Notice2021-25357
Self-Regulatory Organizations; NYSE Chicago, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Update the Procedures for the Allocation of Cabinets and Power to Its Colocated Users
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Published
November 22, 2021
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 86 Issue 222 (Monday, November 22, 2021)</title>
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[Federal Register Volume 86, Number 222 (Monday, November 22, 2021)]
[Notices]
[Pages 66358-66361]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-25357]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-93591; File No. SR-NYSECHX-2021-16]
Self-Regulatory Organizations; NYSE Chicago, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Update
the Procedures for the Allocation of Cabinets and Power to Its
Colocated Users
November 16, 2021.
Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on November 3, 2021, the NYSE Chicago, Inc. (``NYSE
Chicago'' or the ``Exchange'') filed with the Securities and Exchange
Commission (the ``Commission'') the proposed rule change as described
in Items I and II below, which Items have been prepared by the self-
regulatory organization. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 15 U.S.C. 78a.
\3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to update the procedures for the allocation
of cabinets and power to its colocated Users. The proposed rule change
is available on the Exchange's website at <a href="http://www.nyse.com">www.nyse.com</a>, 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 self-regulatory organization
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 those 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 parts of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange proposes to establish \4\ procedures for the
allocation of power to its co-located \5\ Users.\6\
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\4\ The Commission notes that the Exchange proposes to update
previously established procedures for allocation of cabinets and
power to its colocated Users.
\5\ The Exchange initially filed rule changes relating to its
co-location services with the Securities and Exchange Commission
(``Commission'') in 2019. See Securities Exchange Act Release No.
87408 (October 28, 2019), 84 FR 58778 (November 1, 2019) (SR-
NYSECHX-2019-27).
\6\ For purposes of the Exchange's co-location services, a
``User'' means any market participant that requests to receive co-
location services directly from the Exchange. See id., at note 6. As
specified in the Fee Schedule of NYSE Chicago, Inc. (``Fee
Schedule''), a User that incurs co-location fees for a particular
co-location service pursuant thereto would not be subject to co-
location fees for the same co-location service charged by the
Exchange's affiliates New York Stock Exchange LLC, NYSE American
LLC, NYSE Arca, Inc., and NYSE National, Inc. (together, the
``Affiliate SROs''). Each Affiliate SRO has submitted substantially
the same proposed rule change to propose the changes described
herein. See SR-NYSE-2021-66; SR-NYSEAMER-2021-42; SR-NYSEArca-2021-
96; SR-NYSENAT-2021-22.
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[[Page 66359]]
In December 2020, the Exchange established procedures for the
allocation of cabinets in colocation should it become needed.\7\ In
April 2021, the Exchange added procedures for the allocation of power
in colocation (together with the cabinet procedures, the ``Existing
Procedures'').\8\
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\7\ See Securities Exchange Act Release No. 90732 (December 18,
2020), 85 FR 84443 (December 28, 2020) (SR-NYSE-2020-73, SR-
NYSEAMER-2020-66, SR-NYSEArca-2020-82, SR-NYSECHX-2020-26, and SR-
NYSENAT-2020-28).
\8\ See Securities Exchange Act Release No. 91515 (April 8,
2021), 86 FR 19674 (April 14, 2021) (SR-NYSE-2021-12, SR-NYSEAMER-
2021-08, SRNYSENAT-2021-03, SR-NYSEArca-2021-11, and SR-NYSECHX-
2021-02). The Existing Procedures are set forth in General Notes 7
and 8 under ``Co-location Fees'' in the Fee Schedule.
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Proposed Changes to the Waitlist Procedures
Pursuant to the Existing Procedures, a Combined Waitlist is
currently in effect. To be placed on the Combined Waitlist, a User must
submit an order that complies with the Combined Limits--that is, the
order must be for no more than 32 kW, and no more than four dedicated
cabinets with standard power allocations of 4 kW or 8 kW as part of the
32 kW total.\9\
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\9\ See Fee Schedule, Co-Location Fees, General Notes 7 and 8.
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The Existing Procedures provide that ``[a] User may only have one
order for new cabinets and/or additional power on the Combined Waitlist
at a time . . . .'' \10\ The Exchange has become aware that some Users
are attempting to circumvent this provision by submitting additional
orders in the names of entities affiliated with the User.\11\
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\10\ See Fee Schedule, Co-Location Fees, General Note 8(b).
\11\ For example, a User that wants 64 kW could submit an order
for 32 kW to the Combined Waitlist, and then have an affiliated
entity submit a second order to the Combined Waitlist for an
additional 32 kW. Once the affiliated entity obtained its 32 kW, it
could assign the power to the User. As a result, the User would
obtain two times more power than the Combined Limit would allow. The
Exchange has been informed that at least one User has contemplated
utilizing affiliates for this purpose.
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The Exchange believes that such actions by Users are contrary to
the objectives of the Existing Procedures, which were intended to
foreclose Users from obtaining a greater portion of the cabinets and
power available than the portion defined by the Cabinet Limits and
Combined Limits. Such actions by Users could result in a distribution
of cabinets and power that is contrary to the intent of the Cabinet
Limits and Combined Limits, with Users that are willing to submit
multiple orders in the names of their affiliates obtaining more
cabinets and power than the Cabinet Limits and Combined Limits allow,
to the detriment of other Users seeking to purchase cabinets or power.
To address this issue, the Exchange proposes to amend the Existing
Procedures to add to General Note 8(b) that ``[w]hile a User is on the
Combined Waitlist, no Affiliate of such User may also be on the
Combined Waitlist.'' The Exchange similarly proposes to amend General
Note 8(a), regarding the Cabinet Waitlist, to provide that ``[w]hile a
User is on the Cabinet Waitlist, no Affiliate of such User may also be
on the Cabinet Waitlist.'' The term ``Affiliate'' is already defined in
the Co-Location Fees section of the Fee Schedule as follows: ``An
`Affiliate' of a User is any other User or Hosted Customer that is
under 50% or greater common ownership or control of the first User.''
This definition of ``Affiliate'' was introduced in connection with the
Exchange's filing regarding partial cabinet solutions, and the Exchange
believes that the definition is appropriate to also use in the present
context.\12\
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\12\ To the extent that the Combined Waitlist currently includes
orders submitted by two or more Users that are Affiliates, the
Exchange intends to remove all but the first of such Affiliates'
orders from the Combined Waitlist upon this proposed rule change
becoming operative.
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Proposed Changes to the Purchasing Limit Procedures
The Exchange also proposes to amend the Existing Procedures
regarding Cabinet and Power Purchasing Limits in General Note 7 to
prevent Users from circumventing the Cabinet Limits and Combined Limits
in a similar fashion when they are in effect but a waitlist is not. The
Existing Procedures provide that when the Cabinet Limit or Combined
Limits are in effect, a User will have to wait 30 days from the date of
the User's signed order before purchasing cabinets or power again. The
Exchange proposes to amend such provisions to specify that this 30-day
limitation applies not just to Users that have already purchased
cabinets or power subject to the applicable Purchasing Limit, but also
to any Affiliate of such User, so long as the applicable Purchasing
Limit remains in effect.
General
The proposed rule change would apply the same way to all types and
sizes of market participants. As is currently the case, the purchase of
any colocation service is completely voluntary and the Fee Schedule is
applied uniformly to all Users. The proposed change is not otherwise
intended to address any other issues relating to colocation services
and/or related fees, and the Exchange is not aware of any problems that
Users would have in complying with the proposed change.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\13\ in general, and with Section
6(b)(5),\14\ in particular, because it is designed to prevent
fraudulent and manipulative acts and practices, to promote just and
equitable principles of trade, to foster cooperation and coordination
with persons engaged in facilitating transactions in securities, to
remove impediments to and perfect the mechanism of a free and open
market and a national market system, and, in general, to protect
investors and the public interest, and because it is not designed to
permit unfair discrimination between customers, issuers, brokers, or
dealers.
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\13\ 15 U.S.C. 78f(b).
\14\ 15 U.S.C. 78f(b)(5).
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The Exchange believes that the proposed rule change would prevent
fraudulent and manipulative acts and practices, and would remove
impediments to and perfect the mechanism of a free and open market and
a national market system, and, in general, protect investors and the
public interest, because it would prevent a User from obtaining a
greater share of cabinets and power than the Existing Procedures
intended, and thereby facilitate a more equitable distribution of
cabinets and power.
As noted above, the Exchange has become aware that some Users are
attempting to circumvent the Combined Waitlist by submitting additional
orders in the names of entities affiliated with the User, in order to
avoid the Existing Procedures' prohibition against a User having more
than one order on the Combined Waitlist at the same time. The Exchange
believes that such actions by Users are contrary to the objectives of
the Existing Procedures, which were intended to foreclose Users from
obtaining a greater portion of the cabinets and power available than
the portion defined by the Cabinet Limits and Combined Limits. Unless
prohibited, such actions by Users could result in an inequitable
distribution of cabinets and power, with Users that are
[[Page 66360]]
willing to submit multiple orders in the names of their affiliates
obtaining more than their intended share of cabinets and power, to the
detriment of other Users seeking to purchase cabinets and power. The
proposed rule change to General Note 8 would address this concern.
The Exchange believes that the proposed amendments to the Existing
Procedures regarding Cabinet and Power Purchasing Limits in General
Note 7 would similarly prevent Users from circumventing the Cabinet
Limits and Combined Limits when there is no waitlist in effect. The
Exchange believes that having both Users and their Affiliates wait 30
days from the date of the signed order to purchase new cabinets or
power would foreclose Users' ability to use their Affiliates to obtain
a greater portion of the cabinets and power available. In this way, the
Exchange believes that that the proposed amendments to General Note 7
would prevent fraudulent and manipulative acts and practices, and would
remove impediments to and perfect the mechanism of a free and open
market and a national market system, and, in general, protect investors
and the public interest.
The proposed rule change would not unfairly discriminate between or
among market participants, as it would apply to all types and sizes of
market participants equally.
B. Self-Regulatory Organization's Statement on Burden on Competition
In accordance with Section 6(b)(8) of the Act,\15\ the Exchange
believes that the proposed rule change will not impose any burden on
competition that is not necessary or appropriate in furtherance of the
purposes of the Act. Rather, the proposed rule change is designed to
prevent Users from obtaining an unfair competitive advantage by
submitting multiple orders in the names of affiliated entities, in
order to avoid the Existing Procedures' prohibition against a User
having more than one order on the Cabinet Waitlist or the Combined
Waitlist at the same time and to obtain a greater portion of the
cabinets and power available than the portion defined by the Cabinet
Limits and Combined Limits. The proposed rule change would prevent a
User from obtaining this unfair competitive advantage, thereby
facilitating a more equitable distribution of cabinets and power.
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\15\ 15 U.S.C. 78f(b)(8).
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C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
No written comments were solicited or received with respect to the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \16\ and Rule 19b-4(f)(6) thereunder.\17\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.\18\
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\16\ 15 U.S.C. 78s(b)(3)(A)(iii).
\17\ 17 CFR 240.19b-4(f)(6).
\18\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires the Exchange to give the Commission written notice of its
intent to file the proposed rule change, along with a brief
description and text of the proposed rule change, at least five
business days prior to the date of filing of the proposed rule
change, or such shorter time as designated by the Commission. The
Exchange has satisfied this requirement.
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A proposed rule change filed under Rule 19b-4(f)(6) \19\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\20\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange requests
that the Commission waive the 30-day operative delay so that the
proposal may become operative immediately upon filing. The Exchange
believes that implementing the proposed rule change as soon as possible
would allow the Exchange to prevent Users from unfairly obtaining more
cabinets or power than the Existing Procedures were intended to
provide. The Commission believes that waiver of the operative delay is
consistent with the protection of investors and the public interest.
Accordingly, the Commission waives the 30-day operative delay and
designates the proposed rule change operative upon filing.\21\
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\19\ 17 CFR 240.19b-4(f)(6).
\20\ 17 CFR 240.19b-4(f)(6)(iii).
\21\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \22\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
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\22\ 15 U.S.C. 78s(b)(2)(B).
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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:
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#7a080f161f57191517171f140e093a091f19541d150c"><span class="__cf_email__" data-cfemail="c6b4b3aaa3eba5a9ababa3a8b2b586b5a3a5e8a1a9b0">[email protected]</span></a>. Please include
File Number SR-NYSECHX-2021-16 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 Number SR-NYSECHX-2021-16. 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 (<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 the
[[Page 66361]]
filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change. Persons submitting comments are cautioned that we do
not redact or edit personal identifying information from comment
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-
NYSECHX-2021-16 and should be submitted on or before December 13, 2021.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\23\
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\23\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-25357 Filed 11-19-21; 8:45 am]
BILLING CODE 8011-01-P
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