Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Offer Partial Cabinets and Cabinet Upgrades As Part of Its Co-location Services and To Amend the NYSE MKT Equities Price List and the NYSE Amex Options Fee Schedule To Reflect the New Services, 77750-77754 [2013-30594]

Download as PDF 77750 Federal Register / Vol. 78, No. 247 / Tuesday, December 24, 2013 / Notices SECURITIES AND EXCHANGE COMMISSION of the most significant parts of such statements. [Release No. 34–71131; File No. SR– NYSEMKT–2013–103] A. Self-Regulatory Organization’s Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Offer Partial Cabinets and Cabinet Upgrades As Part of Its Co-location Services and To Amend the NYSE MKT Equities Price List and the NYSE Amex Options Fee Schedule To Reflect the New Services December 18, 2013. 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 December 12, 2013, NYSE MKT LLC (the ‘‘Exchange’’ or ‘‘NYSE MKT’’) 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. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to offer partial cabinets and cabinet upgrades as part of its co-location services and to amend the NYSE MKT Equities Price List (‘‘Price List’’) and the NYSE Amex Options Fee Schedule (‘‘Fee Schedule’’) to reflect the new services. The Exchange proposes to implement the fee change effective December 16, 2013. The text of the proposed rule change is available on the Exchange’s Web site at www.nyse.com, at the principal office of the Exchange, and at the Commission’s Public Reference Room. emcdonald on DSK67QTVN1PROD with NOTICES 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, 1 15 U.S.C. 78s(b)(1). U.S.C. 78a. 3 17 CFR 240.19b–4. 2 15 VerDate Mar<15>2010 16:36 Dec 23, 2013 Jkt 232001 1. Purpose The Exchange proposes to offer partial cabinets and cabinet upgrades as part of its co-location services and to amend the Price List and the Fee Schedule to reflect the new services.4 The Exchange proposes to implement the fee change effective December 16, 2013. Partial Cabinets A User is able to request a physical cabinet to house its servers and other equipment in the data center.5 Currently, a User only has the option of receiving an entire cabinet that is dedicated solely to that User (‘‘dedicated cabinet’’). The Exchange proposes to expand its co-location services to offer a partial cabinet alternative (‘‘partial cabinet’’). Partial cabinets would be made available in increments of eight-rack units of space.6 The Exchange would allocate each 4 The Securities and Exchange Commission (‘‘Commission’’) initially approved the Exchange’s co-location services in Securities Exchange Act Release No. 62961 (September 21, 2010), 75 FR 59299 (September 27, 2010) (SR–NYSEAmex–2010– 80) (the ‘‘Original Co-location Approval’’). The Exchange operates a data center in Mahwah, New Jersey (the ‘‘data center’’) from which it provides co-location services to Users. The Exchange’s colocation services allow Users to rent space in the data center so they may locate their electronic servers in close physical proximity to the Exchange’s trading and execution system. See id. at 59299. 5 For purposes of the Exchange’s co-location services, the term ‘‘User’’ includes (i) member organizations, as that term is defined in the definitions section of the General and Floor Rules of the NYSE MKT Equities Rules, and ATP Holders, as that term is defined in NYSE Amex Options Rule 900.2NY(5); (ii) Sponsored Participants, as that term is defined in Rule 123B.30(a)(ii)(B)—Equities and NYSE Amex Options Rule 900.2NY(77); and (iii) non-member organization and non-ATP Holder broker-dealers and vendors that request to receive co-location services directly from the Exchange. See, e.g., Securities Exchange Act Release Nos. 65974 (December 15, 2011), 76 FR 79249 (December 21, 2011) (SR–NYSEAmex–2011–81) and 65975 (December 15, 2011), 76 FR 79233 (December 21, 2011) (SR–NYSEAmex–2011–82). As specified in the Price List and the Fee Schedule, a User that incurs co-location fees for a particular co-location service pursuant thereto would not be subject to colocation fees for the same co-location service charged by the Exchange’s affiliates New York Stock Exchange LLC and NYSE Arca, Inc. See Securities Exchange Act Release No. 70176 (August 13, 2013), 78 FR 50471 (August 19, 2013) (SR– NYSEMKT–2013–67). 6 A full cabinet includes enough space for approximately four separate eight-rack units. The Exchange would submit a separate proposed rule change if it decided to change the manner in which space is allocated within a partial cabinet (e.g., sixrack units instead of eight-rack units). PO 00000 Frm 00108 Fmt 4703 Sfmt 4703 eight-rack unit up to two kilowatts (‘‘kWs’’) of power.7 Consistent with existing pricing for dedicated cabinets, the Exchange would charge Users an initial fee and a monthly recurring fee for partial cabinets. The initial fee would be $2,500 per eight-rack unit. The monthly recurring fee would be $1,500 for one kW of allocated power and $2,700 for two kWs of allocated power.8 The Exchange is proposing this partial cabinet alternative in order to assist Users that do not need a dedicated cabinet in the data center, such as those Users with minimal power or cabinet space demands, including those Users for which the costs attendant with a dedicated cabinet are too burdensome. However, Users that do require a dedicated cabinet could continue to request them.9 This proposed alternative would not impact current pricing for dedicated cabinets. The Exchange would amend the existing 7 The Exchange would submit a separate proposed rule change if it decided to change the manner in which power is allocated to partial cabinets (e.g., more than two kWs of power allocated per eight-rack unit). 8 The second kW would therefore cost $1,200. Power allocated to a User of a partial cabinet would be considered separate from power allocated to the same User if it also has dedicated cabinets in the data center. 9 For purposes of comparison, if a User ordered a single eight-rack unit in a partial cabinet with two kWs of power allocation, such User would be charged $2,500 in initial cabinet fees (compared to $5,000 for a dedicated cabinet) and $2,700 in recurring monthly fees (compared to $4,800 for a dedicated cabinet with the minimum power allocation of four kWs) for total charges of $34,900 within the first year (compared to $62,600 for a dedicated cabinet). A partial cabinet would therefore be a more economical option. If a User ordered two separate eight-rack units in a partial cabinet with two kWs of power allocation each (four kWs total), such User would be charged $5,000 in initial cabinet fees (identical to the $5,000 for a dedicated cabinet) and $5,400 in recurring monthly fees (compared to $4,800 for a dedicated cabinet with the minimum power allocation of four kWs) for total charges of $69,800 within the first year (compared to $62,600 for a dedicated cabinet). A dedicated cabinet would therefore be a more economical option. Based on the proposed pricing, the Exchange believes that the partial cabinet option would be selected by Users with power demands of three kWs or less. If a User’s power demands are four kWs or greater it would likely choose the dedicated cabinet option. Accordingly, if a User ordered two separate eight-rack units in a partial cabinet with two kWs of power allocation for one of the units and one kW of power allocation for the other unit (three kWs total), such User would be charged $5,000 in initial cabinet fees (identical to the $5,000 for a dedicated cabinet) and $4,200 in recurring monthly fees (compared to $4,800 for a dedicated cabinet with the minimum power allocation of four kWs) for total charges of $55,400 within the first year (compared to $62,600 for a dedicated cabinet). A fourth incremental kW would add an additional $14,400 in cost (i.e., $1,200 × 12), at which point a dedicated cabinet would be a more economical option. E:\FR\FM\24DEN1.SGM 24DEN1 Federal Register / Vol. 78, No. 247 / Tuesday, December 24, 2013 / Notices table in the Price List and the Fee Schedule to reflect the pricing options. Users that have several cabinets within the data center that wish to enhance privacy around their cabinets are able to purchase cages. Because more than one User could be using a partial cabinet, partial cabinets could not be located in a User’s cage. Initial Install Services Fee In conjunction with the proposed offering of partial cabinets, the Exchange also proposes to charge a lower Initial Install Services fee for a partial cabinet. The proposed fee would be lower because the services required of the Exchange for the installation of an eight-rack unit in a partial cabinet would be less than the services required for the installation of a dedicated cabinet. The current Initial Install Services fee is $800 per dedicated cabinet, which includes initial racking of equipment in the dedicated cabinet and provision of up to 10 cables and four hours of labor. The Exchange proposes to charge a $400 Initial Install Services fee for an eight-rack unit in a partial cabinet, which would include initial racking of equipment and provision of up to five cables and two hours of labor. emcdonald on DSK67QTVN1PROD with NOTICES Cabinet Upgrades The Exchange makes dedicated cabinets available with standard power allocation of either four or eight kWs.10 However, Users that require additional power allocation may prefer to maintain their hardware within a particular 10 A User is generally able to determine an approximate amount of power that it will typically consume in its dedicated cabinet. A User would request either a four or eight kW dedicated cabinet based on its anticipated peak power consumption. A User’s typical power consumption would be expected to be less than this anticipated peak power consumption, but could also rise above this anticipated peak power consumption during certain times of the day or certain periods of the month when equipment in the cabinet consumes additional power. The Exchange allocates power in circuits with ‘‘baseline’’ capacity of either four or eight kWs. A circuit could trip when power consumption exceeds capacity. To avoid this, the Exchange allocates ‘‘buffer’’ capacity in addition to the baseline capacity. When combined, this ‘‘total’’ allocation is approximately 80% of the amount of power consumption that would trip a circuit. The ‘‘total’’ power capacity allocated to a four kW dedicated cabinet is slightly more than five kWs. The ‘‘total’’ power capacity allocated to an eight kW dedicated cabinet is between 10 and 11 kWs. The Exchange charges Users for the full baseline amount of power allocated to dedicated cabinets (i.e., either four or eight kWs) regardless of whether such allocated power is consumed and, if any of the buffer is used, for that power consumption as well on a per kW basis. For example, if a User consumes its four kWs of baseline allocation and a fraction of an additional kW, the Exchange would charge the User for five kWs total. VerDate Mar<15>2010 16:36 Dec 23, 2013 Jkt 232001 dedicated cabinet rather than add an additional dedicated cabinet. Specifically, Users may develop their hardware infrastructure within a particular dedicated cabinet in such a way that, if expansion of such hardware is needed, it can be accomplished within the space constraints of that particular dedicated cabinet. If this type of User requires additional power allocation, it would likely want to so modify its existing cabinet rather than taking an additional dedicated cabinet due to the expense of re-developing its infrastructure within such additional dedicated cabinet. A $5,000 initial dedicated cabinet fee would also apply if the User received an additional dedicated cabinet. The Exchange proposes to offer a new ‘‘Cabinet Upgrade’’ alternative and related fee in order to accommodate requests for additional power allocation beyond the typical amount that the Exchange allocates per dedicated cabinet, at which point the Exchange must upgrade the cabinet’s power capacity. These Cabinet Upgrades typically entail overhauling wiring, circuitry and hardware for the dedicated cabinet so that it can handle the increased power. Cabinet Upgrades require additional Exchange resources beyond those covered under the initial dedicated cabinet fee or the Initial Install Services fee, including with respect to labor and equipment. The Exchange proposes to charge a one-time Cabinet Upgrade fee of $9,200 when a User requests additional power allocation for its dedicated cabinet such that the Exchange must upgrade the dedicated cabinet’s capacity. A Cabinet Upgrade would be required when power allocation demands exceed 11 kWs.11 However, in order to incentivize Users to upgrade their dedicated cabinets, the Exchange proposes that the Cabinet Upgrade fee would be $4,600 for a User that submits a written order for a Cabinet Upgrade by January 31, 2014, provided that the Cabinet Upgrade becomes fully operational by March 31, 2014. General As is the case with all Exchange colocation arrangements, (i) neither a User nor any of the User’s customers would be permitted to submit orders directly to the Exchange unless such User or customer is a member organization, an ATP Holder, a Sponsored Participant or an agent thereof (e.g., a service bureau 11 A dedicated cabinet could be upgraded to accommodate a total allocation of up to approximately 20 kWs of power, after which a User would require an additional dedicated cabinet. PO 00000 Frm 00109 Fmt 4703 Sfmt 4703 77751 providing order entry services); (ii) use of the co-location services proposed herein would be completely voluntary and available to all Users on a nondiscriminatory basis; 12 and (iii) a User would only incur one charge for the particular co-location service described herein, regardless of whether the User connects only to the Exchange or to the Exchange and one or both of its affiliates.13 The proposed change is not otherwise intended to address any other issues relating to co-location 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,14 in general, and furthers the objectives of Sections 6(b)(5) of the Act,15 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 regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to, and perfect the mechanisms 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. The Exchange believes that the proposal is not designed to permit unfair discrimination between customers, issuers, brokers, or dealers. First, the proposed partial cabinets would make an alternative available to Users that do not need a dedicated cabinet in the data center, such as those Users with minimal power or cabinet 12 As is currently the case, Users that receive colocation services from the Exchange will not receive any means of access to the Exchange’s trading and execution systems that is separate from, or superior to, that of other Users. In this regard, all orders sent to the Exchange enter the Exchange’s trading and execution systems through the same order gateway, regardless of whether the sender is co-located in the data center or not. In addition, co-located Users do not receive any market data or data service product that is not available to all Users, although Users that receive co-location services normally would expect reduced latencies in sending orders to, and receiving market data from, the Exchange. 13 See SR–NYSEMKT–2013–67, supra note 5 at 50471. The Exchange’s affiliates have also submitted the same proposed rule change to provide for partial cabinets, Cabinet Upgrades and related fees. See SR–NYSE–2013–81 and SR– NYSEArca–2013–143. 14 15 U.S.C. 78f(b). 15 15 U.S.C. 78f(b)(5). E:\FR\FM\24DEN1.SGM 24DEN1 emcdonald on DSK67QTVN1PROD with NOTICES 77752 Federal Register / Vol. 78, No. 247 / Tuesday, December 24, 2013 / Notices space demands, including those Users for which the costs attendant with a dedicated cabinet are too burdensome. However, Users that do require a dedicated cabinet could continue to request them. Second, the proposed Cabinet Upgrades would make an alternative available to Users that have already invested in hardware infrastructure within a particular dedicated cabinet and that require additional power allocation, but do not want an additional dedicated cabinet due to the expense of re-developing infrastructure within such additional dedicated cabinet. The Exchange believes that the proposal would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because it would provide Users with additional choices with respect to the optimal size of their cabinets and the number of cabinets they utilize, which could therefore lead to cost savings that Users may choose to pass on to their customers. The Exchange also believes that the proposed rule change is consistent with Section 6(b)(4) of the Act,16 in particular, because it provides for the equitable allocation of reasonable dues, fees, and other charges among its members, issuers and other persons using its facilities and does not unfairly discriminate between customers, issuers, brokers or dealers. Overall, the Exchange believes that the proposed change is consistent with the Act because the Exchange offers the colocation services described herein (i.e., the proposed partial cabinets and Cabinet Upgrades) as a convenience to Users, but in doing so will incur certain costs, including costs related to the data center facility, hardware and equipment and costs related to personnel required for initial installation and ongoing monitoring, support and maintenance of such services. Additionally, the proposed fees relate to the level of services provided by the Exchange and, in turn, received by the User. The Exchange believes that the proposed pricing for partial cabinets is reasonable because a partial cabinet would be a more economical option for certain Users that require only limited power or limited cabinet space, as compared to pricing for a dedicated cabinet, whereas a dedicated cabinet would be a more economical option for certain Users that have higher power or space demands.17 The proposed pricing for partial cabinets and the Cabinet 16 15 U.S.C. 78f(b)(4). e.g., supra note 9. 17 See, VerDate Mar<15>2010 16:36 Dec 23, 2013 Jkt 232001 Upgrade fee is also reasonable because it would allow Users to select options that are better suited for their needs (e.g., a dedicated cabinet compared to a partial cabinet and a Cabinet Upgrade compared to an additional dedicated cabinet). The proposed pricing for partial cabinets is also reasonable because it is comparable to pricing for ‘‘shared cabinet space’’ available to users of colocation facilities of The NASDAQ Stock Market LLC (‘‘NASDAQ’’).18 Specifically, NASDAQ charges $600 for 500 watts (‘‘Ws’’) of power allocation in shared cabinet space. If a NASDAQ colocation user were to request up to two kWs of allocated power in shared cabinet space it would be charged $2,400 per month (one kW is equal to 1,000 Ws and two kWs is therefore equal to 2,000 Ws), which is comparable to the proposed $2,700 monthly recurring charge for the same power allocation in an eight-rack unit in a partial cabinet in the data center. However, the Exchange understands that each unit of NASDAQ shared cabinet space is smaller in space than the partial cabinets proposed by the Exchange (e.g., four-rack units on NASDAQ compared to eight-rack units in the Exchange’s data center).19 The Exchange also believes that the proposed Initial Install Services fee for a partial cabinet is reasonable because it is 50% of the dedicated cabinet Initial Install Services fee and likewise provides for 50% of the resources (i.e., two hours of labor instead of four hours and five cables instead of 10 cables) associated with the dedicated cabinet Initial Install Services fee. The Exchange also believes that the Cabinet Upgrade fee is reasonable because it would function similar to the NASDAQ charges for comparable services. In particular, NASDAQ charges a premium initial installation fee of $7,000 for a ‘‘Super High Density Cabinet’’ (between 10 kWs and 17.3 kWs) compared to $3,500 for other types of cabinets with less power.20 The Exchange charges only one flat rate for its initial cabinet fees ($5,000), regardless of the amount of power allocation. NASDAQ also charges an additional $7,000 for a Super High Density Cabinet Kit in relation to the additional customized equipment required to adequately cool a Super 18 See NASDAQ Rule 7034. initial fee for shared cabinet space is charged on an hourly basis and is therefore difficult to compare to the proposed initial fee for partial cabinets in the Exchange’s data center, which is fixed. 20 See supra note 18. 19 NASDAQ’s PO 00000 Frm 00110 Fmt 4703 Sfmt 4703 High Density Cabinet.21 The Exchange understands that NASDAQ therefore charges at least $10,500 in additional initial costs for a Super High Density Cabinet compared to other cabinets (compared to the proposed $9,200 Cabinet Upgrade fee). The Exchange also believes that the proposed Cabinet Upgrade fee is reasonable because it would permit the Exchange to recover its expenses related to Cabinet Upgrades. The proposed 50% reduced Cabinet Upgrade fee for a User that submits a written order for a Cabinet Upgrade by January 31, 2014, provided that the Cabinet Upgrade becomes fully operational by March 31, 2014, is reasonable because it would provide an incentive for Users to upgrade the capacity of their dedicated cabinets. As with fees for existing co-location services, the fees proposed herein would be charged only to those Users that voluntarily select the related services, which would be available to all Users. The Exchange therefore believes that the proposed change is equitable and not unfairly discriminatory because it would result in fees being charged only to Users that voluntarily select to receive the corresponding services and because those services would be available to all Users. Furthermore, the Exchange believes that the services and fees proposed herein are not unfairly discriminatory and are equitably allocated because, in addition to the services being completely voluntary, they are available to all Users on an equal basis (i.e., the same products and services are available to all Users). For the reasons above, the proposed change would not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange. Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange’s statement regarding the burden on competition. For these reasons, the Exchange believes that the proposal is consistent with the Act. B. Self-Regulatory Organization’s Statement on Burden on Competition In accordance with Section 6(b)(8) of the Act,22 the Exchange believes that the proposed rule change would not impose any burden on competition that is not necessary or appropriate in furtherance 21 Id. 22 15 E:\FR\FM\24DEN1.SGM U.S.C. 78f(b)(8). 24DEN1 Federal Register / Vol. 78, No. 247 / Tuesday, December 24, 2013 / Notices emcdonald on DSK67QTVN1PROD with NOTICES of the purposes of the Act because any market participants that are otherwise capable of satisfying any applicable colocation fees, requirements, terms and conditions established from time to time by the Exchange could have access to the co-location services provided in the data center. This is also true because, in addition to the services being completely voluntary, they are available to all Users on an equal basis (i.e., the same range of products and services are available to all Users). The Exchange believes that the proposed partial cabinet and Cabinet Upgrade alternatives would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act because they would enhance competition by making additional choices in services available to Users and thereby satisfy User demand for partial cabinets and for dedicated cabinets with increased power capacity. The proposed change would also enhance competition because it would help Users meet the growing needs of their business operations. Moreover, the Exchange believes that the proposed change would enhance competition between competing marketplaces by enabling the Exchange to provide services to Users that are similar to services available on other markets. In this regard, the Exchange notes that NASDAQ also makes a shared cabinet space option and a ‘‘Super High Density Cabinet’’ option available to users of its colocation facilities.23 Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if, for example, they deem fee levels at a particular venue to be excessive or if they determine that another venue’s products and services are more competitive than on the Exchange. In such an environment, the Exchange must continually review, and consider adjusting, the services it offers as well as any corresponding fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment. 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. 23 See supra note 18. VerDate Mar<15>2010 16:36 Dec 23, 2013 Jkt 232001 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 24 and Rule 19b–4(f)(6) thereunder.25 Because the foregoing proposed rule change does not: (1) Significantly affect the protection of investors or the public interest; (2) impose any significant burden on competition; and (3) by its terms does not become operative for 30 days after the date of this filing, 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 26 and Rule 19b– 4(f)(6) thereunder.27 A proposed rule change filed under Rule 19b–4(f)(6) 28 normally does not become operative prior to 30 days after the date of the filing. However, pursuant to Rule 19b4(f)(6)(iii),29 the Commission may designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. The Exchange requested waiver of the 30-day operative delay in order to immediately implement the proposed rule change so that Users may experience the benefits of such proposed change as soon as possible. The Exchange stated that the proposal would merely make smaller increments of a standard, dedicated cabinet available on a voluntary basis to Users that do not require a full, dedicated cabinet. Users that do require full, dedicated cabinets could continue to request them. The Exchange also stated that the proposal would provide greater flexibility to Users that prefer to increase power allocation in a particular dedicated cabinet rather than incurring the cost of maintaining an additional dedicated cabinet. The Exchange further represented that it operates in a highly competitive market in which several competing exchanges already offer 24 15 U.S.C. 78s(b)(3)(A)(iii). CFR 240.19b–4(f)(6). 26 15 U.S.C. 78s(b)(3)(A). 27 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– 4(f)(6)(iii) requires a self-regulatory organization to provide the Commission with 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 met this requirement. 28 17 CFR 240.19b–4(f)(6). 29 17 CFR 240.19b–4(f)(6)(iii). 25 17 PO 00000 Frm 00111 Fmt 4703 Sfmt 4703 77753 similar co-location services. For the above reasons, the Commission believes waiver of the operative delay is appropriate and hereby grants the Exchange’s request and designates the proposal operative upon filing.30 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) 31 of the Act to determine whether the proposed rule change should be approved or disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission’s Internet comment form (http://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– NYSEMKT–2013–103 on the subject line. Paper Comments • Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. All submissions should refer to File Number SR–NYSEMKT–2013–103. 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 Web site (http://www.sec.gov/ rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the 30 For purposes only of waiving the 30-day operative delay, the Commission has also considered the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). 31 15 U.S.C. 78s(b)(2)(B). E:\FR\FM\24DEN1.SGM 24DEN1 77754 Federal Register / Vol. 78, No. 247 / Tuesday, December 24, 2013 / Notices 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 Web site viewing and printing in the Commission’s Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR– NYSEMKT–2013–103 and should be submitted on or before January 14, 2014. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.32 Kevin M. O’Neill, Deputy Secretary. [FR Doc. 2013–30594 Filed 12–23–13; 8:45 am] BILLING CODE 8011–01–P [Release No. 34–71124; File No. SR–CBOE– 2013–123] Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to the Credit Option Margin Pilot Program December 18, 2013. emcdonald on DSK67QTVN1PROD with NOTICES Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the ‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on December 12, 2013, Chicago Board Options Exchange, Incorporated (the ‘‘Exchange’’ or ‘‘CBOE’’) 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 Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to extend its Credit Option Margin Pilot Program CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 1 15 VerDate Mar<15>2010 16:36 Dec 23, 2013 Jkt 232001 II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose SECURITIES AND EXCHANGE COMMISSION 32 17 through January 16, 2015. The text of the proposed rule change is available on the Exchange’s Web site (http:// www.cboe.com/AboutCBOE/ CBOELegalRegulatoryHome.aspx), at the Exchange’s Office of the Secretary, and at the Commission’s Public Reference Room. On February 2, 2011, the Commission approved the Exchange’s proposal to establish a Credit Option Margin Pilot Program (‘‘Program’’).3 The proposal became effective on a pilot basis to run on a parallel track with Financial Industry Regulatory Authority (‘‘FINRA’’) Rule 4240 that similarly operates on an interim pilot basis.4 On January 17, 2012, the Exchange filed a rule change to, among other things, decouple the Program with the FINRA program and to extend the expiration date of the Program to January 17, 2013.5 The Program, however, continues to be substantially similar to the provisions of the FINRA program. Subsequently, the Exchange filed a rule change to extend the 3 See Securities Exchange Act Release No. 63819 (February 2, 2011), 76 FR 6838 (February 8, 2011) order approving (SR–CBOE–2010–106). To implement the Program, the Exchange amended Rule 12.3(l), Margin Requirements, to make CBOE’s margin requirements for Credit Options consistent with Financial Industry Regulatory Authority (‘‘FINRA’’) Rule 4240, Margin Requirements for Credit Default Swaps. CBOE’s Credit Options (i.e., Credit Default Options and Credit Default Basket Options) are analogous to credit default swaps. 4 See Securities Exchange Act Release No. 59955 (May 22, 2009), 74 FR 25586 (May 28, 2009) (Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change; SR–FINRA–2009–012). 5 See Securities and Exchange Act Release No. 66163 (January 17, 2012), 77 FR 3318 (January 23, 2012) (SR–CBOE–2012–007). PO 00000 Frm 00112 Fmt 4703 Sfmt 4703 program until January 17, 2014.6 The Exchange believes that extending the expiration date of the Program further will allow for further analysis of the Program and a determination of how the Program should be structured in the future. Thus, the Exchange is now currently proposing to extend the duration of the Program until January 16, 2015. The Exchange notes that there are currently Credit Options listed for trading on the Exchange that have open interest. As a result, the Exchange believes that is in the public interest for the Program to continue uninterrupted. In the future, if the Exchange proposes an additional extension of the Credit Option Margin Pilot Program or proposes to make the Program permanent, then the Exchange will submit a filing proposing such amendments to the Program. 2. Statutory Basis The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.7 Specifically, the Exchange believes the proposed rule change is consistent with the Section 6(b)(5) 8 requirements that the rules of an exchange be 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 regulating, clearing, settling, processing information with respect to, and facilitation 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. Additionally, the Exchange believes the proposed rule change is consistent with the Section 6(b)(5) 9 requirement that the rules of an exchange not be designed to permit unfair discrimination between customers, issuers, brokers, or dealers. In particular, the Exchange believes that the proposed rule change will further the purposes of the Act because, consistent with the goals of the Commission at the initial adoption of the program, the margin requirements set forth by the proposed rule change will help to stabilize the financial markets. In addition, the proposed rule 6 See Securities and Exchange Act Release No. 68539 (December 27, 2012), 78 FR 138 (January 2, 2013) (SR–CBOE–2012–125). 7 15 U.S.C. 78f(b). 8 15 U.S.C. 78f(b)(5). 9 Id. E:\FR\FM\24DEN1.SGM 24DEN1

Agencies

[Federal Register Volume 78, Number 247 (Tuesday, December 24, 2013)]
[Notices]
[Pages 77750-77754]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-30594]



[[Page 77750]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-71131; File No. SR-NYSEMKT-2013-103]


Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and 
Immediate Effectiveness of Proposed Rule Change To Offer Partial 
Cabinets and Cabinet Upgrades As Part of Its Co-location Services and 
To Amend the NYSE MKT Equities Price List and the NYSE Amex Options Fee 
Schedule To Reflect the New Services

December 18, 2013.
    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 December 12, 2013, NYSE MKT LLC (the ``Exchange'' or 
``NYSE MKT'') 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 offer partial cabinets and cabinet 
upgrades as part of its co-location services and to amend the NYSE MKT 
Equities Price List (``Price List'') and the NYSE Amex Options Fee 
Schedule (``Fee Schedule'') to reflect the new services. The Exchange 
proposes to implement the fee change effective December 16, 2013. The 
text of the proposed rule change is available on the Exchange's Web 
site at www.nyse.com, 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 offer partial cabinets and cabinet 
upgrades as part of its co-location services and to amend the Price 
List and the Fee Schedule to reflect the new services.\4\ The Exchange 
proposes to implement the fee change effective December 16, 2013.
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    \4\ The Securities and Exchange Commission (``Commission'') 
initially approved the Exchange's co-location services in Securities 
Exchange Act Release No. 62961 (September 21, 2010), 75 FR 59299 
(September 27, 2010) (SR-NYSEAmex-2010-80) (the ``Original Co-
location Approval''). The Exchange operates a data center in Mahwah, 
New Jersey (the ``data center'') from which it provides co-location 
services to Users. The Exchange's co-location services allow Users 
to rent space in the data center so they may locate their electronic 
servers in close physical proximity to the Exchange's trading and 
execution system. See id. at 59299.
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Partial Cabinets
    A User is able to request a physical cabinet to house its servers 
and other equipment in the data center.\5\ Currently, a User only has 
the option of receiving an entire cabinet that is dedicated solely to 
that User (``dedicated cabinet''). The Exchange proposes to expand its 
co-location services to offer a partial cabinet alternative (``partial 
cabinet''). Partial cabinets would be made available in increments of 
eight-rack units of space.\6\ The Exchange would allocate each eight-
rack unit up to two kilowatts (``kWs'') of power.\7\ Consistent with 
existing pricing for dedicated cabinets, the Exchange would charge 
Users an initial fee and a monthly recurring fee for partial cabinets. 
The initial fee would be $2,500 per eight-rack unit. The monthly 
recurring fee would be $1,500 for one kW of allocated power and $2,700 
for two kWs of allocated power.\8\
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    \5\ For purposes of the Exchange's co-location services, the 
term ``User'' includes (i) member organizations, as that term is 
defined in the definitions section of the General and Floor Rules of 
the NYSE MKT Equities Rules, and ATP Holders, as that term is 
defined in NYSE Amex Options Rule 900.2NY(5); (ii) Sponsored 
Participants, as that term is defined in Rule 123B.30(a)(ii)(B)--
Equities and NYSE Amex Options Rule 900.2NY(77); and (iii) non-
member organization and non-ATP Holder broker-dealers and vendors 
that request to receive co-location services directly from the 
Exchange. See, e.g., Securities Exchange Act Release Nos. 65974 
(December 15, 2011), 76 FR 79249 (December 21, 2011) (SR-NYSEAmex-
2011-81) and 65975 (December 15, 2011), 76 FR 79233 (December 21, 
2011) (SR-NYSEAmex-2011-82). As specified in the Price List and the 
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 and NYSE Arca, 
Inc. See Securities Exchange Act Release No. 70176 (August 13, 
2013), 78 FR 50471 (August 19, 2013) (SR-NYSEMKT-2013-67).
    \6\ A full cabinet includes enough space for approximately four 
separate eight-rack units. The Exchange would submit a separate 
proposed rule change if it decided to change the manner in which 
space is allocated within a partial cabinet (e.g., six-rack units 
instead of eight-rack units).
    \7\ The Exchange would submit a separate proposed rule change if 
it decided to change the manner in which power is allocated to 
partial cabinets (e.g., more than two kWs of power allocated per 
eight-rack unit).
    \8\ The second kW would therefore cost $1,200. Power allocated 
to a User of a partial cabinet would be considered separate from 
power allocated to the same User if it also has dedicated cabinets 
in the data center.
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    The Exchange is proposing this partial cabinet alternative in order 
to assist Users that do not need a dedicated cabinet in the data 
center, such as those Users with minimal power or cabinet space 
demands, including those Users for which the costs attendant with a 
dedicated cabinet are too burdensome. However, Users that do require a 
dedicated cabinet could continue to request them.\9\ This proposed 
alternative would not impact current pricing for dedicated cabinets. 
The Exchange would amend the existing

[[Page 77751]]

table in the Price List and the Fee Schedule to reflect the pricing 
options.
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    \9\ For purposes of comparison, if a User ordered a single 
eight-rack unit in a partial cabinet with two kWs of power 
allocation, such User would be charged $2,500 in initial cabinet 
fees (compared to $5,000 for a dedicated cabinet) and $2,700 in 
recurring monthly fees (compared to $4,800 for a dedicated cabinet 
with the minimum power allocation of four kWs) for total charges of 
$34,900 within the first year (compared to $62,600 for a dedicated 
cabinet). A partial cabinet would therefore be a more economical 
option. If a User ordered two separate eight-rack units in a partial 
cabinet with two kWs of power allocation each (four kWs total), such 
User would be charged $5,000 in initial cabinet fees (identical to 
the $5,000 for a dedicated cabinet) and $5,400 in recurring monthly 
fees (compared to $4,800 for a dedicated cabinet with the minimum 
power allocation of four kWs) for total charges of $69,800 within 
the first year (compared to $62,600 for a dedicated cabinet). A 
dedicated cabinet would therefore be a more economical option. Based 
on the proposed pricing, the Exchange believes that the partial 
cabinet option would be selected by Users with power demands of 
three kWs or less. If a User's power demands are four kWs or greater 
it would likely choose the dedicated cabinet option. Accordingly, if 
a User ordered two separate eight-rack units in a partial cabinet 
with two kWs of power allocation for one of the units and one kW of 
power allocation for the other unit (three kWs total), such User 
would be charged $5,000 in initial cabinet fees (identical to the 
$5,000 for a dedicated cabinet) and $4,200 in recurring monthly fees 
(compared to $4,800 for a dedicated cabinet with the minimum power 
allocation of four kWs) for total charges of $55,400 within the 
first year (compared to $62,600 for a dedicated cabinet). A fourth 
incremental kW would add an additional $14,400 in cost (i.e., $1,200 
x 12), at which point a dedicated cabinet would be a more economical 
option.
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    Users that have several cabinets within the data center that wish 
to enhance privacy around their cabinets are able to purchase cages. 
Because more than one User could be using a partial cabinet, partial 
cabinets could not be located in a User's cage.
Initial Install Services Fee
    In conjunction with the proposed offering of partial cabinets, the 
Exchange also proposes to charge a lower Initial Install Services fee 
for a partial cabinet. The proposed fee would be lower because the 
services required of the Exchange for the installation of an eight-rack 
unit in a partial cabinet would be less than the services required for 
the installation of a dedicated cabinet. The current Initial Install 
Services fee is $800 per dedicated cabinet, which includes initial 
racking of equipment in the dedicated cabinet and provision of up to 10 
cables and four hours of labor. The Exchange proposes to charge a $400 
Initial Install Services fee for an eight-rack unit in a partial 
cabinet, which would include initial racking of equipment and provision 
of up to five cables and two hours of labor.
Cabinet Upgrades
    The Exchange makes dedicated cabinets available with standard power 
allocation of either four or eight kWs.\10\ However, Users that require 
additional power allocation may prefer to maintain their hardware 
within a particular dedicated cabinet rather than add an additional 
dedicated cabinet. Specifically, Users may develop their hardware 
infrastructure within a particular dedicated cabinet in such a way 
that, if expansion of such hardware is needed, it can be accomplished 
within the space constraints of that particular dedicated cabinet. If 
this type of User requires additional power allocation, it would likely 
want to so modify its existing cabinet rather than taking an additional 
dedicated cabinet due to the expense of re-developing its 
infrastructure within such additional dedicated cabinet. A $5,000 
initial dedicated cabinet fee would also apply if the User received an 
additional dedicated cabinet.
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    \10\ A User is generally able to determine an approximate amount 
of power that it will typically consume in its dedicated cabinet. A 
User would request either a four or eight kW dedicated cabinet based 
on its anticipated peak power consumption. A User's typical power 
consumption would be expected to be less than this anticipated peak 
power consumption, but could also rise above this anticipated peak 
power consumption during certain times of the day or certain periods 
of the month when equipment in the cabinet consumes additional 
power.
    The Exchange allocates power in circuits with ``baseline'' 
capacity of either four or eight kWs. A circuit could trip when 
power consumption exceeds capacity. To avoid this, the Exchange 
allocates ``buffer'' capacity in addition to the baseline capacity. 
When combined, this ``total'' allocation is approximately 80% of the 
amount of power consumption that would trip a circuit. The ``total'' 
power capacity allocated to a four kW dedicated cabinet is slightly 
more than five kWs. The ``total'' power capacity allocated to an 
eight kW dedicated cabinet is between 10 and 11 kWs. The Exchange 
charges Users for the full baseline amount of power allocated to 
dedicated cabinets (i.e., either four or eight kWs) regardless of 
whether such allocated power is consumed and, if any of the buffer 
is used, for that power consumption as well on a per kW basis. For 
example, if a User consumes its four kWs of baseline allocation and 
a fraction of an additional kW, the Exchange would charge the User 
for five kWs total.
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    The Exchange proposes to offer a new ``Cabinet Upgrade'' 
alternative and related fee in order to accommodate requests for 
additional power allocation beyond the typical amount that the Exchange 
allocates per dedicated cabinet, at which point the Exchange must 
upgrade the cabinet's power capacity. These Cabinet Upgrades typically 
entail overhauling wiring, circuitry and hardware for the dedicated 
cabinet so that it can handle the increased power. Cabinet Upgrades 
require additional Exchange resources beyond those covered under the 
initial dedicated cabinet fee or the Initial Install Services fee, 
including with respect to labor and equipment.
    The Exchange proposes to charge a one-time Cabinet Upgrade fee of 
$9,200 when a User requests additional power allocation for its 
dedicated cabinet such that the Exchange must upgrade the dedicated 
cabinet's capacity. A Cabinet Upgrade would be required when power 
allocation demands exceed 11 kWs.\11\ However, in order to incentivize 
Users to upgrade their dedicated cabinets, the Exchange proposes that 
the Cabinet Upgrade fee would be $4,600 for a User that submits a 
written order for a Cabinet Upgrade by January 31, 2014, provided that 
the Cabinet Upgrade becomes fully operational by March 31, 2014.
---------------------------------------------------------------------------

    \11\ A dedicated cabinet could be upgraded to accommodate a 
total allocation of up to approximately 20 kWs of power, after which 
a User would require an additional dedicated cabinet.
---------------------------------------------------------------------------

General
    As is the case with all Exchange co-location arrangements, (i) 
neither a User nor any of the User's customers would be permitted to 
submit orders directly to the Exchange unless such User or customer is 
a member organization, an ATP Holder, a Sponsored Participant or an 
agent thereof (e.g., a service bureau providing order entry services); 
(ii) use of the co-location services proposed herein would be 
completely voluntary and available to all Users on a non-discriminatory 
basis; \12\ and (iii) a User would only incur one charge for the 
particular co-location service described herein, regardless of whether 
the User connects only to the Exchange or to the Exchange and one or 
both of its affiliates.\13\
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    \12\ As is currently the case, Users that receive co-location 
services from the Exchange will not receive any means of access to 
the Exchange's trading and execution systems that is separate from, 
or superior to, that of other Users. In this regard, all orders sent 
to the Exchange enter the Exchange's trading and execution systems 
through the same order gateway, regardless of whether the sender is 
co-located in the data center or not. In addition, co-located Users 
do not receive any market data or data service product that is not 
available to all Users, although Users that receive co-location 
services normally would expect reduced latencies in sending orders 
to, and receiving market data from, the Exchange.
    \13\ See SR-NYSEMKT-2013-67, supra note 5 at 50471. The 
Exchange's affiliates have also submitted the same proposed rule 
change to provide for partial cabinets, Cabinet Upgrades and related 
fees. See SR-NYSE-2013-81 and SR-NYSEArca-2013-143.
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    The proposed change is not otherwise intended to address any other 
issues relating to co-location 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,\14\ in general, and furthers the 
objectives of Sections 6(b)(5) of the Act,\15\ 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 regulating, 
clearing, settling, processing information with respect to, and 
facilitating transactions in securities, to remove impediments to, and 
perfect the mechanisms 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.
---------------------------------------------------------------------------

    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the proposal is not designed to permit 
unfair discrimination between customers, issuers, brokers, or dealers. 
First, the proposed partial cabinets would make an alternative 
available to Users that do not need a dedicated cabinet in the data 
center, such as those Users with minimal power or cabinet

[[Page 77752]]

space demands, including those Users for which the costs attendant with 
a dedicated cabinet are too burdensome. However, Users that do require 
a dedicated cabinet could continue to request them. Second, the 
proposed Cabinet Upgrades would make an alternative available to Users 
that have already invested in hardware infrastructure within a 
particular dedicated cabinet and that require additional power 
allocation, but do not want an additional dedicated cabinet due to the 
expense of re-developing infrastructure within such additional 
dedicated cabinet. The Exchange believes that the proposal would remove 
impediments to, and perfect the mechanisms of, a free and open market 
and a national market system and, in general, protect investors and the 
public interest because it would provide Users with additional choices 
with respect to the optimal size of their cabinets and the number of 
cabinets they utilize, which could therefore lead to cost savings that 
Users may choose to pass on to their customers.
    The Exchange also believes that the proposed rule change is 
consistent with Section 6(b)(4) of the Act,\16\ in particular, because 
it provides for the equitable allocation of reasonable dues, fees, and 
other charges among its members, issuers and other persons using its 
facilities and does not unfairly discriminate between customers, 
issuers, brokers or dealers. Overall, the Exchange believes that the 
proposed change is consistent with the Act because the Exchange offers 
the co-location services described herein (i.e., the proposed partial 
cabinets and Cabinet Upgrades) as a convenience to Users, but in doing 
so will incur certain costs, including costs related to the data center 
facility, hardware and equipment and costs related to personnel 
required for initial installation and ongoing monitoring, support and 
maintenance of such services. Additionally, the proposed fees relate to 
the level of services provided by the Exchange and, in turn, received 
by the User.
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    \16\ 15 U.S.C. 78f(b)(4).
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    The Exchange believes that the proposed pricing for partial 
cabinets is reasonable because a partial cabinet would be a more 
economical option for certain Users that require only limited power or 
limited cabinet space, as compared to pricing for a dedicated cabinet, 
whereas a dedicated cabinet would be a more economical option for 
certain Users that have higher power or space demands.\17\ The proposed 
pricing for partial cabinets and the Cabinet Upgrade fee is also 
reasonable because it would allow Users to select options that are 
better suited for their needs (e.g., a dedicated cabinet compared to a 
partial cabinet and a Cabinet Upgrade compared to an additional 
dedicated cabinet).
---------------------------------------------------------------------------

    \17\ See, e.g., supra note 9.
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    The proposed pricing for partial cabinets is also reasonable 
because it is comparable to pricing for ``shared cabinet space'' 
available to users of co-location facilities of The NASDAQ Stock Market 
LLC (``NASDAQ'').\18\ Specifically, NASDAQ charges $600 for 500 watts 
(``Ws'') of power allocation in shared cabinet space. If a NASDAQ co-
location user were to request up to two kWs of allocated power in 
shared cabinet space it would be charged $2,400 per month (one kW is 
equal to 1,000 Ws and two kWs is therefore equal to 2,000 Ws), which is 
comparable to the proposed $2,700 monthly recurring charge for the same 
power allocation in an eight-rack unit in a partial cabinet in the data 
center. However, the Exchange understands that each unit of NASDAQ 
shared cabinet space is smaller in space than the partial cabinets 
proposed by the Exchange (e.g., four-rack units on NASDAQ compared to 
eight-rack units in the Exchange's data center).\19\ The Exchange also 
believes that the proposed Initial Install Services fee for a partial 
cabinet is reasonable because it is 50% of the dedicated cabinet 
Initial Install Services fee and likewise provides for 50% of the 
resources (i.e., two hours of labor instead of four hours and five 
cables instead of 10 cables) associated with the dedicated cabinet 
Initial Install Services fee.
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    \18\ See NASDAQ Rule 7034.
    \19\ NASDAQ's initial fee for shared cabinet space is charged on 
an hourly basis and is therefore difficult to compare to the 
proposed initial fee for partial cabinets in the Exchange's data 
center, which is fixed.
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    The Exchange also believes that the Cabinet Upgrade fee is 
reasonable because it would function similar to the NASDAQ charges for 
comparable services. In particular, NASDAQ charges a premium initial 
installation fee of $7,000 for a ``Super High Density Cabinet'' 
(between 10 kWs and 17.3 kWs) compared to $3,500 for other types of 
cabinets with less power.\20\ The Exchange charges only one flat rate 
for its initial cabinet fees ($5,000), regardless of the amount of 
power allocation. NASDAQ also charges an additional $7,000 for a Super 
High Density Cabinet Kit in relation to the additional customized 
equipment required to adequately cool a Super High Density Cabinet.\21\ 
The Exchange understands that NASDAQ therefore charges at least $10,500 
in additional initial costs for a Super High Density Cabinet compared 
to other cabinets (compared to the proposed $9,200 Cabinet Upgrade 
fee). The Exchange also believes that the proposed Cabinet Upgrade fee 
is reasonable because it would permit the Exchange to recover its 
expenses related to Cabinet Upgrades.
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    \20\ See supra note 18.
    \21\ Id.
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    The proposed 50% reduced Cabinet Upgrade fee for a User that 
submits a written order for a Cabinet Upgrade by January 31, 2014, 
provided that the Cabinet Upgrade becomes fully operational by March 
31, 2014, is reasonable because it would provide an incentive for Users 
to upgrade the capacity of their dedicated cabinets.
    As with fees for existing co-location services, the fees proposed 
herein would be charged only to those Users that voluntarily select the 
related services, which would be available to all Users. The Exchange 
therefore believes that the proposed change is equitable and not 
unfairly discriminatory because it would result in fees being charged 
only to Users that voluntarily select to receive the corresponding 
services and because those services would be available to all Users. 
Furthermore, the Exchange believes that the services and fees proposed 
herein are not unfairly discriminatory and are equitably allocated 
because, in addition to the services being completely voluntary, they 
are available to all Users on an equal basis (i.e., the same products 
and services are available to all Users).
    For the reasons above, the proposed change would not unfairly 
discriminate between or among market participants that are otherwise 
capable of satisfying any applicable co-location fees, requirements, 
terms and conditions established from time to time by the Exchange.
    Finally, the Exchange believes that it is subject to significant 
competitive forces, as described below in the Exchange's statement 
regarding the burden on competition.
    For these reasons, the Exchange believes that the proposal is 
consistent with the Act.

B. Self-Regulatory Organization's Statement on Burden on Competition

    In accordance with Section 6(b)(8) of the Act,\22\ the Exchange 
believes that the proposed rule change would not impose any burden on 
competition that is not necessary or appropriate in furtherance

[[Page 77753]]

of the purposes of the Act because any market participants that are 
otherwise capable of satisfying any applicable co-location fees, 
requirements, terms and conditions established from time to time by the 
Exchange could have access to the co-location services provided in the 
data center. This is also true because, in addition to the services 
being completely voluntary, they are available to all Users on an equal 
basis (i.e., the same range of products and services are available to 
all Users).
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    \22\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    The Exchange believes that the proposed partial cabinet and Cabinet 
Upgrade alternatives would not impose any burden on competition that is 
not necessary or appropriate in furtherance of the purposes of the Act 
because they would enhance competition by making additional choices in 
services available to Users and thereby satisfy User demand for partial 
cabinets and for dedicated cabinets with increased power capacity. The 
proposed change would also enhance competition because it would help 
Users meet the growing needs of their business operations. Moreover, 
the Exchange believes that the proposed change would enhance 
competition between competing marketplaces by enabling the Exchange to 
provide services to Users that are similar to services available on 
other markets. In this regard, the Exchange notes that NASDAQ also 
makes a shared cabinet space option and a ``Super High Density 
Cabinet'' option available to users of its co-location facilities.\23\
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    \23\ See supra note 18.
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    Finally, the Exchange notes that it operates in a highly 
competitive market in which market participants can readily favor 
competing venues if, for example, they deem fee levels at a particular 
venue to be excessive or if they determine that another venue's 
products and services are more competitive than on the Exchange. In 
such an environment, the Exchange must continually review, and consider 
adjusting, the services it offers as well as any corresponding fees and 
credits to remain competitive with other exchanges. For the reasons 
described above, the Exchange believes that the proposed rule change 
reflects this competitive environment.

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 \24\ and Rule 19b-4(f)(6) thereunder.\25\ 
Because the foregoing proposed rule change does not: (1) Significantly 
affect the protection of investors or the public interest; (2) impose 
any significant burden on competition; and (3) by its terms does not 
become operative for 30 days after the date of this filing, 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 
\26\ and Rule 19b-4(f)(6) thereunder.\27\
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    \24\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \25\ 17 CFR 240.19b-4(f)(6).
    \26\ 15 U.S.C. 78s(b)(3)(A).
    \27\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii) 
requires a self-regulatory organization to provide the Commission 
with 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 met this requirement.
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    A proposed rule change filed under Rule 19b-4(f)(6) \28\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b4(f)(6)(iii),\29\ the Commission 
may designate a shorter time if such action is consistent with the 
protection of investors and the public interest. The Exchange has asked 
the Commission to waive the 30-day operative delay so that the proposal 
may become operative immediately upon filing. The Exchange requested 
waiver of the 30-day operative delay in order to immediately implement 
the proposed rule change so that Users may experience the benefits of 
such proposed change as soon as possible. The Exchange stated that the 
proposal would merely make smaller increments of a standard, dedicated 
cabinet available on a voluntary basis to Users that do not require a 
full, dedicated cabinet. Users that do require full, dedicated cabinets 
could continue to request them. The Exchange also stated that the 
proposal would provide greater flexibility to Users that prefer to 
increase power allocation in a particular dedicated cabinet rather than 
incurring the cost of maintaining an additional dedicated cabinet. The 
Exchange further represented that it operates in a highly competitive 
market in which several competing exchanges already offer similar co-
location services. For the above reasons, the Commission believes 
waiver of the operative delay is appropriate and hereby grants the 
Exchange's request and designates the proposal operative upon 
filing.\30\
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    \28\ 17 CFR 240.19b-4(f)(6).
    \29\ 17 CFR 240.19b-4(f)(6)(iii).
    \30\ For purposes only of waiving the 30-day operative delay, 
the Commission has also 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) \31\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \31\ 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

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please 
include File Number SR-NYSEMKT-2013-103 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEMKT-2013-103. 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 Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the

[[Page 77754]]

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 Web site viewing and printing in the Commission's Public 
Reference Room, 100 F Street NE., Washington, DC 20549, on official 
business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of 
the filing also will be available for inspection and copying at the 
principal office of the Exchange. All comments received will be posted 
without change; the Commission does not edit personal identifying 
information from submissions. You should submit only information that 
you wish to make available publicly. All submissions should refer to 
File Number SR-NYSEMKT-2013-103 and should be submitted on or before 
January 14, 2014.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\32\
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    \32\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-30594 Filed 12-23-13; 8:45 am]
BILLING CODE 8011-01-P