Notice2021-27815
Self-Regulatory Organizations; New York Stock Exchange LLC, NYSE American LLC, NYSE Arca, Inc., NYSE Chicago, Inc., and NYSE National, Inc.; Suspension of and Order Instituting Proceedings To Determine Whether To Approve or Disapprove Proposed Rule Changes To Offer Wireless Connectivity to CME Group Data and Establish Associated Fees
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
December 23, 2021
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 86 Issue 244 (Thursday, December 23, 2021)</title>
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[Federal Register Volume 86, Number 244 (Thursday, December 23, 2021)]
[Notices]
[Pages 73026-73029]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27815]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-93810; File Nos. SR-NYSE-2021-67, SR-NYSEAMER-2021-43,
SR-NYSEArca-2021-97, SR-NYSECHX-2021-17, SR-NYSENAT-2021-23]
Self-Regulatory Organizations; New York Stock Exchange LLC, NYSE
American LLC, NYSE Arca, Inc., NYSE Chicago, Inc., and NYSE National,
Inc.; Suspension of and Order Instituting Proceedings To Determine
Whether To Approve or Disapprove Proposed Rule Changes To Offer
Wireless Connectivity to CME Group Data and Establish Associated Fees
December 17, 2021.
I. Introduction
On November 3, 2021, New York Stock Exchange LLC, NYSE American
LLC, NYSE Arca, Inc., NYSE Chicago, Inc., and NYSE National, Inc.
(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 (``Act'') \1\ and Rule 19b-4
thereunder,\2\ a proposed rule change to amend their respective fee
schedules to offer wireless connectivity to CME Group, Inc. (``CME
Group'') market data (``CME Group Data'') and establish associated
fees. Each proposed rule change was immediately effective upon filing
with the Commission pursuant to Section 19(b)(3)(A) of the Act.\3\ The
proposed rule changes were published for comment in the Federal
Register on November 18, 2021.\4\ The Commission received no comment
letters on the proposals. Pursuant to Section 19(b)(3)(C) of the
Act,\5\ the Commission is hereby: (1) Temporarily suspending File Nos.
SR-NYSE-2021-67, SR-NYSEAMER-2021-43, SR-NYSEArca-2021-97, SR-NYSECHX-
2021-17, and SR-NYSENAT-2021-23; and (2) instituting proceedings to
determine whether to approve or disapprove File Nos. SR-NYSE-2021-67,
SR-NYSEAMER-2021-43, SR-NYSEArca-2021-97, SR-NYSECHX-2021-17, and SR-
NYSENAT-2021-23.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 15 U.S.C. 78s(b)(3)(A).
\4\ See Securities Exchange Act Release Nos. 93563 (November 12,
2021), 86 FR 64561 (November 18, 2021) (SR-NYSE-2021-67)
(``Notice''); 93561 (November 12, 2021), 86 FR 64580 (November 18,
2021) (SR-NYSEAMER-2021-43); 93564 (November 12, 2021), 86 FR 64570
(November 18, 2021) (SR-NYSEArca-2021-97); 93565 (November 12,
2021), 86 FR 64556 (November 18, 2021) (SR-NYSECHX-2021-17); and
93567 (November 12, 2021), 86 FR 64576 (November 18, 2021) (SR-
NYSENAT-2021-23). For ease of reference, citations to the Notice(s)
are to the Notice for SR-NYSE-2021-67.
\5\ 15 U.S.C. 78s(b)(3)(C).
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II. Description of the Proposed Rule Changes
The Exchanges propose to amend their respective fee schedules
regarding colocation services and fees to offer Users \6\ wireless
connectivity to CME Group Data for associated fees.\7\ The proposed
wireless connection would enable a User to receive CME Group Data \8\
in the colocation center in the Mahwah, New Jersey data center
(``Mahwah Data Center'').\9\
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\6\ For purposes of the Exchanges' colocation services, a
``User'' means any market participant that requests to receive
colocation services directly from the Exchanges. See Notice, supra
note 4, at 64561 n.4 (citing Securities Exchange Act Release No.
76008 (September 29, 2015), 80 FR 60190 (October 5, 2015) (SR-NYSE-
2015-40)).
\7\ The Exchanges state that they expect the proposed rule
change would become operative no later than March 31, 2022, and that
they will announce the date that the wireless connectivity to CME
Group Data will be available through a customer notice. See id. at
645621.
\8\ The User would pay an unaffiliated third party separately
for the data content. See id. at 64562.
\9\ See id. The Exchanges state that Intercontinental Exchange,
Inc. (``ICE'') operates the Mahwah Data Center through its ICE Data
Services (``IDS'') business. The Exchanges themselves are indirect
subsidiaries of ICE. According to the Exchanges, the proposed
service would be provided by IDS pursuant to an agreement with a
non-ICE entity, and IDS does not own the wireless network that would
be used to provide the service. See id. at 64561 n.8.
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The Exchanges state that the available CME Group Data would not
include all possible CME Group data feeds.\10\ Rather, the proposed
wireless service would only provide connectivity to a selection of CME
Group market data for which IDS determines there is User demand.\11\ A
User would then determine the symbols for which it would receive data,
which could include data regarding some or all of the symbols for which
IDS provides connectivity.\12\
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\10\ According to the Exchanges, there is limited bandwidth
available on the wireless network to colocation and currently dozens
of CME Group data feeds, so providing connectivity to all of these
feeds would use a large amount of bandwidth. See id. at 64562.
\11\ The Exchanges state that IDS similarly provides
connectivity to a selection of data, rather than entire feeds, over
a wireless connection to the Markham, Canada third party data
center. See id. The Exchanges also state that they understand that
the third parties providing wireless connectivity to CME Group
market data to the Mahwah Data Center and other data centers in New
Jersey follow a substantially similar model, offering connectivity
to a selection of market data rather than entire feeds. See id. at
64562 n.10.
\12\ The Exchanges state that they would not have visibility
into which portion of the CME Group Data a given User receives. See
id. at 64562.
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The Exchanges state that they currently provide Users with wireless
connections to eight market data feeds
[[Page 73027]]
or combinations of feeds from third party markets (``Existing Third
Party Data''), as well as wired connections to 43 market data
feeds.\13\ As with Existing Third Party Data, if a User purchased two
wireless connections to CME Group data, it would pay two non-recurring
initial charges.\14\ Each of these wireless connections would include
the use of one port for connectivity to CME Group Data.\15\ If a User
also connects to Existing Third Party Data, it would not be able to use
the same port that it uses for connectivity to CME Group Data to
connect to such Existing Third Party Data,\16\ and would receive the
use of one port for connectivity to Existing Third Party Data.\17\
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\13\ See id.
\14\ See id.
\15\ A User would not pay a fee for the use of such port. See
id.
\16\ See id.
\17\ See id. at 64562 n.11. The Exchanges state that a User that
connects to both CME Group Data and Existing Third Party Data would
accordingly have at least two ports, and would not be separately
charged for such ports. See id. at 64562. In addition, a User may
purchase additional ports. See id. at 64562 n.11.
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For each wireless connection to CME Group Data, the Exchanges
propose to charge a User a $5,000 non-recurring initial charge and a
monthly recurring charge of $6,000.\18\
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\18\ See id. at 64562. As specified in the Exchanges' respective
fee schedules, a User that incurs colocation fees for a particular
colocation service pursuant thereto would not be subject to
colocation fees for the same colocation service charged by the other
Exchanges. See id. at 64561 n.4
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III. Suspension of the Proposed Rule Changes
Pursuant to Section 19(b)(3)(C) of the Act,\19\ at any time within
60 days of the date of filing of an immediately effective proposed rule
change pursuant to Section 19(b)(1) of the Act,\20\ the Commission
summarily may temporarily suspend the change in the rules of a self-
regulatory organization (``SRO'') 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. As discussed below, the Commission believes a temporary
suspension of the proposed rule changes is necessary and appropriate to
allow for additional analysis of the proposed rule changes' consistency
with the Act and the rules thereunder.
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\19\ 15 U.S.C. 78s(b)(3)(C).
\20\ 15 U.S.C. 78s(b)(1).
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In support of the proposed fees, the Exchanges generally argue that
they are reasonable, equitable, and not unfairly discriminatory because
use of the proposed services is completely voluntary and alternatives
to them are available.\21\ The Exchanges maintain that they operate in
a highly competitive market in which exchanges and other vendors (e.g.,
Hosting Users \22\) offer colocation services as a means to facilitate
the trading and other market activities of those market participants
who believe that colocation enhances the efficiency of their
operations.\23\ The Exchanges maintain that fees charged for co-
location services are constrained by active competition for the order
flow of, and other business from, such market participants.\24\ The
Exchanges argue that Users that do not opt to use the Exchange's
proposed wireless connection would still be able to obtain CME Group
market data using other methods; namely, from another User, a third
party wireless connection, or through an IDS or third party fiber
connection.\25\
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\21\ See Notice, supra note 4, at 64563-65.
\22\ ``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, e.g., Securities Exchange Act Release No. 76008 (September 29,
2015), 80 FR 60190 (October 5, 2015) (SR-NYSE-2015-40).
\23\ See Notice, supra note 4, at 64563.
\24\ See id. at 64565.
\25\ See id. at 64563.
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Regarding third party wireless connections, the Exchanges assert
that, based on the information available to them, at least one market
participant provides wireless connectivity to CME Group market data in
the Mahwah Data Center, and does so at the same or similar speed as the
proposed connection to CME Group Data and at the same or similar
cost.\26\ According to the Exchanges, before entering the Mahwah Data
Center, the proposed wireless connection would lead to a pole that is
owned by a third party and is not on the grounds on the Mahwah Data
Center, from where a fiber connection would then lead into the Mahwah
Data Center.\27\ Upon entering the grounds of the Mahwah Data Center,
the proposed connection to CME Group Data and the existing third party
wireless connection to CME Group Data would follow the same route
within the Mahwah Data Center: Both would enter through a meet me room,
connect to equipment in colocation, and then connect to any Users that
are customers.\28\ The Exchanges state that therefore they do not
believe that IDS has an advantage over the third party in providing the
proposed connectivity.\29\
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\26\ See id.
\27\ See id.
\28\ See id.
\29\ See id.
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In addition, the Exchanges state that IDS already offers fiber
connections to CME Group market data to Users, and believe that at
least two third party market participants also offer such fiber
connections to CME Group market data.\30\ The Exchanges moreover state
that a User may create a proprietary wireless connection or connect
through another User in order to connect to CME Group market data, and
believe that at least two market participants already provide wireless
connectivity to CME Group market data to other data centers in New
Jersey.\31\
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\30\ See id. According to the Exchanges, market participants'
considerations in determining what connectivity to purchase may
include latency; the amount of network uptime; the equipment that
the network uses; the cost of the connection; and the applicable
contractual provisions. See id. The Exchanges state that wireless
messages have lower latency than messages travelling through fiber
optics. The Exchanges also state that, as a general rule, wireless
networks have less uptime than fiber networks. See id. at 64562. In
this regard, the Exchanges claim that fiber network connections may
be more attractive to some market participants, as they are more
reliable and less susceptible to weather conditions. See id. at
64563.
\31\ See id.
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The Exchanges also argue that the proposed pricing is reasonable
because it would allow the Exchanges to defray or cover the costs
associated with offering Users a wireless connection to CME Group Data,
while providing Users the benefit of receiving CME Group Data within
colocation and with a lower latency over fiber optic options.\32\ In
this regard, the Exchanges further claim that in order to offer the
proposed wireless connection to CME Group Data, they must provide,
maintain, and operate the Mahwah Data Center facility hardware and
technology infrastructure.\33\
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\32\ See id. at 64563-64. With respect to the proposed non-
recurring charge when a User initially purchases a wireless
connection to CME Group Data, the Exchanges also state that the
costs associated with installing wireless connections are
incrementally higher than those associated with installing fiber
optics-based solutions. See id. at 64564.
\33\ See id.
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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 that
alternatives to them are available.\34\ The Exchanges also argue that
proposed services would be available to all Users on an equal basis,
and that all Users that voluntarily select wireless connections to CME
Group Data would be charged the same amount for the same services.\35\
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\34\ See id. at 64564-65.
\35\ See id.
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Lastly, the Exchanges argue that the proposed rule changes do not
impose an
[[Page 73028]]
unnecessary or inappropriate burden on competition, likewise contending
that the proposed services are voluntary and that alternatives to them
are available.\36\ The Exchanges reiterate their argument that they
operate in a highly competitive market in which exchanges and other
vendors offer colocation services as a means to facilitate the trading
and other market activities of those market participants who believe
that colocation enhances the efficiency of their operations.\37\
According to the Exchanges, the proposals do not affect competition
among national securities exchanges or among members of the Exchanges,
but rather between IDS and its commercial competitors.\38\
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\36\ See id. at 64565.
\37\ See id.
\38\ See id.
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When exchanges file their proposed rule changes with the
Commission, including fee filings, they are required to provide a
statement supporting the proposal's basis under the Act and the rules
and regulations thereunder applicable to the exchange.\39\ The
instructions to Form 19b-4, on which exchanges file their proposed rule
changes, specify that such statement ``should be sufficiently detailed
and specific to support a finding that the proposed rule change is
consistent with [those] requirements.'' \40\
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\39\ See 17 CFR 240.19b-4 (Item 3 entitled ``Self-Regulatory
Organization's Statement of the Purpose of, and Statutory Basis for,
the Proposed Rule Change'').
\40\ See id.
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Section 6 of the Act, including Sections 6(b)(4), (5), and (8),
require the rules of an exchange to: (1) Provide for the equitable
allocation of reasonable fees among members, issuers, and other persons
using the exchange's facilities; \41\ (2) perfect the mechanism of a
free and open market and a national market system, protect investors
and the public interest, and not be designed to permit unfair
discrimination between customers, issuers, brokers, or dealers; \42\
and (3) not impose any burden on competition not necessary or
appropriate in furtherance of the purposes of the Act.\43\
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\41\ 15 U.S.C. 78f(b)(4).
\42\ 15 U.S.C. 78f(b)(5).
\43\ 15 U.S.C. 78f(b)(8).
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In temporarily suspending the Exchanges' proposed rule changes, the
Commission intends to further consider whether the proposed fees for
wireless connectivity to CME Group Data are consistent with the
statutory requirements applicable to a national securities exchange
under the Act. In particular, the Commission will consider whether the
proposed rule changes satisfy the standards under the Act and the rules
thereunder requiring, among other things, that an exchange's rules
provide for the equitable allocation of reasonable fees among members,
issuers, and other persons using its facilities; not permit unfair
discrimination between customers, issuers, brokers or dealers; and do
not impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act.\44\
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\44\ See 15 U.S.C. 78f(b)(4), (5), and (8), respectively.
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Therefore, the Commission finds that it is appropriate in the
public interest, for the protection of investors, and otherwise in
furtherance of the purposes of the Act, to temporarily suspend the
proposed rule changes.\45\
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\45\ For purposes of temporarily suspending the proposed rule
changes, the Commission has considered the proposed rules' impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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IV. Proceedings To Determine Whether To Approve or Disapprove the
Proposed Rule Changes
In addition to temporarily suspending the proposals, the Commission
also hereby institutes proceedings pursuant to Sections 19(b)(3)(C)
\46\ and 19(b)(2)(B) of the Act \47\ to determine whether the
Exchanges' proposed rule changes should be approved or disapproved.
Institution of proceedings does not indicate that the Commission has
reached any conclusions with respect to any of the issues involved.
Rather, the Commission seeks and encourages interested persons to
provide additional comment on the proposed rule changes to inform the
Commission's analysis of whether to approve or disapprove the proposed
rule changes.
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\46\ 15 U.S.C. 78s(b)(3)(C). Once the Commission temporarily
suspends a proposed rule change, Section 19(b)(3)(C) of the Act
requires that the Commission institute proceedings under Section
19(b)(2)(B) to determine whether a proposed rule change should be
approved or disapproved.
\47\ 15 U.S.C. 78s(b)(2)(B).
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Pursuant to Section 19(b)(2)(B) of the Act,\48\ the Commission is
providing notice of the grounds for possible disapproval under
consideration:
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\48\ 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.
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<bullet> Whether the Exchanges have demonstrated how their proposed
fees 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;'' \49\
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\49\ 15 U.S.C. 78f(b)(4).
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<bullet> Whether the Exchanges have demonstrated how their proposed
fees are consistent with Section 6(b)(5) of the Act, which requires,
among other things, that the rules of a national securities exchange
not be ``designed to permit unfair discrimination between customers,
issuers, brokers, or dealers;'' \50\ and
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\50\ 15 U.S.C. 78f(b)(5).
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<bullet> Whether the Exchanges have demonstrated how their proposed
fees 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].'' \51\
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\51\ 15 U.S.C. 78f(b)(8).
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As discussed in Section III above, the Exchanges made various
arguments in support of their proposals. The Commission believes that
there are questions as to whether the Exchanges have provided
sufficient information to demonstrate that the proposed fees 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 [Act]
and the rules and regulations issued thereunder . . . is on the [SRO]
that proposed the rule change.'' \52\ 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,\53\ and any failure of an SRO to provide this information may
result in the Commission not having a sufficient basis to make an
affirmative finding that a proposed rule change is consistent with the
Act and the applicable rules and regulations.\54\
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\52\ 17 CFR 201.700(b)(3).
\53\ See id.
\54\ See id.
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The Commission is instituting proceedings to allow for additional
consideration and comment on the issues raised herein, including as to
whether the proposed fees are consistent with the Act, and
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,
[[Page 73029]]
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; as well as any other provision of the Act, or the rules and
regulations thereunder.\55\
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\55\ See 15 U.S.C. 78f(b)(4), (5), and (8).
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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 January 13, 2022.
Rebuttal comments should be submitted by January 27, 2022. 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.\56\
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\56\ 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).
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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
proposed rule changes 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#a6d4d3cac38bc5c9cbcbc3c8d2d5e6d5c3c588c1c9d0"><span class="__cf_email__" data-cfemail="a7d5d2cbc28ac4c8cacac2c9d3d4e7d4c2c489c0c8d1">[email protected]</span></a>. Please include
File Nos. SR-NYSE-2021-67, SR-NYSEAMER-2021-43, SR-NYSEArca-2021-97,
SR-NYSECHX-2021-17, SR-NYSENAT-2021-23 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-2021-67, SR-NYSEAMER-
2021-43, SR-NYSEArca-2021-97, SR-NYSECHX-2021-17, and SR-NYSENAT-2021-
23. The 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 changes that
are filed with the Commission, and all written communications relating
to the proposed rule changes 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-2021-67, SR-NYSEAMER-
2021-43, SR-NYSEArca-2021-97, SR-NYSECHX-2021-17, and SR-NYSENAT-2021-
23 and should be submitted on or before January 13, 2022. Rebuttal
comments should be submitted by January 27, 2022.
VI. Conclusion
It is therefore ordered, pursuant to Section 19(b)(3)(C) of the
Act,\57\ that File Nos. SR-NYSE-2021-67, SR-NYSEAMER-2021-43, SR-
NYSEArca-2021-97, SR-NYSECHX-2021-17, and SR-NYSENAT-2021-23, be and
hereby are, temporarily suspended. In addition, the Commission is
instituting proceedings to determine whether the proposed rule changes
should be approved or disapproved.
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\57\ 15 U.S.C. 78s(b)(3)(C).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\58\
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\58\ 17 CFR 200.30-3(a)(57) and (58).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-27815 Filed 12-22-21; 8:45 am]
BILLING CODE 8011-01-P
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