607]]
<bullet> Whether the Exchanges have demonstrated how the proposals
are consistent with Section 6(b)(5) of the Act, which requires, among
other things, that the rules of a national securities exchange be
``designed to perfect the operation of a free and open market and a
national market system'' and ``protect investors and the public
interest,'' and not be ``designed to permit unfair discrimination
between customers, issuers, brokers, or dealers;'' \99\ and
---------------------------------------------------------------------------
\99\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
<bullet> Whether the Exchanges have demonstrated how the proposals
are consistent with Section 6(b)(8) of the Act, which requires that the
rules of a national securities exchange ``not impose any burden on
competition not necessary or appropriate in furtherance of the purposes
of [the Act].'' \100\
---------------------------------------------------------------------------
\100\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------
As discussed in Section III above, the Exchanges made various
arguments in support of the proposals and the Commission received a
comment letter that expressed concerns regarding the proposals,
including that the Exchanges did not provide sufficient information to
establish that the proposals are consistent with the Act and the rules
thereunder.
Under the Commission's Rules of Practice, the ``burden to
demonstrate that a proposed rule change is consistent with the Exchange
Act and the rules and regulations issued thereunder . . . is on the
self-regulatory organization [`SRO'] that proposed the rule change.''
\101\ The description of a proposed rule change, its purpose and
operation, its effect, and a legal analysis of its consistency with
applicable requirements must all be sufficiently detailed and specific
to support an affirmative Commission finding.\102\ Any failure of an
SRO to provide this information may result in the Commission not having
a sufficient basis to make an affirmative finding that a proposed rule
change is consistent with the Act and the applicable rules and
regulations.\103\
---------------------------------------------------------------------------
\101\ 17 CFR 201.700(b)(3).
\102\ See id.
\103\ See id.
---------------------------------------------------------------------------
The Commission is instituting proceedings to allow for additional
consideration and comment on the issues raised herein, including as to
whether the proposals are consistent with the Act, specifically, with
its requirements that the rules of a national securities exchange
provide for the equitable allocation of reasonable dues, fees, and
other charges among its members, issuers, and other persons using its
facilities; are designed to perfect the operation of a free and open
market and a national market system, and to protect investors and the
public interest; are not designed to permit unfair discrimination
between customers, issuers, brokers, or dealers; and do not impose any
burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act; \104\ as well as any other
provision of the Act, or the rules and regulations thereunder.
---------------------------------------------------------------------------
\104\ See 15 U.S.C. 78f(b)(4), (5), and (8).
---------------------------------------------------------------------------
V. Commission's Solicitation of Comments
The Commission requests written views, data, and arguments with
respect to the concerns identified above as well as any other relevant
concerns. Such comments should be submitted by June 23, 2021. Rebuttal
comments should be submitted by July 7, 2021. Although there do not
appear to be any issues relevant to approval or disapproval that would
be facilitated by an oral presentation of views, data, and arguments,
the Commission will consider, pursuant to Rule 19b-4, any request for
an opportunity to make an oral presentation.\105\
---------------------------------------------------------------------------
\105\ 15 U.S.C. 78s(b)(2). Section 19(b)(2) of the Act grants
the Commission flexibility to determine what type of proceeding--
either oral or notice and opportunity for written comments--is
appropriate for consideration of a particular proposal by an SRO.
See Securities Acts Amendments of 1975, Report of the Senate
Committee on Banking, Housing and Urban Affairs to Accompany S. 249,
S. Rep. No. 75, 94th Cong., 1st Sess. 30 (1975).
---------------------------------------------------------------------------
The Commission asks that commenters address the sufficiency and
merit of the Exchanges' statements in support of the proposals, in
addition to any other comments they may wish to submit about the
proposed rule changes.
Interested persons are invited to submit written data, views, and
arguments concerning the proposed rule changes, including whether the
proposals are consistent with the Act. Comments may be submitted by any
of the following methods:
Electronic Comments
<bullet> Use the Commission's internet comment form (<a href="http://www.sec.gov/rules/sro.shtml">http://www.sec.gov/rules/sro.shtml</a>); or
<bullet> Send an email to <a href="/cdn-cgi/l/email-protection#cfbdbaa3aae2aca0a2a2aaa1bbbc8fbcaaace1a8a0b9"><span class="__cf_email__" data-cfemail="5a282f363f77393537373f342e291a293f39743d352c">[email protected]</span></a>. Please include
File Nos. SR-NYSE-2021-14, SR-NYSEAMER-2021-10, SR-NYSEArca-2021-13,
SR-NYSECHX-2021-03, SR-NYSENAT-2021-04 on the subject line.
Paper Comments
<bullet> 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 Nos. SR-NYSE-2021-14, SR-NYSEAMER-
2021-10, SR-NYSEArca-2021-13, SR-NYSECHX-2021-03, and SR-NYSENAT-2021-
04. The file numbers 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 (<a href="http://www.sec.gov/rules/sro.shtml">http://www.sec.gov/rules/sro.shtml</a>). Copies of the submission, all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for website
viewing and printing in the Commission's Public Reference Room, 100 F
Street NE, Washington, DC 20549, on official business days between the
hours of 10:00 a.m. and 3:00 p.m. Copies of such filing also will be
available for inspection and copying at the principal office of the
Exchanges. All comments received will be posted without change. Persons
submitting comments are cautioned that we do not redact or edit
personal identifying information from comment submissions. You should
submit only information that you wish to make publicly available. All
submissions should refer to File Nos. SR-NYSE-2021-14, SR-NYSEAMER-
2021-10, SR-NYSEArca-2021-13, SR-NYSECHX-2021-03, and SR-NYSENAT-2021-
04 and should be submitted on or before June 23, 2021. Rebuttal
comments should be submitted by July 7, 2021.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\106\
---------------------------------------------------------------------------
\106\ 17 CFR 200.30-3(a)(57).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-11533 Filed 6-1-21; 8:45 am]
BILLING CODE 8011-01-P
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