Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Establishing Procedures and Credits in Connection With the Re-Location of Equipment in the Exchange's Data Center, 66944-66947 [2015-27655]
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66944
Federal Register / Vol. 80, No. 210 / Friday, October 30, 2015 / Notices
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,13 the Exchange believes that the
proposed rule change would not impose
any burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Act. The
Exchange believes that the proposed
procedures for identifying the Users that
would be moved and the proposed fee
waivers are pro-competitive because
they facilitate the Migration, which
would in turn facilitate use of the
Exchange’s Data Center, and provide
access to the Data Center to current and
additional market participants.
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.
tkelley on DSK3SPTVN1PROD with NOTICES
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
The foregoing rule change is effective
upon filing pursuant to Section
19(b)(3)(A) 14 of the Act and
subparagraph (f)(2) of Rule 19b–4 15
thereunder, because it establishes a due,
13 15
U.S.C. 78f(b)(8).
14 15 U.S.C. 78s(b)(3)(A).
15 17 CFR 240.19b–4(f)(2).
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17:37 Oct 29, 2015
fee, or other charge imposed by the
Exchange.
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) 16 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:
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.17
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015–27654 Filed 10–29–15; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–76268; File No. SR–
NYSEMKT–2015–70]
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
NYSE–2015–42 on the subject line.
Self-Regulatory Organizations; NYSE
MKT LLC; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change Establishing Procedures
and Credits in Connection With the ReLocation of Equipment in the
Exchange’s Data Center
Paper Comments
• Send paper comments in triplicate
to Brent J. Fields, Secretary, Securities
and Exchange Commission, 100 F Street
NE., Washington, DC 20549–1090.
All submissions should refer to File
Number SR–NYSE–2015–42. 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 (https://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
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 inspection and copying in
the Commission’s Public Reference
Section, 100 F Street NE., Washington,
DC 20549–1090. Copies of the filing will
also be available for Web site viewing
and printing at the NYSE’s principal
October 26, 2015.
16 15
Jkt 238001
office and on its Internet Web site at
www.nyse.com. 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–NYSE–
2015–42 and should be submitted on or
before November 20, 2015.
PO 00000
U.S.C. 78s(b)(2)(B).
Frm 00079
Fmt 4703
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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 October
22, 2015, 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, II, and III below, which Items
have been prepared by the selfregulatory 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 establish
procedures and credits in connection
with the re-location of equipment in the
Exchange’s Data Center. 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.
17 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 15 U.S.C. 78a.
3 17 CFR 240.19b–4.
1 15
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Federal Register / Vol. 80, No. 210 / Friday, October 30, 2015 / 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,
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
tkelley on DSK3SPTVN1PROD with NOTICES
1. Purpose
The Exchange operates a data center
in Mahwah, New Jersey, from which it
provides co-location services to Users.4
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.5 The Exchange
proposes to establish procedures and
waive certain fees in connection with
the Exchange’s re-location of Users’
equipment in the Exchange’s Data
Center, operative beginning November
1, 2015.6
The Data Center opened in 2010, and
at that time, the Exchange represented
that it offers co-location space based on
availability and that it had sufficient
space in the Data Center to
accommodate demand on an equitable
basis for the foreseeable future.7 The
Exchange continues to believe that there
is sufficient space in the Data Center to
accommodate demand. However, much
of the space available now is available
4 The Exchange initially filed rule changes
relating to its co-location services with the
Securities and Exchange Commission
(‘‘Commission’’) in 2010. See Securities Exchange
Act Release No. 62961 (September 21, 2010), 75 FR
59299 (September 27, 2010) (SR–NYSEAmex–2010–
80) (‘‘2010 Release’’).
5 See id. at 59299.
6 As specified in the NYSE MKT Equities Price
List and the NYSE Amex Options Fee Schedule, a
User that incurs co-location fees for a particular colocation 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). The Exchange’s affiliates
have also submitted substantially the same
proposed rule change to propose the changes
described herein. See SR–NYSE–2015–42 and SR–
NYSEArca–2015–85.
7 See supra note 4 at 59299.
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17:37 Oct 29, 2015
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in smaller segments, resulting from an
increasing number of Users, multiple
moves within the Data Center, and
changes to Users’ space requirements—
both increases and decreases—since
2010. At this time, the Exchange has
determined that, in order to continue to
be able to meet its obligation to
accommodate demand, and in particular
to make available more contiguous,
larger spaces for new and existing Users,
the Exchange must exercise its right to
move some Users’ equipment within the
Data Center (the ‘‘Migration’’).
The Exchange proposes to put the
following procedures in place to manage
the process for the Migration.
First, the Exchange would identify
Users that would be required to move in
the Migration based on (a) the current
location of the User and its current
equipment and power requirements and
(b) the availability of another location in
the Data Center that would
accommodate the equipment and power
requirements for which such User
currently subscribes. No User would be
required to move more than once within
any 12-month period.
Second, the Exchange would notify a
User in writing (the ‘‘Notice’’) that the
User’s equipment and network
connections in the Data Center are to be
moved as part of the Migration. The
Notice would identify the 90-day period
during which the User must move its
equipment, which period would
commence at least 60 days from the date
of the Notice. The exact date or dates for
the move for each User would be agreed
upon between the User and the
Exchange. If a move date or dates cannot
be agreed on, the Exchange would
schedule the move for a date or dates no
later than 180 days after the date of the
Notice.
Third, each User’s move would be
facilitated by the Exchange in
cooperation with the User, including the
un-racking and re-racking of all of the
User’s equipment, and the reinstallation of the User’s networking
connections, and the Exchange would
make reasonable efforts to ensure that
the moves take place outside of the
Exchange’s hours for business.8
Fourth, in connection with facilitating
each User’s move, the Exchange
proposes to waive certain fees.
Specifically, the Exchange proposes to
waive the monthly recurring fees
incurred in connection with the User’s
new space for the month during which
the User’s move commences. This
waiver of the monthly recurring fees
would mean that the User would not
incur these fees for the period of
overlapping use of the equipment and
services in the old and the new
locations, as long as the move is
completed within one month.
In addition, the Exchange proposes to
waive all service-related charges that the
User would incur if such a move were
to take place at a User’s request with
respect to the User’s existing services
and equipment. The service-related
charges to be waived would be: (a) The
Change Fee, Initial Install Services and
Hot Hands Services; (b) the External
Cabinet Cable Tray fee and the Custom
External Cabinet Cable Tray fee, if the
User has such equipment installed in its
current location; (c) Shipping and
Receiving fees relating to duplicate
equipment for the User’s new space; and
(d) the Badge Request Fee and Visitor
Security Escort fee with respect to User
representative visits during the User’s
Migration Period (together, the ‘‘ServiceRelated Fees’’).
Finally, in consideration for the
Migration, the Exchange proposes to
waive, for the month following the
completion of a User’s move, the
monthly recurring charges for that User,
based on the rate of the monthly
recurring fees that the User is paying as
of the date of the Notice.
The Exchange proposes to modify the
NYSE MKT Equities Price List and the
NYSE Amex Options Fee Schedule to
reflect the fee waivers in connection
with the Migration.
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. The representations that the
Exchange made in the 2010 Release to
the effect that any difference among the
positions of a User’s equipment within
the Data Center does not create any
material difference to Users in terms of
access to the Exchange continue to
apply.9
2. Statutory Basis
The Exchange believes that the
proposed rule change is consistent with
Section 6(b) of the Act,10 in general, and
furthers the objectives of Sections
6(b)(5) of the Act,11 in particular,
because it provides for the equitable
allocation of reasonable dues, fees and
other charges among members and other
persons using any facility or system
which the Exchange operates or controls
and is designed to prevent fraudulent
9 See
8 See
NYSE MKT Equities Rule 51 and NYSE
Amex Options Rule 900.2NY(15).
PO 00000
Frm 00080
Fmt 4703
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66945
supra note 4 at 59299.
U.S.C. 78f(b).
11 15 U.S.C. 78f(b)(5).
10 15
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tkelley on DSK3SPTVN1PROD with NOTICES
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Federal Register / Vol. 80, No. 210 / Friday, October 30, 2015 / Notices
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.
Additionally, the proposed changes
would be applied uniformly by the
Exchange to comparable Users and
would not unfairly discriminate
between similarly situated Users of colocation services.
The Exchange believes that the
proposal to establish procedures and
waive certain fees in connection with
the movement of equipment at the
Exchange’s Data Center 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 allow the
Exchange to have sufficient space in the
Data Center to accommodate demand on
an equitable basis for the foreseeable
future. The Exchange believes that the
waiver of overlapping monthly
recurring charges, the waiver of the
Service-Related Fees, and the waiver of
one month of monthly recurring charges
is reasonable because Users would be
moving at the Exchange’s request and
the waivers would help to alleviate the
burden on the Users that are required to
move.
The Exchange also believes that the
proposed rule change is consistent with
Section 6(b)(4) of the Act,12 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. Pursuant to
the proposed procedures for selecting
which Users would be required to move
within the Data Center, a User would be
required to move only if the Exchange
would be able to accommodate such
User’s current space and power
requirements at the new location, so as
to minimize the disruption to the User.
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,13 the Exchange believes that the
proposed rule change would not impose
any burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Act. The
Exchange believes that the proposed
procedures for identifying the Users that
would be moved and the proposed fee
waivers are pro-competitive because
they facilitate the Migration, which
would in turn facilitate use of the
Exchange’s Data Center, and provide
access to the Data Center to current and
additional market participants.
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 foregoing rule change is effective
upon filing pursuant to Section
19(b)(3)(A) 14 of the Act and
subparagraph (f)(2) of Rule 19b–4 15
thereunder, because it establishes a due,
13 15
U.S.C. 78f(b)(8).
U.S.C. 78s(b)(3)(A).
15 17 CFR 240.19b–4(f)(2).
fee, or other charge imposed by the
Exchange.
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) 16 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 (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
NYSEMKT–2015–70 on the subject line.
Paper Comments
• Send paper comments in triplicate
to Brent J. Fields, Secretary, Securities
and Exchange Commission, 100 F Street
NE., Washington, DC 20549–1090.
All submissions should refer to File
Number SR–NYSEMKT–2015–70. 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 (https://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
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 Section, 100 F Street NE.,
Washington, DC 20549–1090. Copies of
the filing will also be available for
inspection and copying at the NYSE’s
14 15
12 15
U.S.C. 78f(b)(4).
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U.S.C. 78s(b)(2)(B).
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Federal Register / Vol. 80, No. 210 / Friday, October 30, 2015 / Notices
principal office and on its Internet Web
site at www.nyse.com. 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–2015–70 and should be
submitted on or before November 20,
2015.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.17
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015–27655 Filed 10–29–15; 8:45 am]
BILLING CODE 8011–01–P
[Release No. 34–76259; File No. SR–
NASDAQ–2015–117]
Self-Regulatory Organizations; The
NASDAQ Stock Market LLC; Notice of
Filing and Immediate Effectiveness of
Proposed Rule Change to Options
Testing Facility
October 26, 2015.
tkelley on DSK3SPTVN1PROD with NOTICES
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’),1 and Rule 19b–4 thereunder,2
notice is hereby given that, on October
16, 2015, The NASDAQ Stock Market
LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) filed
with the Securities and Exchange
Commission (‘‘Commission’’) the
proposed rule change as described in
Items I, II, and III below, which Items
have been prepared by the Exchange.
The Commission is publishing this
notice to solicit comments on the
proposed rule change from interested
persons.
I. Self-Regulatory Organization’s
Statement of the Terms of the Substance
of the Proposed Rule Change
The Exchange proposes to amend its
Options Pricing at Chapter XV to adopt
a new Section 13, entitled ‘‘Testing
Facilities’’ which describes fees in
connection with the use of the Testing
Facility (‘‘NTF’’) test environment
located in Carteret, New Jersey.
While the changes proposed herein
are effective upon filing, the Exchange
has designated that the amendments be
operative on October 26, 2015.
The text of the proposed rule change
is available on the Exchange’s Web site
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
17:37 Oct 29, 2015
1. Purpose
Nasdaq proposes to amend its Options
Pricing at Chapter XV to adopt a new
Section 13, entitled ‘‘Testing Facilities’’
to establish fees to subscribe for testing.
Currently, Options Participants may test
in a virtual trading environment for
purposes of testing in Ashburn, Virginia
(‘‘Ashburn’’), at no cost. The NTF
provides subscribers a virtual System
environment for testing upcoming
Nasdaq releases and product
enhancements, as well as testing firm
software prior to implementation. The
test environment closely approximates
the production environment to enable
subscribers to test their automated
systems that integrate with the
Exchange.
The Exchange is moving the options
test environment from the Ashburn
location to Carteret, NJ (‘‘Carteret’’),
which is also the location of Nasdaq’s
primary trading System. While Options
Participants will be able to continue to
utilize the Ashburn facility at no cost
until that facility is no longer in use,
Options Participants will be able to
subscribe to the Carteret test facility for
future testing.3
The relatively large distance between
the Ashburn Testing Facility and the
majority of Nasdaq firms results in
expensive connectivity costs for
customers that connect via
telecommunication providers. As a
consequence, a large majority of
member firms do not connect to
Ashburn for NTF connectivity. In an
3 The Exchange anticipates that it will sunset the
Ashburn trading testing functionality on January 29,
2016.
1 15
VerDate Sep<11>2014
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
SECURITIES AND EXCHANGE
COMMISSION
17 17
at https://nasdaq.cchwallstreet.com, at
the principal office of the Exchange, and
at the Commission’s Public Reference
Room.
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66947
effort to improve the utility of the NTF,
Nasdaq is developing a test environment
located in Carteret that will provide the
same functionality as the testing
functionality of Ashburn, yet more
closely approximate the live trading
environment due to its proximity to the
System and upgraded hardware. In
particular, the Carteret test environment
will take advantage of technology
upgrades Nasdaq is making to its
trading-related systems. Unlike the
Ashburn test environment, the Carteret
test environment will provide dedicated
connectivity to the facility via a crossconnection to either a member firm’s
direct connection router in Carteret or
its co-location cabinet.
Nasdaq notes that, because the
Carteret facility also houses the System,
subscribers to the Carteret test
environment will no longer need to pay
for third party connectivity to Ashburn,4
provided the sole purpose for
connecting to Ashburn is for testing and
not also for co-location or disaster
recovery. Such member firms may use
an existing connection to Carteret to
access the NTF through the use of a
dedicated switch port and cross connect
within the facility. Similar to the
equities test facility,5 the Exchange will
assess a fee for the connection to this
virtual trading environment for testing.
Specifically, Nasdaq proposes a $1,000
per hand-off, per month fee for
connection to the Testing Facility. The
hand-off fee includes either a 1Gb or
10Gb switch port and a cross connect to
the Testing Facility. Subscribers shall
also pay a one-time installation fee of
$1,000 per hand-off.
The connectivity provided under this
rule also provides connectivity to the
other test environments of NASDAQ
OMX PHLX LLC and NASDAQ OMX
BX, Inc. Additionally, the connectivity
may be utilized for either equities or
options testing. If for example a Phlx
[sic] member has already paid the
$1,000 per hand-off, per month for
connection to the Testing Facility in
Carteret, there would be no need to pay
this fee for options testing.
Notwithstanding the foregoing,
Nasdaq will also continue to offer
certain limited testing capabilities free
of charge at Carteret. Options
Participants that connect to Cartert’s
[sic] NTF through a virtual private
network (‘‘VPN’’) through the internet
for site-to-site limited order routing
4 Today, member firms pay fees to third party
connectivity providers to provide connection from
the member firm to Ashburn.
5 See Nasdaq Rule 7030, concerning equities
pricing.
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Agencies
[Federal Register Volume 80, Number 210 (Friday, October 30, 2015)]
[Notices]
[Pages 66944-66947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-27655]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-76268; File No. SR-NYSEMKT-2015-70]
Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and
Immediate Effectiveness of Proposed Rule Change Establishing Procedures
and Credits in Connection With the Re-Location of Equipment in the
Exchange's Data Center
October 26, 2015.
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 October 22, 2015, 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, II,
and III 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 establish procedures and credits in
connection with the re-location of equipment in the Exchange's Data
Center. 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.
[[Page 66945]]
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 operates a data center in Mahwah, New Jersey, from
which it provides co-location services to Users.\4\ 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.\5\ The Exchange proposes to
establish procedures and waive certain fees in connection with the
Exchange's re-location of Users' equipment in the Exchange's Data
Center, operative beginning November 1, 2015.\6\
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\4\ The Exchange initially filed rule changes relating to its
co-location services with the Securities and Exchange Commission
(``Commission'') in 2010. See Securities Exchange Act Release No.
62961 (September 21, 2010), 75 FR 59299 (September 27, 2010) (SR-
NYSEAmex-2010-80) (``2010 Release'').
\5\ See id. at 59299.
\6\ As specified in the NYSE MKT Equities Price List and the
NYSE Amex Options 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). The
Exchange's affiliates have also submitted substantially the same
proposed rule change to propose the changes described herein. See
SR-NYSE-2015-42 and SR-NYSEArca-2015-85.
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The Data Center opened in 2010, and at that time, the Exchange
represented that it offers co-location space based on availability and
that it had sufficient space in the Data Center to accommodate demand
on an equitable basis for the foreseeable future.\7\ The Exchange
continues to believe that there is sufficient space in the Data Center
to accommodate demand. However, much of the space available now is
available in smaller segments, resulting from an increasing number of
Users, multiple moves within the Data Center, and changes to Users'
space requirements--both increases and decreases--since 2010. At this
time, the Exchange has determined that, in order to continue to be able
to meet its obligation to accommodate demand, and in particular to make
available more contiguous, larger spaces for new and existing Users,
the Exchange must exercise its right to move some Users' equipment
within the Data Center (the ``Migration'').
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\7\ See supra note 4 at 59299.
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The Exchange proposes to put the following procedures in place to
manage the process for the Migration.
First, the Exchange would identify Users that would be required to
move in the Migration based on (a) the current location of the User and
its current equipment and power requirements and (b) the availability
of another location in the Data Center that would accommodate the
equipment and power requirements for which such User currently
subscribes. No User would be required to move more than once within any
12-month period.
Second, the Exchange would notify a User in writing (the
``Notice'') that the User's equipment and network connections in the
Data Center are to be moved as part of the Migration. The Notice would
identify the 90-day period during which the User must move its
equipment, which period would commence at least 60 days from the date
of the Notice. The exact date or dates for the move for each User would
be agreed upon between the User and the Exchange. If a move date or
dates cannot be agreed on, the Exchange would schedule the move for a
date or dates no later than 180 days after the date of the Notice.
Third, each User's move would be facilitated by the Exchange in
cooperation with the User, including the un-racking and re-racking of
all of the User's equipment, and the re-installation of the User's
networking connections, and the Exchange would make reasonable efforts
to ensure that the moves take place outside of the Exchange's hours for
business.\8\
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\8\ See NYSE MKT Equities Rule 51 and NYSE Amex Options Rule
900.2NY(15).
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Fourth, in connection with facilitating each User's move, the
Exchange proposes to waive certain fees. Specifically, the Exchange
proposes to waive the monthly recurring fees incurred in connection
with the User's new space for the month during which the User's move
commences. This waiver of the monthly recurring fees would mean that
the User would not incur these fees for the period of overlapping use
of the equipment and services in the old and the new locations, as long
as the move is completed within one month.
In addition, the Exchange proposes to waive all service-related
charges that the User would incur if such a move were to take place at
a User's request with respect to the User's existing services and
equipment. The service-related charges to be waived would be: (a) The
Change Fee, Initial Install Services and Hot Hands Services; (b) the
External Cabinet Cable Tray fee and the Custom External Cabinet Cable
Tray fee, if the User has such equipment installed in its current
location; (c) Shipping and Receiving fees relating to duplicate
equipment for the User's new space; and (d) the Badge Request Fee and
Visitor Security Escort fee with respect to User representative visits
during the User's Migration Period (together, the ``Service-Related
Fees'').
Finally, in consideration for the Migration, the Exchange proposes
to waive, for the month following the completion of a User's move, the
monthly recurring charges for that User, based on the rate of the
monthly recurring fees that the User is paying as of the date of the
Notice.
The Exchange proposes to modify the NYSE MKT Equities Price List
and the NYSE Amex Options Fee Schedule to reflect the fee waivers in
connection with the Migration.
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. The representations that the
Exchange made in the 2010 Release to the effect that any difference
among the positions of a User's equipment within the Data Center does
not create any material difference to Users in terms of access to the
Exchange continue to apply.\9\
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\9\ See supra note 4 at 59299.
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2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\10\ in general, and furthers the
objectives of Sections 6(b)(5) of the Act,\11\ in particular, because
it provides for the equitable allocation of reasonable dues, fees and
other charges among members and other persons using any facility or
system which the Exchange operates or controls and is designed to
prevent fraudulent
[[Page 66946]]
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.
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\10\ 15 U.S.C. 78f(b).
\11\ 15 U.S.C. 78f(b)(5).
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Additionally, the proposed changes would be applied uniformly by
the Exchange to comparable Users and would not unfairly discriminate
between similarly situated Users of co-location services.
The Exchange believes that the proposal to establish procedures and
waive certain fees in connection with the movement of equipment at the
Exchange's Data Center 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
allow the Exchange to have sufficient space in the Data Center to
accommodate demand on an equitable basis for the foreseeable future.
The Exchange believes that the waiver of overlapping monthly recurring
charges, the waiver of the Service-Related Fees, and the waiver of one
month of monthly recurring charges is reasonable because Users would be
moving at the Exchange's request and the waivers would help to
alleviate the burden on the Users that are required to move.
The Exchange also believes that the proposed rule change is
consistent with Section 6(b)(4) of the Act,\12\ 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. Pursuant to the proposed procedures for
selecting which Users would be required to move within the Data Center,
a User would be required to move only if the Exchange would be able to
accommodate such User's current space and power requirements at the new
location, so as to minimize the disruption to the User.
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\12\ 15 U.S.C. 78f(b)(4).
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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,\13\ the Exchange
believes that the proposed rule change would not impose any burden on
competition that is not necessary or appropriate in furtherance of the
purposes of the Act. The Exchange believes that the proposed procedures
for identifying the Users that would be moved and the proposed fee
waivers are pro-competitive because they facilitate the Migration,
which would in turn facilitate use of the Exchange's Data Center, and
provide access to the Data Center to current and additional market
participants.
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\13\ 15 U.S.C. 78f(b)(8).
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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 foregoing rule change is effective upon filing pursuant to
Section 19(b)(3)(A) \14\ of the Act and subparagraph (f)(2) of Rule
19b-4 \15\ thereunder, because it establishes a due, fee, or other
charge imposed by the Exchange.
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\14\ 15 U.S.C. 78s(b)(3)(A).
\15\ 17 CFR 240.19b-4(f)(2).
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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) \16\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
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\16\ 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 (https://www.sec.gov/rules/sro.shtml); or
Send an email to rule-comments@sec.gov. Please include
File Number SR-NYSEMKT-2015-70 on the subject line.
Paper Comments
Send paper comments in triplicate to Brent J. Fields,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEMKT-2015-70. 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 (https://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 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 Section, 100 F Street
NE., Washington, DC 20549-1090. Copies of the filing will also be
available for inspection and copying at the NYSE's
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principal office and on its Internet Web site at www.nyse.com. 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-2015-70 and should
be submitted on or before November 20, 2015.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\17\
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\17\ 17 CFR 200.30-3(a)(12).
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Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015-27655 Filed 10-29-15; 8:45 am]
BILLING CODE 8011-01-P