Self-Regulatory Organizations; NYSE MKT LLC; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Change, as Modified by Amendment No. 1, Amending the Co-location Services Offered by the Exchange To Add Certain Access and Connectivity Fees, 86050-86055 [2016-28637]
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Federal Register / Vol. 81, No. 229 / Tuesday, November 29, 2016 / Notices
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–ICEEU–2016–013 and
should be submitted on or before
December 20, 2016.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.10
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016–28634 Filed 11–28–16; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–79378; File No. SR–
NYSEMKT–2016–63]
Self-Regulatory Organizations; NYSE
MKT LLC; Order Instituting
Proceedings To Determine Whether To
Approve or Disapprove a Proposed
Change, as Modified by Amendment
No. 1, Amending the Co-location
Services Offered by the Exchange To
Add Certain Access and Connectivity
Fees
November 22, 2016.
asabaliauskas on DSK3SPTVN1PROD with NOTICES
I. Introduction
On August 16, 2016, NYSE MKT LLC
(the ‘‘Exchange’’ or ‘‘NYSE MKT’’) filed
with the Securities and Exchange
Commission (‘‘Commission’’), pursuant
to Section 19(b)(1) of the Securities
Exchange Act of 1934 (‘‘Act’’) 1 and Rule
19b–4 thereunder,2 a proposed rule
change (1) to provide additional
information regarding access to various
trading and execution services;
connectivity to market data feeds and
testing and certification feeds;
connectivity to Third Party Systems;
and connectivity to DTCC provided to
Users using data center local area
networks; and (2) to establish fees
relating to a User’s access to various
trading and execution services;
connectivity to market data feeds and
testing and certification feeds;
connectivity to DTCC; and other
services. The proposed rule change was
published for comment in the Federal
Register on August 26, 2016.3 The
Commission received no comments in
response to the proposed rule change.4
10 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
3 See Securities Exchange Act Release No. 34–
78629 (August 22, 2016), 81 FR 58992 (‘‘Notice’’).
4 The Commission notes that it did receive one
comment letter on a related filing, NYSE–2016–45,
1 15
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On October 4, 2016, the Commission
extended the time period within which
to approve the proposed rule change,
disapprove the proposed rule change, or
institute proceedings to determine
whether to approve or disapprove the
proposed rule change to November 24,
2016.5
On November 2, 2016, the Exchange
filed Amendment No. 1 to the proposed
rule change.6 The Commission is
publishing this order to solicit
comments on Amendment No. 1 from
interested persons and to institute
proceedings pursuant to Exchange Act
Section 19(b)(2)(B) to determine
whether to approve or disapprove the
proposed rule change, as modified by
Amendment No. 1.7 Institution of
proceedings does not indicate that the
Commission has reached any
conclusions with respect to the
proposed rule change, nor does it mean
that the Commission will ultimately
disapprove the proposed rule change.
Rather, as discussed below, the
Commission seeks additional input on
the proposed rule change, as modified
by Amendment No. 1, and on the issues
presented by the proposal.
II. Description of the Proposed Rule
Change, as Modified by Amendment
No. 1
The proposed rule change seeks to
amend the co-location services offered
by the Exchange to (1) provide
additional information regarding the
access to trading and execution services
and connectivity to data provided to
Users with local area networks available
in the data center; and (2) establish fees
relating to a User’s 8 access to trading
which is equally relevant to this filing. See letter
to Brent J. Fields, Secretary, Commission, from John
Ramsay, Chief Market Policy Officer, Investors
Exchange LLC (IEX), dated September 9, 2016 (‘‘IEX
Letter’’).
On September 23, 2016, the NYSE submitted a
response (‘‘Response Letter’’).
5 See Securities Exchange Act Release No. 34–
78968 (September 28, 2016), 81 FR 68493.
6 Amendment No. 1 is discussed further infra.
Amendment No. 1 is available on the Commission’s
Web site at https://www.sec.gov/comments/srnysemkt-2016-63/nysemkt201663-1.pdf.
7 15 U.S.C. 78s(b)(2)(B).
8 For purposes of the Exchange’s co-location
services, a ‘‘User’’ means any market participant
that requests to receive co-location services directly
from the Exchange. See Securities Exchange Act
Release No. 76008 (September 29, 2015), 80 FR
60190 (October 5, 2015) (SR–NYSE–2015–40). As
specified in the Fee Schedules, 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 NYSE MKT LLC (‘‘NYSE
MKT’’) and NYSE Arca, Inc. (‘‘NYSE Arca’’ and,
together with NYSE MKT, the ‘‘Affiliate SROs’’).
See Securities Exchange Act Release No. 70206
(August 15, 2013), 78 FR 51765 (August 21, 2013)
(SR–NYSE–2013–59).
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and execution services; connectivity to
data feeds and to testing and
certification feeds; connectivity to
clearing; and other services.9
Background and Access to Exchange
Systems
As discussed more fully in the Notice,
a User can purchase access to the
Liquidity Center Network (‘‘LCN’’) and/
or internet protocol (‘‘IP’’) network in
the data center through the purchase of
a 1, 10, or 40 Gb LCN circuit, a 10 Gb
LX Circuit, bundled network access,
Partial Cabinet Solution bundle, or 1, 10
or 40 Gb IP network access.10 The
purchase of any of the LCN or IP
network circuit options gives a User
access 11 to the Exchange’s trading and
execution systems, connectivity to the
Exchange’s certification and testing
feeds,12 and the ability to connect to any
NYSE Data Product.13 More specifically,
access to the Exchange’s trading and
execution system provides a User with
access to the Exchange’s ‘‘customer
gateways that provide for order entry,
order receipt (i.e. confirmation that an
order has been received), receipt of drop
copies and trade reporting (i.e. whether
a trade is executed or cancelled), as well
as for sending information to shared
data services for clearing and
settlement.’’ 14 The Exchange seeks to
add clarifying language in its proposed
rule to reflect the services included with
purchase of Exchange system access.15
Connectivity to Included Data Products
As discussed more fully below, the
Exchange offers connectivity to three
types of data products: Included Data
Products, Premium NYSE Data
Products, and Third Party Data Feeds.16
9 See
Notice, supra note 3, 81 FR at 58993.
id.
11 The purchase of access is subject to receiving
authorization from the NYSE, NYSE MKT or NYSE
Arca for the Included Data Products, as applicable.
See id. at 58993 n.10.
12 Certification feeds are used to certify that a
User conforms to any relevant technical
requirements for receipt of data or access to
Exchange systems. Testing feeds, which do not
carry live production data, provide Users with an
environment to conduct tests with the non-live
data, including testing for upcoming Exchange
releases and product enhancements or the User’s
own software development. See id. at 58993. These
feeds are only available over the IP network,
however a User without an IP network connection
may obtain an IP network circuit for purposes of
testing and certification for free for three months.
See id. at 58993 n.12.
13 See id. at 58993.
14 See id. The Exchange represents that
connectivity to the Exchange systems can be
obtained without the purchase of access to the LCN
or IP network. See id.
15 See id.
16 See id. at 58993–58994. Neither the NYSE Data
Products or Third Party Data Feeds provide access
or order entry to the Exchange’s execution system.
10 See
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As discussed more fully in the Notice,
the Included Data Products include
Consolidated Tape Association (‘‘CTA’’)
disseminated data feeds and NMS data
feeds.17 The CTA disseminates
consolidated real-time trade and quote
information in NYSE listed securities
(Network A) and NYSE MKT, NYSE
Arca and other regional exchanges’
listed securities (Network B) pursuant to
a national market system plan.18 The
NMS data feeds include Consolidated
Tape System and Consolidated Quote
System data streams, as well as Options
Price Reporting Authority feeds.19 To
obtain connectivity to the Included Data
Products, a User must enter into a
contract with the data provider and pay
any applicable fees.20 Once the
Exchange receives an authorization from
the data feed provider, the Exchange
will provide connectivity to the
Included Data Product(s) through a
User’s LCN or IP network port.21 The
Exchange does not charge any
additional fees for this connectivity
‘‘because such access and connectivity
is directly related to the purpose of colocation.’’ 22 The Exchange proposes to
add language to the NYSE MKT Equities
Price List and the NYSE Amex Options
Fee Schedule (collectively ‘‘Fee
Schedules’’) to specify that there are no
additional fees for connectivity to
Included Data Products.23
Connectivity to Premium NYSE Data
Products
asabaliauskas on DSK3SPTVN1PROD with NOTICES
As part of its data product offerings,
the Exchange now proposes to provide
connectivity to Premium NYSE Data
Products from the Exchange and its
Affiliate SROs to Users over either the
LCN and/or IP network ‘‘because such
access and connectivity is directly
related to the purpose of co-location.’’ 24
The proposed rule change seeks to
amend the Fee Schedules to specify the
connectivity fees for Premium NYSE
Data Products.25
See id. at 58994 n. 15. Connectivity to the NYSE
Data Products is available in three forms: A resilient
feed, ‘‘Feed A’’, or ‘‘Feed B.’’ A resilient feed
includes two copies of the same feed for
redundancy purposes and Feed A and Feed B are
identical feeds. A User that wants redundancy
would connect to both Feed A and Feed B or two
resilient feeds, using two different ports. See id. at
58993; see also id. at 58993 n. 13.
17 See Notice, supra note 3, 81 FR at 58994.
18 See id.
19 See id.
20 See id.
21 See id.
22 See id.; see also Amendment No. 1, supra note
6.
23 See Notice, supra note 3, 81 FR at 58994.
24 See id.; see also Amendment No. 1, supra note
6.
25 See Notice, supra note 3, 81 FR at 58995.
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As discussed more fully in the Notice,
the Premium NYSE Data Products are
‘‘equity market data products that are
variants of the equity Included Data
Products. Each Premium NYSE Data
Product integrates, or includes data
elements from, several Included Data
Products.’’ 26 These Integrated Feeds
include ‘‘depth of book order data (with
add, modify and delete orders), trades
(with corrections and cancel/errors),
opening and closing imbalance data,
security status updates (e.g., trade
corrections and trading halts) and stock
summary messages. The stock summary
messages display a market’s opening
price, high price, low price, closing
price, and cumulative volume for a
security. Only the Integrated Feeds offer
all these components in sequence in one
feed.’’ 27 Additionally, the NYSE BQT
data feed includes, among other things,
certain data elements from six of the
equity Included Data Products of the
Exchange and Affiliated SROs in one
data feed: NYSE Trades, NYSE BBO,
NYSE Arca Trades, NYSE Arca BBO,
NYSE MKT Trades, and NYSE MKT
BBO.28
As is the case with Included Data
Products, a User of Premium NYSE Data
Products must enter into a contract with
the data provider for each feed and the
provider would then authorize the
Exchange to provide connectivity of the
particular feed to that User’s LCN or IP
Network port.29 The Exchange proposes
to charge a User a monthly recurring fee
26 See id. at 58994. Examples include: (1) The
NYSE Integrated Feed that includes, among other
items, data from three of the equity Included Data
Products: NYSE OpenBook, NYSE Trades, and
NYSE Order Imbalances; and (2) the NYSE BQT
data feed that includes, among other items, specific
data elements from six of the equity Included Data
Products: NYSE Trades, NYSE BBO, NYSE Arca
Trades, NYSE Arca BBO, NYSE MKT Trades, and
NYSE MKT BBO. See id. Additionally, with respect
to the NYSE Amex and NYSE Arca options data,
neither NYSE Amex nor NYSE Arca offer Premium
Data Products because there are ‘‘no options data
products that integrate, or include data elements
from, other option data products in the same
manner that the NYSE, NYSE MKT and NYSE Arca
Integrated Feeds integrate, or include data elements
from, equity Included Data Products.’’ See id.
27 See Amendment No. 1, supra note 6.
28 See id. None of the Included Data Products
provide Users with data from the Exchange and
Affiliate SROs in one feed. See id. Also, according
to the Exchange, the Premium Data Products
contain more data overall in comparison to the
Included Data Products and potentially can be
subject to greater technical specifications in order
to receive the feed(s). See Notice, supra note 3, 81
FR at 58995. ‘‘For example, a User connecting to the
NYSE Arca Integrated Feed, NYSE Integrated Feed
or NYSE MKT Integrated Feed would need at least
a 1 Gb IP network connection in order to connect
to either Feed A or Feed B. To connect to a resilient
feed, the User would require an LCN or IP network
connection of at least 10 Gb.’’ See id. at 58993 n.
13.
29 See Notice, supra note 3, 81 FR at 58994.
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86051
per each Premium NYSE Data Product
feed for the connectivity provided by
the Exchange.30
Connectivity to Third Party Data Feeds
The Exchange’s proposal further seeks
to offer Third Party Data Feeds to Users
and to charge a connectivity fee per feed
as reflected on its Fee Schedules.31 In
the data center, the Exchange receives
Third Party Data Feeds from multiple
national securities exchanges and other
content service providers which it then
provides to requesting Users for a fee.32
With the exceptions of Global OTC and
NYSE Global Index, Users connect to
Third Party Data Feeds over the IP
network.33 In charging for this service,
the Exchange notes that its practice is
consistent with the monthly fee Nasdaq
charges its co-location customers for
connectivity to third party data.34
In order to connect to a Third Party
Data Feed, a User must enter into a
contract with the relevant third party
market or content service provider,
under which the third party market or
content service provider charges the
User for the data feed.35 The Exchange
receives these Third Party Data Feeds
over its fiber optic network and, after
the data provider and User enter into a
contract and the Exchange receives
authorization from the data provider,
the Exchange re-transmits the data to
the User over a User’s port.36 Users only
receive, and are only charged for, the
feed(s) which they have entered into
contracts for.37 Additionally, the
Exchange notes that Third Party Data
Feeds do not provide access or order
entry to its execution system or access
to the execution system of the third
party generating the feed.38 The
Exchange proposes to charge a monthly
recurring fee for connectivity to each
Third Party Data Feed, however for
SuperFeed and MSCI it proposes to
charge different fees which vary based
on the bandwidth requirements for the
connection.39 A User is free to receive
all or some of the feeds included in the
30 See
id. at 58995.
id. at 58996.
32 See id.
33 See id.
34 See id. The Exchange notes that Nasdaq charges
monthly fees of $1,500 and $4,000 for connectivity
to BATS Y and BATS, respectively, and of $2,500
for connectivity to EDGA or EDGX. See id.
35 See id.
36 See id.
37 See id.
38 See id. There is one exception to this for the
ICE feeds which include both market data and
trading and clearing services. In order to receive the
ICE feeds, a User must receive authorization from
ICE to receive both market data and trading and
clearing services. See id.
39 See id.
31 See
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Fee Schedules.40 Moreover, the
Exchange notes that Third Party Data
Feed providers may charge
redistribution fees, such as Nasdaq’s
Extranet Access Fees and OTC Markets
Group’s Access Fees,41 which the
Exchange will pass through to the User
in addition to charging the applicable
connectivity fee.42 Finally, the
Exchange permits third party markets or
content providers that are also Users to
connect to their own Third Party Data
Feeds without a charge.43 The Exchange
represents that it does not charge Users
that are third party markets or content
providers for connectivity to their own
feeds because such parties generally
receive their own feeds for purposes of
diagnostics and testing.44
Connectivity to Other Services
As part of its data center offerings, the
Exchange also seeks to provide access
and connectivity to Third Party
Systems/content service providers, the
DTCC 45 (collectively ‘‘Service
Providers’’), third party certification and
testing feeds,46 and Virtual Control
Circuits 47 (‘‘VCCs’’).48 The proposed
rule change seeks to amend the Fee
Schedules to add new fees for
connectivity to these Service Providers
and third party certification and testing
feeds and to specify that connectivity is
dependent on a User meeting the
necessary technical requirements,
paying the applicable fees, and the
Exchange receiving authorization to
establish a connection for a User.49
Similarly, the proposed rule change
seeks to amend the Fee Schedules to
add a new fee for connectivity for VCCs
which will similarly require permission
from the other User before the Exchange
will establish the connection.50
40 See
id.
id.
42 See id.
43 See id. at 58996.
44 See id. at 58997.
45 ‘‘Such connectivity to DTCC is distinct from
the access to shared data services for clearing and
settlement services that a User receives when it
purchases access to the LCN or IP network. The
shared data services allow Users and other entities
with access to the Trading Systems to post files for
settlement and clearing services to access.’’ See id.
at 58998 n. 33.
46 Certification feeds certify that a User conforms
to any of the relevant content service providers’
requirements for accessing Third Party Systems or
receiving Third Party Data, whereas testing feeds
provide Users an environment in which to conduct
system tests with non-live data. See id. at 58997.
47 A VCC (previously called a ‘‘peer to peer’’
connection) is a two-way connection through which
two participants can establish a connection between
two points over dedicated bandwidth using the IP
network to be used for any purpose. See id.
48 See id. at 58995, 58997.
49 See id.
50 See id. at 58997.
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41 See
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Accordingly, the Exchange proposes to
amend its Fee Schedules to add
recurring monthly connectivity fees for
Service Providers and VCCs based upon
the bandwidth requirements per system
and/or VCC connection between two
Users.51 For third party certification and
testing feeds, the Exchange proposes to
revise its Fee Schedules to include a
monthly recurring $100 fee per feed.52
For each service, a User must execute
a contract with the respective Service
Provider and/or third party certification
and testing feed provider(s) pursuant to
which a User pays each the associated
fee(s) for their services.53 Once the
Exchange receives authorization from
the Service Provider and/or third party
certification and testing feed
provider(s), the Exchange will enable a
User to connect to the Service Provider
and/or third party certification and
testing feed(s) over the IP Network.54
Similarly, with respect to VCCs, the
Exchange will not establish a VCC
connection over its IP Network until the
other User confirms the VCC request.55
Finally, the Exchange notes, that its
execution system does not provide
access to Service Provider systems, nor
do the Service Provider systems provide
access to the Exchange’s execution
system.56
As noted above, the Commission
received one comment letter on a
related filing which is equally
applicable to this filing.57 This
commenter (1) requested clarification
about the history of the fees and ‘‘the
increasing costs of maintaining the data
center and providing co-location
compared to any related fee revenue’’
and (2) expressed a concern about
whether ‘‘there are any true alternatives
that are practically available to various
types of participants who are seeking to
compete with those who are paying
exchanges for co-location and data
services.’’ 58 Specifically, the
commenter noted that the NYSE states
that the connectivity fees are used to
defray the costs associated with
51 See
id. at 58995, 58997.
id. at 58997.
53 See id. at 58995, 58997.
54 See id. For Third Party Systems, once the
Exchange receives the authorization from the
respective third party it establishes a unicast
connection between the User and the relevant third
party over the IP network. See id. at 58995. For the
DTCC, ‘‘[t]he Exchange receives the DTCC feed over
its fiber optic network and, after DTCC and the User
enter into the services contract and the Exchange
receives authorization from DTCC, the Exchange
provides connectivity to DTCC to the User over the
User’s IP network port.’’ See id. at 58997.
55 See id. at 58997.
56 See id. at 58995, 58997.
57 See IEX Letter, supra note 4.
58 See id. at 1–2.
52 See
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providing co-location to Users, but, the
commenter questions whether the fees
to cover the increasing costs of
providing co-location are applied in an
equitable manner.59 Moreover, with
respect to alternatives, the commenter
noted that broker-dealers face best
execution obligations that are ‘‘critically
impacted by sub-millisecond differences
in access to exchange systems and
market data.’’ 60 As a result, market
participants face the quandary of
whether to trade from outside the data
center if other members are trading from
inside.61 Additionally, some brokerdealers trading for clients ‘‘may be
practically required to buy and consume
proprietary market data feeds directly
from exchanges in order to provide
competitive products for those
clients.’’ 62 The commenter believes that
this environment ‘‘imposes a form of
trading tax on all members by offering
different methods of access to different
members.’’ 63 The commenter questions
whether true alternatives are available
for participants seeking to compete with
firms paying for exchange co-location
and data services and whether the
Exchange’s ability to set fees is truly
constrained by market forces for a
‘‘comparable product’’.64
As discussed above, the Exchange
submitted a response to the commenter
on the related filing.65 The Exchange in
its Response Letter stated that historical
information about the development of
these product offerings is ‘‘not required
by the Act and is not relevant to [] the
substance of the Proposal–which is, by
definition, forward looking . . . .’’ 66
Additionally, the Response Letter noted
that costs are not the only consideration
in setting its prices, but rather the prices
‘‘include the competitive landscape;
whether Users would be required to
utilize a given service; the alternatives
available to Users; and, significantly, the
benefits Users obtain from the
services.’’ 67 With respect to the
commenter’s concern about members
needing additional information to assess
the fixed costs of exchange membership,
the Exchange responded that these are
not fixed costs of ‘‘Exchange members’’
but instead costs to any User who
voluntarily chooses to purchase such
services based upon ‘‘[t]he form and
latency of access and connectivity that
59 See
id.
id. at 2.
61 See id.
62 See id.
63 See id.
64 See id.
65 See Response Letter, supra note 4.
66 See id. at 2.
67 See id.
60 See
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bests suits a User’s needs . . . .’’ 68
Users do not require the Exchange’s
access or connectivity to trade on the
Exchange and can instead use
alternative access and connectivity
options for trading if they choose.69
In response to the commenter’s
argument regarding different methods of
access to trading, the Exchange stated
that ‘‘it is a vendor of fair and nondiscriminatory access, and like any
vendor with multiple product offerings,
different purchasers may make different
choices regarding which products they
wish to purchase.’’ 70 The Exchange
further stated in response to the
commenter’s concern of a lack of true
alternatives for a ‘‘comparable product’’,
that the filing lists several alternative
options for Users and a User can
evaluate the ‘‘relative benefits of those
alternatives and choose whichever it
deems most beneficial to it . . . .’’ 71
Amendment No. 1
In Amendment No. 1, the Exchange
offers additional justification for the
proposed rule change.72 In Amendment
No. 1, the Exchange addressed (1) the
benefits offered by the Premium NYSE
Data Products that are not present in the
Included Data Products (2) how
Premium NYSE Data Products are
related to the purpose of co-location, (3)
the similarity of charging for
connectivity to Third Party Systems and
DTCC and charging for connectivity to
Premium NYSE Data Products and (4)
the costs incurred by the Exchange in
providing connectivity to Premium
NYSE Data Products to Users in the data
center.73 In the Amendment, the
Exchange provided further detail on the
benefits provided to Users through the
Premium NYSE Data Products including
‘‘depth of book order data (with add,
modify and delete orders), trades (with
corrections and cancel/errors), opening
and closing imbalance data, security
status updates (e.g., trade corrections
and trading halts) and stock summary
messages.’’ 74 The Exchange also
clarified which costs are associated with
providing Users with access and
connectivity to the various services
68 See
id. at 4.
id.
70 See id. at 5. The Exchange makes a further
argument about the Exchange being a regulated colocation space whereas other unregulated colocation options are available. See id.
71 See id. at 6. The Exchange noted that it is not
addressing the commenter’s statements about
broker-dealers needing to purchase market data
from the Exchange as that is outside the scope of
this proposal. See id. at 5 n.13.
72 See Amendment No. 1, supra note 6.
73 See id.
74 See id.; see also supra note 27 and
accompanying text.
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69 See
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discussed in the filing, including the
Premium NYSE Data Products.
III. Proceedings To Determine Whether
To Disapprove SR–NYSEMKT–2016–63
and Grounds for Disapproval Under
Consideration
The Commission is instituting
proceedings pursuant to Section
19(b)(2)(B) of the Act 75 to determine
whether the proposed rule change, as
modified by Amendment No. 1, should
be approved or disapproved. Institution
of such proceedings is appropriate at
this time in view of the legal and policy
issues raised by the proposed rule
change, as modified by Amendment No.
1. Institution of proceedings does not
indicate that the Commission has
reached any conclusions with respect to
any of the issues involved. Rather, as
described below, the Commission seeks
and encourages interested persons to
provide comments on the proposed rule
change, as modified by Amendment No.
1.
Pursuant to Section 19(b)(2)(B) of the
Act, the Commission is providing notice
of the following grounds for disapproval
that are under consideration:
• Section 6(b)(4) of the Act, which
requires that the rules of a national
securities exchange ‘‘provide for the
equitable allocation of reasonable dues,
fees, and other charges among its
members and issuers and other persons
using its facilities,’’ 76
• Section 6(b)(5) of the Act, which
requires, among other things, that the
rules of a national securities exchange
be ‘‘designed to perfect the operation of
a free and open market and a national
market system’’ and ‘‘protect investors
and the public interest,’’ and not be
‘‘designed to permit unfair
discrimination between customers,
issuers, brokers, or dealers,’’ 77 and
• Section 6(b)(8) of the Act, which
requires that the rules of a national
securities exchange ‘‘not impose any
burden on competition not necessary or
appropriate in furtherance of the
purposes of [the Act].’’ 78
As discussed above, the Exchange’s
proposal would, among other things,
establish fees relating to a User’s access
to trading and execution services,
connectivity to data feeds and to testing
and certification feeds, connectivity to
clearing, and other services. The
Exchange believes that the proposed
fees are consistent with Sections 6(b)(4),
(5), and (8) of the Act because the fees
charged for co-location services are
75 15
U.S.C. 78s(b)(2)(B).
U.S.C. 78f(b)(4).
77 15 U.S.C. 78f(b)(5).
78 15 U.S.C. 78f(b)(8).
76 15
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86053
constrained by the active competition
for the order flow and other business
from such market participants.79 The
Exchange stated that charging excessive
fees would make it stand to lose not
only co-location revenues but also the
liquidity of the formerly co-located
trading firms.80 Additionally, the
Exchange believes that because there are
alternatives for a User both in and
outside of the data center if it believes
the fees are too excessive, the fees are
consistent with the Act.81 Specifically,
the Exchange noted that a User could
terminate its co-location arrangement
with the exchange ‘‘and adopt a possible
range of alternative strategies, including
placing their servers in a physically
proximate location outside the
exchange’s data center (which could be
a competing exchange), or pursuing
strategies less dependent upon the
lower exchange-to-participant latency
associated with co-location.’’ 82
Additionally, ‘‘[a]s alternatives to using
the Access and Connectivity provided
by the Exchange, a User may access or
connect to such services and products
through another User or through a
connection to an Exchange access center
outside the data center, third party
access center, or third party vendor. The
User may make such connection
through a third party
telecommunication provider, third party
wireless network, the SFTI network, or
a combination thereof.’’ 83 However, the
Exchange also stated that the
expectation of co-location was that
normally Users would expect reduced
latencies in sending orders to the
Exchange and in receiving market data
from the Exchange by being colocated.84 Therefore, as the Exchange
states in Amendment No. 1, both
Included Data Products and Premium
NYSE Data Products are ‘‘directly
related to the purpose of co-location.’’ 85
The commenter suggests that Users do
not in fact have alternatives to paying
the connectivity fee to obtain Premium
NYSE Data Products.86 If these products
are integral to co-located Users for
trading on the Exchange, the
Commission questions whether
obtaining the information contained in
these products from another source is,
in fact, a viable alternative given the
importance of receiving such
information in a timely manner. The
79 See
Notice, supra note 3, 81 FR at 58999.
id.
81 See id.
82 See id.
83 See id.
84 See id.
85 See Amendment No. 1, supra note 6.
86 See IEX Letter, supra note 4.
80 See
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Commission is concerned that the
Exchange has not supported its
argument that there are viable
alternatives for Users inside the data
center in lieu of obtaining such
information from the Exchange. The
Commission seeks comment on whether
Users do have viable alternatives to
paying the Exchange a connectivity fee
for the Premium NYSE Data Products.
Additionally, the Exchange states that
both Included Data Products and
Premium NYSE Data Products are
‘‘directly related to the purpose of colocation.’’ The Commission is
concerned that the Exchange has not
made clear why including the cost of
connectivity to the Included Data
Products in the purchase of a LCN or IP
network connection and charging an
additional fee to obtain the Premium
NYSE Data Products is an equitable
allocation of reasonable dues, fees, and
other charges among Users in the data
center; does not unfairly discriminate
between customers, issuers, brokers, or
dealers; and does not impose a burden
on competition which is not necessary
or appropriate in furtherance of the
purposes of the Act. The Commission is
concerned that the Exchange has not
identified a distinction between the
provision of connectivity to Included
Data Products and the provision of
connectivity to Premium NYSE Data
Products, as opposed to a distinction
between the utility of the Included Data
Products and Premium NYSE Data
Products to Users, which the Exchange
has demonstrated, even though these are
all NYSE proprietary data products.
Therefore, the Commission is concerned
that the Exchange has not identified a
reasonable basis for charging Users a
separate connectivity fee for the
Premium NYSE Data Products while
including connectivity in the purchase
price for a LCN/IP network connection.
The Exchange stated in its filing that
both are ‘‘directly related to the purpose
of co-location’’ but it has not clearly
justified why this permits including the
connectivity fee for Included Data
Products as part of the LCN or IP
Network connection, even for those
Users that do not use the Included Data
Products, but not including the
connectivity fee for the Premium NYSE
Data Products as well. Similarly, the
Exchange justifies the costs associated
with providing these feeds by stating
‘‘[i]n order to offer connectivity to the
Premium NYSE Data Products, the
Exchange must provide, maintain and
operate the data center facility hardware
and technology infrastructure. The
Exchange must handle the installation,
administration, monitoring, support and
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maintenance of the connectivity,
including by ensuring that the network
infrastructure has the necessary
bandwidth for the Premium NYSE Data
Products and responding to any
production issues.’’ 87 The Commission
does not believe the Exchange has
clearly explained why the same
rationale would not apply to the
Included Data Products. The Exchange
has sought to justify this on the basis
that the Premium NYSE Data Products
are similar to any other service offered
by the Exchange such as connectivity to
Third Party Systems and DTCC.88 The
Commission however is concerned that
these Premium NYSE Data Products are
similar to the Included Data Products
and therefore should not include
different fee structures as they are the
same offering by the Exchange within
the contemplated purpose of colocation. The Commission seeks
comment on whether charging fees for
connectivity to Included Data Products
and Premium NYSE Data Products in a
different manner is consistent with
Section 6(b)(4) of the Act.
Interested persons are invited to
submit written data, views, and
arguments regarding whether the
proposal, as modified by Amendment
No. 1, should be approved or
disapproved by December 20, 2016. Any
person who wishes to file a rebuttal to
any other person’s submission must file
that rebuttal by January 3, 2017. In light
of the concerns raised by the proposed
rule change, as discussed above, the
Commission invites additional comment
on the proposed rule change, as
modified by Amendment No. 1, as the
Commission continues its analysis of
the proposed rule change’s consistency
with Sections 6(b)(4), (5) and (8),92 or
any other provision of the Act, or the
rules and regulations thereunder. The
Commission asks that commenters
address the sufficiency and merit of the
Exchange’s statements in support of the
proposed rule change, as modified by
Amendment No. 1, in addition to any
other comments they may wish to
submit about the proposed rule change.
Comments may be submitted by any
of the following methods:
Procedure: Request for Written
Comments
The Commission requests that
interested persons provide written
submissions of their views, data and
arguments with respect to the concerns
identified above, as well as any other
concerns they may have with the
proposed rule change, as modified by
Amendment No. 1. In particular, the
Commission invites the written views of
interested persons concerning whether
the proposal, as modified by
Amendment No. 1, is consistent with
Sections 6(b)(4), (5), or (8) 89 or any
other provision of the Act, or the rules
and regulations thereunder. Although
there does not appear to be any issue
relevant to approval or disapproval
which would be facilitated by an oral
presentation of views, data, and
arguments, the Commission will
consider, pursuant to Rule 19b–4 under
the Act,90 any request for an
opportunity to make an oral
presentation.91
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 No. SR–
NYSEMKT–2016–63 on the subject line.
87 See
Amendment No. 1, supra note 6.
id.
89 15 U.S.C. 78f(b)(4), (b)(5) and (b)(8).
90 17 CFR 240.19b–4.
91 Section 19(b)(2) of the Act, as amended by the
Securities Act Amendments of 1975, Public Law
94–29 (June 4, 1975), grants to the Commission
flexibility to determine what type of proceeding—
either oral or notice and opportunity for written
comments—is appropriate for consideration of a
particular proposal by a self-regulatory
organization. See Securities Act Amendments of
1975, Senate Comm. on Banking, Housing & Urban
Affairs, S. Rep. No. 75, 94th Cong., 1st Sess. 30
(1975).
88 See
PO 00000
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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 No.
SR–NYSEMKT–2016–63. 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 Room, 100 F Street NE.,
Washington, DC 20549 on official
92 15
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business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such
filing also will be available for
inspection and copying at the principal
office of the 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 No. SR–NYSEMKT–
2016–63, and should be submitted by
December 20, 2016. Rebuttal comments
should be submitted by January 3, 2017.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.93
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016–28637 Filed 11–28–16; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Investment Company Act Release No.
32363; 812–14485]
OWLshares Trust, et al.; Notice of
Application
November 22, 2016.
Securities and Exchange
Commission (‘‘Commission’’).
ACTION: Notice of an application for an
order under section 6(c) of the
Investment Company Act of 1940 (the
‘‘Act’’) for an exemption from sections
2(a)(32), 5(a)(1), 22(d), and 22(e) of the
Act and rule 22c–1 under the Act, under
sections 6(c) and 17(b) of the Act for an
exemption from sections 17(a)(1) and
17(a)(2) of the Act, and under section
12(d)(1)(J) for an exemption from
sections 12(d)(1)(A) and 12(d)(1)(B) of
the Act. The requested order would
permit (a) index-based series of certain
open-end management investment
companies (‘‘Funds’’) to issue shares
redeemable in large aggregations only
(‘‘Creation Units’’); (b) secondary market
transactions in Fund shares to occur at
negotiated market prices rather than at
net asset value (‘‘NAV’’); (c) certain
Funds to pay redemption proceeds,
under certain circumstances, more than
seven days after the tender of shares for
redemption; (d) certain affiliated
persons of a Fund to deposit securities
into, and receive securities from, the
Fund in connection with the purchase
and redemption of Creation Units; and
(e) certain registered management
investment companies and unit
investment trusts outside of the same
asabaliauskas on DSK3SPTVN1PROD with NOTICES
AGENCY:
93 17
CFR 200.30–3(a)(57).
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group of investment companies as the
Funds (‘‘Funds of Funds’’) to acquire
shares of the Funds.
OWLshares Trust (‘‘Trust’’),
a Delaware statutory trust registered
under the Act as an open-end
management investment company with
multiple series, New Millennium
Macro, LLC d/b/a OWLshares Advisors
(the ‘‘Initial Adviser’’), a Nevada limited
liability company registered as an
investment adviser under the
Investment Advisers Act of 1940, and
ALPS Distributors, Inc. (‘‘Distributor’’),
a Colorado corporation and brokerdealer registered under the Securities
Exchange Act of 1934 (‘‘Exchange Act’’).
FILING DATES: The application was filed
on June 11, 2015 and amended on
October 23, 2015, June 29, 2016 and
October 13, 2016.
HEARING OR NOTIFICATION OF HEARING: An
order granting the requested relief will
be issued unless the Commission orders
a hearing. Interested persons may
request a hearing by writing to the
Commission’s Secretary and serving
applicants with a copy of the request,
personally or by mail. Hearing requests
should be received by the Commission
by 5:30 p.m. on December 19, 2016, and
should be accompanied by proof of
service on applicants, in the form of an
affidavit, or for lawyers, a certificate of
service. Pursuant to rule 0–5 under the
Act, hearing requests should state the
nature of the writer’s interest, any facts
bearing upon the desirability of a
hearing on the matter, the reason for the
request, and the issues contested.
Persons who wish to be notified of a
hearing may request notification by
writing to the Commission’s Secretary.
ADDRESSES: Secretary, Securities and
Exchange Commission, 100 F Street NE.,
Washington, DC 20549–1090;
Applicants: OWLshares Trust, 312
Arizona Avenue, Santa Monica, CA
90401; New Millennium Macro, LLC,
312 Arizona Avenue, Santa Monica, CA
90401; and ALPS Distributors, Inc.,
1290 Broadway, Suite 1100, Denver, CO
80203.
FOR FURTHER INFORMATION CONTACT: KayMario Vobis, Senior Counsel, at (202)
551–6728, or Mary Kay Frech, Branch
Chief, at (202) 551–6821 (Division of
Investment Management, Chief
Counsel’s Office).
SUPPLEMENTARY INFORMATION: The
following is a summary of the
application. The complete application
may be obtained via the Commission’s
Web site by searching for the file
number, or for an applicant using the
Company name box, at https://
APPLICANTS:
PO 00000
Frm 00136
Fmt 4703
Sfmt 4703
86055
www.sec.gov/search/search.htm or by
calling (202) 551–8090.
Summary of the Application
1. Applicants request an order that
would allow Funds to operate as index
exchange traded funds (‘‘ETFs’’).1 Fund
shares will be purchased and redeemed
at their NAV in Creation Units only. All
orders to purchase Creation Units and
all redemption requests will be placed
by or through an ‘‘Authorized
Participant’’, which will have signed a
participant agreement with the
Distributor. Shares will be listed and
traded individually on a national
securities exchange, where share prices
will be based on the current bid/offer
market. Any order granting the
requested relief would be subject to the
terms and conditions stated in the
application.
2. Each Fund will hold investment
positions selected to correspond
generally to the performance of an
Underlying Index. In the case of SelfIndexing Funds, an affiliated person, as
defined in section 2(a)(3) of the Act
(‘‘Affiliated Person’’), or an affiliated
person of an Affiliated Person (‘‘SecondTier Affiliate’’), of the Trust or a Fund,
of the Adviser, of any sub-adviser to or
promoter of a Fund, or of the Distributor
will compile, create, sponsor or
maintain the Underlying Index.2
3. Shares will be purchased and
redeemed in Creation Units and
generally on an in-kind basis. Except
where the purchase or redemption will
include cash under the limited
circumstances specified in the
application, purchasers will be required
to purchase Creation Units by
depositing specified instruments
(‘‘Deposit Instruments’’), and
shareholders redeeming their shares
will receive specified instruments
(‘‘Redemption Instruments’’). The
Deposit Instruments and the
Redemption Instruments will each
1 Applicants request that the order apply to the
initial series of the Trust and any additional series
of the Trust, and any other open-end management
investment company or series thereof, that may be
created in the future (each, included in the term
‘‘Fund’’), each of which will operate as an ETF and
will track a specified index comprised of domestic
or foreign equity and/or fixed income securities
(each, an ‘‘Underlying Index’’). Any Fund will (a)
be advised by the Initial Adviser or an entity
controlling, controlled by, or under common
control with the Initial Adviser (each, an
‘‘Adviser’’) and (b) comply with the terms and
conditions of the application.
2 Each Self-Indexing Fund will post on its Web
site the identities and quantities of the investment
positions that will form the basis for the Fund’s
calculation of its NAV at the end of the day.
Applicants believe that requiring Self-Indexing
Funds to maintain full portfolio transparency will
help address, together with other protections,
conflicts of interest with respect to such Funds.
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]]>Agencies
[Federal Register Volume 81, Number 229 (Tuesday, November 29, 2016)]
[Notices]
[Pages 86050-86055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28637]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-79378; File No. SR-NYSEMKT-2016-63]
Self-Regulatory Organizations; NYSE MKT LLC; Order Instituting
Proceedings To Determine Whether To Approve or Disapprove a Proposed
Change, as Modified by Amendment No. 1, Amending the Co-location
Services Offered by the Exchange To Add Certain Access and Connectivity
Fees
November 22, 2016.
I. Introduction
On August 16, 2016, NYSE MKT LLC (the ``Exchange'' or ``NYSE MKT'')
filed with the Securities and Exchange Commission (``Commission''),
pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change (1)
to provide additional information regarding access to various trading
and execution services; connectivity to market data feeds and testing
and certification feeds; connectivity to Third Party Systems; and
connectivity to DTCC provided to Users using data center local area
networks; and (2) to establish fees relating to a User's access to
various trading and execution services; connectivity to market data
feeds and testing and certification feeds; connectivity to DTCC; and
other services. The proposed rule change was published for comment in
the Federal Register on August 26, 2016.\3\ The Commission received no
comments in response to the proposed rule change.\4\ On October 4,
2016, the Commission extended the time period within which to approve
the proposed rule change, disapprove the proposed rule change, or
institute proceedings to determine whether to approve or disapprove the
proposed rule change to November 24, 2016.\5\
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ See Securities Exchange Act Release No. 34-78629 (August 22,
2016), 81 FR 58992 (``Notice'').
\4\ The Commission notes that it did receive one comment letter
on a related filing, NYSE-2016-45, which is equally relevant to this
filing. See letter to Brent J. Fields, Secretary, Commission, from
John Ramsay, Chief Market Policy Officer, Investors Exchange LLC
(IEX), dated September 9, 2016 (``IEX Letter'').
On September 23, 2016, the NYSE submitted a response
(``Response Letter'').
\5\ See Securities Exchange Act Release No. 34-78968 (September
28, 2016), 81 FR 68493.
---------------------------------------------------------------------------
On November 2, 2016, the Exchange filed Amendment No. 1 to the
proposed rule change.\6\ The Commission is publishing this order to
solicit comments on Amendment No. 1 from interested persons and to
institute proceedings pursuant to Exchange Act Section 19(b)(2)(B) to
determine whether to approve or disapprove the proposed rule change, as
modified by Amendment No. 1.\7\ Institution of proceedings does not
indicate that the Commission has reached any conclusions with respect
to the proposed rule change, nor does it mean that the Commission will
ultimately disapprove the proposed rule change. Rather, as discussed
below, the Commission seeks additional input on the proposed rule
change, as modified by Amendment No. 1, and on the issues presented by
the proposal.
---------------------------------------------------------------------------
\6\ Amendment No. 1 is discussed further infra. Amendment No. 1
is available on the Commission's Web site at https://www.sec.gov/comments/sr-nysemkt-2016-63/nysemkt201663-1.pdf.
\7\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------
II. Description of the Proposed Rule Change, as Modified by Amendment
No. 1
The proposed rule change seeks to amend the co-location services
offered by the Exchange to (1) provide additional information regarding
the access to trading and execution services and connectivity to data
provided to Users with local area networks available in the data
center; and (2) establish fees relating to a User's \8\ access to
trading and execution services; connectivity to data feeds and to
testing and certification feeds; connectivity to clearing; and other
services.\9\
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\8\ For purposes of the Exchange's co-location services, a
``User'' means any market participant that requests to receive co-
location services directly from the Exchange. See Securities
Exchange Act Release No. 76008 (September 29, 2015), 80 FR 60190
(October 5, 2015) (SR-NYSE-2015-40). As specified in the Fee
Schedules, 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 NYSE MKT LLC (``NYSE MKT'') and NYSE Arca,
Inc. (``NYSE Arca'' and, together with NYSE MKT, the ``Affiliate
SROs''). See Securities Exchange Act Release No. 70206 (August 15,
2013), 78 FR 51765 (August 21, 2013) (SR-NYSE-2013-59).
\9\ See Notice, supra note 3, 81 FR at 58993.
---------------------------------------------------------------------------
Background and Access to Exchange Systems
As discussed more fully in the Notice, a User can purchase access
to the Liquidity Center Network (``LCN'') and/or internet protocol
(``IP'') network in the data center through the purchase of a 1, 10, or
40 Gb LCN circuit, a 10 Gb LX Circuit, bundled network access, Partial
Cabinet Solution bundle, or 1, 10 or 40 Gb IP network access.\10\ The
purchase of any of the LCN or IP network circuit options gives a User
access \11\ to the Exchange's trading and execution systems,
connectivity to the Exchange's certification and testing feeds,\12\ and
the ability to connect to any NYSE Data Product.\13\ More specifically,
access to the Exchange's trading and execution system provides a User
with access to the Exchange's ``customer gateways that provide for
order entry, order receipt (i.e. confirmation that an order has been
received), receipt of drop copies and trade reporting (i.e. whether a
trade is executed or cancelled), as well as for sending information to
shared data services for clearing and settlement.'' \14\ The Exchange
seeks to add clarifying language in its proposed rule to reflect the
services included with purchase of Exchange system access.\15\
---------------------------------------------------------------------------
\10\ See id.
\11\ The purchase of access is subject to receiving
authorization from the NYSE, NYSE MKT or NYSE Arca for the Included
Data Products, as applicable. See id. at 58993 n.10.
\12\ Certification feeds are used to certify that a User
conforms to any relevant technical requirements for receipt of data
or access to Exchange systems. Testing feeds, which do not carry
live production data, provide Users with an environment to conduct
tests with the non-live data, including testing for upcoming
Exchange releases and product enhancements or the User's own
software development. See id. at 58993. These feeds are only
available over the IP network, however a User without an IP network
connection may obtain an IP network circuit for purposes of testing
and certification for free for three months. See id. at 58993 n.12.
\13\ See id. at 58993.
\14\ See id. The Exchange represents that connectivity to the
Exchange systems can be obtained without the purchase of access to
the LCN or IP network. See id.
\15\ See id.
---------------------------------------------------------------------------
Connectivity to Included Data Products
As discussed more fully below, the Exchange offers connectivity to
three types of data products: Included Data Products, Premium NYSE Data
Products, and Third Party Data Feeds.\16\
[[Page 86051]]
As discussed more fully in the Notice, the Included Data Products
include Consolidated Tape Association (``CTA'') disseminated data feeds
and NMS data feeds.\17\ The CTA disseminates consolidated real-time
trade and quote information in NYSE listed securities (Network A) and
NYSE MKT, NYSE Arca and other regional exchanges' listed securities
(Network B) pursuant to a national market system plan.\18\ The NMS data
feeds include Consolidated Tape System and Consolidated Quote System
data streams, as well as Options Price Reporting Authority feeds.\19\
To obtain connectivity to the Included Data Products, a User must enter
into a contract with the data provider and pay any applicable fees.\20\
Once the Exchange receives an authorization from the data feed
provider, the Exchange will provide connectivity to the Included Data
Product(s) through a User's LCN or IP network port.\21\ The Exchange
does not charge any additional fees for this connectivity ``because
such access and connectivity is directly related to the purpose of co-
location.'' \22\ The Exchange proposes to add language to the NYSE MKT
Equities Price List and the NYSE Amex Options Fee Schedule
(collectively ``Fee Schedules'') to specify that there are no
additional fees for connectivity to Included Data Products.\23\
---------------------------------------------------------------------------
\16\ See id. at 58993-58994. Neither the NYSE Data Products or
Third Party Data Feeds provide access or order entry to the
Exchange's execution system. See id. at 58994 n. 15. Connectivity to
the NYSE Data Products is available in three forms: A resilient
feed, ``Feed A'', or ``Feed B.'' A resilient feed includes two
copies of the same feed for redundancy purposes and Feed A and Feed
B are identical feeds. A User that wants redundancy would connect to
both Feed A and Feed B or two resilient feeds, using two different
ports. See id. at 58993; see also id. at 58993 n. 13.
\17\ See Notice, supra note 3, 81 FR at 58994.
\18\ See id.
\19\ See id.
\20\ See id.
\21\ See id.
\22\ See id.; see also Amendment No. 1, supra note 6.
\23\ See Notice, supra note 3, 81 FR at 58994.
---------------------------------------------------------------------------
Connectivity to Premium NYSE Data Products
As part of its data product offerings, the Exchange now proposes to
provide connectivity to Premium NYSE Data Products from the Exchange
and its Affiliate SROs to Users over either the LCN and/or IP network
``because such access and connectivity is directly related to the
purpose of co-location.'' \24\ The proposed rule change seeks to amend
the Fee Schedules to specify the connectivity fees for Premium NYSE
Data Products.\25\
---------------------------------------------------------------------------
\24\ See id.; see also Amendment No. 1, supra note 6.
\25\ See Notice, supra note 3, 81 FR at 58995.
---------------------------------------------------------------------------
As discussed more fully in the Notice, the Premium NYSE Data
Products are ``equity market data products that are variants of the
equity Included Data Products. Each Premium NYSE Data Product
integrates, or includes data elements from, several Included Data
Products.'' \26\ These Integrated Feeds include ``depth of book order
data (with add, modify and delete orders), trades (with corrections and
cancel/errors), opening and closing imbalance data, security status
updates (e.g., trade corrections and trading halts) and stock summary
messages. The stock summary messages display a market's opening price,
high price, low price, closing price, and cumulative volume for a
security. Only the Integrated Feeds offer all these components in
sequence in one feed.'' \27\ Additionally, the NYSE BQT data feed
includes, among other things, certain data elements from six of the
equity Included Data Products of the Exchange and Affiliated SROs in
one data feed: NYSE Trades, NYSE BBO, NYSE Arca Trades, NYSE Arca BBO,
NYSE MKT Trades, and NYSE MKT BBO.\28\
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\26\ See id. at 58994. Examples include: (1) The NYSE Integrated
Feed that includes, among other items, data from three of the equity
Included Data Products: NYSE OpenBook, NYSE Trades, and NYSE Order
Imbalances; and (2) the NYSE BQT data feed that includes, among
other items, specific data elements from six of the equity Included
Data Products: NYSE Trades, NYSE BBO, NYSE Arca Trades, NYSE Arca
BBO, NYSE MKT Trades, and NYSE MKT BBO. See id. Additionally, with
respect to the NYSE Amex and NYSE Arca options data, neither NYSE
Amex nor NYSE Arca offer Premium Data Products because there are
``no options data products that integrate, or include data elements
from, other option data products in the same manner that the NYSE,
NYSE MKT and NYSE Arca Integrated Feeds integrate, or include data
elements from, equity Included Data Products.'' See id.
\27\ See Amendment No. 1, supra note 6.
\28\ See id. None of the Included Data Products provide Users
with data from the Exchange and Affiliate SROs in one feed. See id.
Also, according to the Exchange, the Premium Data Products contain
more data overall in comparison to the Included Data Products and
potentially can be subject to greater technical specifications in
order to receive the feed(s). See Notice, supra note 3, 81 FR at
58995. ``For example, a User connecting to the NYSE Arca Integrated
Feed, NYSE Integrated Feed or NYSE MKT Integrated Feed would need at
least a 1 Gb IP network connection in order to connect to either
Feed A or Feed B. To connect to a resilient feed, the User would
require an LCN or IP network connection of at least 10 Gb.'' See id.
at 58993 n. 13.
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As is the case with Included Data Products, a User of Premium NYSE
Data Products must enter into a contract with the data provider for
each feed and the provider would then authorize the Exchange to provide
connectivity of the particular feed to that User's LCN or IP Network
port.\29\ The Exchange proposes to charge a User a monthly recurring
fee per each Premium NYSE Data Product feed for the connectivity
provided by the Exchange.\30\
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\29\ See Notice, supra note 3, 81 FR at 58994.
\30\ See id. at 58995.
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Connectivity to Third Party Data Feeds
The Exchange's proposal further seeks to offer Third Party Data
Feeds to Users and to charge a connectivity fee per feed as reflected
on its Fee Schedules.\31\ In the data center, the Exchange receives
Third Party Data Feeds from multiple national securities exchanges and
other content service providers which it then provides to requesting
Users for a fee.\32\ With the exceptions of Global OTC and NYSE Global
Index, Users connect to Third Party Data Feeds over the IP network.\33\
In charging for this service, the Exchange notes that its practice is
consistent with the monthly fee Nasdaq charges its co-location
customers for connectivity to third party data.\34\
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\31\ See id. at 58996.
\32\ See id.
\33\ See id.
\34\ See id. The Exchange notes that Nasdaq charges monthly fees
of $1,500 and $4,000 for connectivity to BATS Y and BATS,
respectively, and of $2,500 for connectivity to EDGA or EDGX. See
id.
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In order to connect to a Third Party Data Feed, a User must enter
into a contract with the relevant third party market or content service
provider, under which the third party market or content service
provider charges the User for the data feed.\35\ The Exchange receives
these Third Party Data Feeds over its fiber optic network and, after
the data provider and User enter into a contract and the Exchange
receives authorization from the data provider, the Exchange re-
transmits the data to the User over a User's port.\36\ Users only
receive, and are only charged for, the feed(s) which they have entered
into contracts for.\37\ Additionally, the Exchange notes that Third
Party Data Feeds do not provide access or order entry to its execution
system or access to the execution system of the third party generating
the feed.\38\ The Exchange proposes to charge a monthly recurring fee
for connectivity to each Third Party Data Feed, however for SuperFeed
and MSCI it proposes to charge different fees which vary based on the
bandwidth requirements for the connection.\39\ A User is free to
receive all or some of the feeds included in the
[[Page 86052]]
Fee Schedules.\40\ Moreover, the Exchange notes that Third Party Data
Feed providers may charge redistribution fees, such as Nasdaq's
Extranet Access Fees and OTC Markets Group's Access Fees,\41\ which the
Exchange will pass through to the User in addition to charging the
applicable connectivity fee.\42\ Finally, the Exchange permits third
party markets or content providers that are also Users to connect to
their own Third Party Data Feeds without a charge.\43\ The Exchange
represents that it does not charge Users that are third party markets
or content providers for connectivity to their own feeds because such
parties generally receive their own feeds for purposes of diagnostics
and testing.\44\
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\35\ See id.
\36\ See id.
\37\ See id.
\38\ See id. There is one exception to this for the ICE feeds
which include both market data and trading and clearing services. In
order to receive the ICE feeds, a User must receive authorization
from ICE to receive both market data and trading and clearing
services. See id.
\39\ See id.
\40\ See id.
\41\ See id.
\42\ See id.
\43\ See id. at 58996.
\44\ See id. at 58997.
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Connectivity to Other Services
As part of its data center offerings, the Exchange also seeks to
provide access and connectivity to Third Party Systems/content service
providers, the DTCC \45\ (collectively ``Service Providers''), third
party certification and testing feeds,\46\ and Virtual Control Circuits
\47\ (``VCCs'').\48\ The proposed rule change seeks to amend the Fee
Schedules to add new fees for connectivity to these Service Providers
and third party certification and testing feeds and to specify that
connectivity is dependent on a User meeting the necessary technical
requirements, paying the applicable fees, and the Exchange receiving
authorization to establish a connection for a User.\49\ Similarly, the
proposed rule change seeks to amend the Fee Schedules to add a new fee
for connectivity for VCCs which will similarly require permission from
the other User before the Exchange will establish the connection.\50\
Accordingly, the Exchange proposes to amend its Fee Schedules to add
recurring monthly connectivity fees for Service Providers and VCCs
based upon the bandwidth requirements per system and/or VCC connection
between two Users.\51\ For third party certification and testing feeds,
the Exchange proposes to revise its Fee Schedules to include a monthly
recurring $100 fee per feed.\52\
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\45\ ``Such connectivity to DTCC is distinct from the access to
shared data services for clearing and settlement services that a
User receives when it purchases access to the LCN or IP network. The
shared data services allow Users and other entities with access to
the Trading Systems to post files for settlement and clearing
services to access.'' See id. at 58998 n. 33.
\46\ Certification feeds certify that a User conforms to any of
the relevant content service providers' requirements for accessing
Third Party Systems or receiving Third Party Data, whereas testing
feeds provide Users an environment in which to conduct system tests
with non-live data. See id. at 58997.
\47\ A VCC (previously called a ``peer to peer'' connection) is
a two-way connection through which two participants can establish a
connection between two points over dedicated bandwidth using the IP
network to be used for any purpose. See id.
\48\ See id. at 58995, 58997.
\49\ See id.
\50\ See id. at 58997.
\51\ See id. at 58995, 58997.
\52\ See id. at 58997.
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For each service, a User must execute a contract with the
respective Service Provider and/or third party certification and
testing feed provider(s) pursuant to which a User pays each the
associated fee(s) for their services.\53\ Once the Exchange receives
authorization from the Service Provider and/or third party
certification and testing feed provider(s), the Exchange will enable a
User to connect to the Service Provider and/or third party
certification and testing feed(s) over the IP Network.\54\ Similarly,
with respect to VCCs, the Exchange will not establish a VCC connection
over its IP Network until the other User confirms the VCC request.\55\
Finally, the Exchange notes, that its execution system does not provide
access to Service Provider systems, nor do the Service Provider systems
provide access to the Exchange's execution system.\56\
---------------------------------------------------------------------------
\53\ See id. at 58995, 58997.
\54\ See id. For Third Party Systems, once the Exchange receives
the authorization from the respective third party it establishes a
unicast connection between the User and the relevant third party
over the IP network. See id. at 58995. For the DTCC, ``[t]he
Exchange receives the DTCC feed over its fiber optic network and,
after DTCC and the User enter into the services contract and the
Exchange receives authorization from DTCC, the Exchange provides
connectivity to DTCC to the User over the User's IP network port.''
See id. at 58997.
\55\ See id. at 58997.
\56\ See id. at 58995, 58997.
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As noted above, the Commission received one comment letter on a
related filing which is equally applicable to this filing.\57\ This
commenter (1) requested clarification about the history of the fees and
``the increasing costs of maintaining the data center and providing co-
location compared to any related fee revenue'' and (2) expressed a
concern about whether ``there are any true alternatives that are
practically available to various types of participants who are seeking
to compete with those who are paying exchanges for co-location and data
services.'' \58\ Specifically, the commenter noted that the NYSE states
that the connectivity fees are used to defray the costs associated with
providing co-location to Users, but, the commenter questions whether
the fees to cover the increasing costs of providing co-location are
applied in an equitable manner.\59\ Moreover, with respect to
alternatives, the commenter noted that broker-dealers face best
execution obligations that are ``critically impacted by sub-millisecond
differences in access to exchange systems and market data.'' \60\ As a
result, market participants face the quandary of whether to trade from
outside the data center if other members are trading from inside.\61\
Additionally, some broker-dealers trading for clients ``may be
practically required to buy and consume proprietary market data feeds
directly from exchanges in order to provide competitive products for
those clients.'' \62\ The commenter believes that this environment
``imposes a form of trading tax on all members by offering different
methods of access to different members.'' \63\ The commenter questions
whether true alternatives are available for participants seeking to
compete with firms paying for exchange co-location and data services
and whether the Exchange's ability to set fees is truly constrained by
market forces for a ``comparable product''.\64\
---------------------------------------------------------------------------
\57\ See IEX Letter, supra note 4.
\58\ See id. at 1-2.
\59\ See id.
\60\ See id. at 2.
\61\ See id.
\62\ See id.
\63\ See id.
\64\ See id.
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As discussed above, the Exchange submitted a response to the
commenter on the related filing.\65\ The Exchange in its Response
Letter stated that historical information about the development of
these product offerings is ``not required by the Act and is not
relevant to [[hairsp]] the substance of the Proposal-which is, by
definition, forward looking . . . .'' \66\ Additionally, the Response
Letter noted that costs are not the only consideration in setting its
prices, but rather the prices ``include the competitive landscape;
whether Users would be required to utilize a given service; the
alternatives available to Users; and, significantly, the benefits Users
obtain from the services.'' \67\ With respect to the commenter's
concern about members needing additional information to assess the
fixed costs of exchange membership, the Exchange responded that these
are not fixed costs of ``Exchange members'' but instead costs to any
User who voluntarily chooses to purchase such services based upon
``[t]he form and latency of access and connectivity that
[[Page 86053]]
bests suits a User's needs . . . .'' \68\ Users do not require the
Exchange's access or connectivity to trade on the Exchange and can
instead use alternative access and connectivity options for trading if
they choose.\69\
---------------------------------------------------------------------------
\65\ See Response Letter, supra note 4.
\66\ See id. at 2.
\67\ See id.
\68\ See id. at 4.
\69\ See id.
---------------------------------------------------------------------------
In response to the commenter's argument regarding different methods
of access to trading, the Exchange stated that ``it is a vendor of fair
and non-discriminatory access, and like any vendor with multiple
product offerings, different purchasers may make different choices
regarding which products they wish to purchase.'' \70\ The Exchange
further stated in response to the commenter's concern of a lack of true
alternatives for a ``comparable product'', that the filing lists
several alternative options for Users and a User can evaluate the
``relative benefits of those alternatives and choose whichever it deems
most beneficial to it . . . .'' \71\
---------------------------------------------------------------------------
\70\ See id. at 5. The Exchange makes a further argument about
the Exchange being a regulated co-location space whereas other
unregulated co-location options are available. See id.
\71\ See id. at 6. The Exchange noted that it is not addressing
the commenter's statements about broker-dealers needing to purchase
market data from the Exchange as that is outside the scope of this
proposal. See id. at 5 n.13.
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Amendment No. 1
In Amendment No. 1, the Exchange offers additional justification
for the proposed rule change.\72\ In Amendment No. 1, the Exchange
addressed (1) the benefits offered by the Premium NYSE Data Products
that are not present in the Included Data Products (2) how Premium NYSE
Data Products are related to the purpose of co-location, (3) the
similarity of charging for connectivity to Third Party Systems and DTCC
and charging for connectivity to Premium NYSE Data Products and (4) the
costs incurred by the Exchange in providing connectivity to Premium
NYSE Data Products to Users in the data center.\73\ In the Amendment,
the Exchange provided further detail on the benefits provided to Users
through the Premium NYSE Data Products including ``depth of book order
data (with add, modify and delete orders), trades (with corrections and
cancel/errors), opening and closing imbalance data, security status
updates (e.g., trade corrections and trading halts) and stock summary
messages.'' \74\ The Exchange also clarified which costs are associated
with providing Users with access and connectivity to the various
services discussed in the filing, including the Premium NYSE Data
Products.
---------------------------------------------------------------------------
\72\ See Amendment No. 1, supra note 6.
\73\ See id.
\74\ See id.; see also supra note 27 and accompanying text.
---------------------------------------------------------------------------
III. Proceedings To Determine Whether To Disapprove SR-NYSEMKT-2016-63
and Grounds for Disapproval Under Consideration
The Commission is instituting proceedings pursuant to Section
19(b)(2)(B) of the Act \75\ to determine whether the proposed rule
change, as modified by Amendment No. 1, should be approved or
disapproved. Institution of such proceedings is appropriate at this
time in view of the legal and policy issues raised by the proposed rule
change, as modified by Amendment No. 1. Institution of proceedings does
not indicate that the Commission has reached any conclusions with
respect to any of the issues involved. Rather, as described below, the
Commission seeks and encourages interested persons to provide comments
on the proposed rule change, as modified by Amendment No. 1.
---------------------------------------------------------------------------
\75\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------
Pursuant to Section 19(b)(2)(B) of the Act, the Commission is
providing notice of the following grounds for disapproval that are
under consideration:
Section 6(b)(4) of the Act, which requires that the rules
of a national securities exchange ``provide for the equitable
allocation of reasonable dues, fees, and other charges among its
members and issuers and other persons using its facilities,'' \76\
---------------------------------------------------------------------------
\76\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------
Section 6(b)(5) of the Act, which requires, among other
things, that the rules of a national securities exchange be ``designed
to perfect the operation of a free and open market and a national
market system'' and ``protect investors and the public interest,'' and
not be ``designed to permit unfair discrimination between customers,
issuers, brokers, or dealers,'' \77\ and
---------------------------------------------------------------------------
\77\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
Section 6(b)(8) of the Act, which requires that the rules
of a national securities exchange ``not impose any burden on
competition not necessary or appropriate in furtherance of the purposes
of [the Act].'' \78\
---------------------------------------------------------------------------
\78\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------
As discussed above, the Exchange's proposal would, among other
things, establish fees relating to a User's access to trading and
execution services, connectivity to data feeds and to testing and
certification feeds, connectivity to clearing, and other services. The
Exchange believes that the proposed fees are consistent with Sections
6(b)(4), (5), and (8) of the Act because the fees charged for co-
location services are constrained by the active competition for the
order flow and other business from such market participants.\79\ The
Exchange stated that charging excessive fees would make it stand to
lose not only co-location revenues but also the liquidity of the
formerly co-located trading firms.\80\ Additionally, the Exchange
believes that because there are alternatives for a User both in and
outside of the data center if it believes the fees are too excessive,
the fees are consistent with the Act.\81\ Specifically, the Exchange
noted that a User could terminate its co-location arrangement with the
exchange ``and adopt a possible range of alternative strategies,
including placing their servers in a physically proximate location
outside the exchange's data center (which could be a competing
exchange), or pursuing strategies less dependent upon the lower
exchange-to-participant latency associated with co-location.'' \82\
Additionally, ``[a]s alternatives to using the Access and Connectivity
provided by the Exchange, a User may access or connect to such services
and products through another User or through a connection to an
Exchange access center outside the data center, third party access
center, or third party vendor. The User may make such connection
through a third party telecommunication provider, third party wireless
network, the SFTI network, or a combination thereof.'' \83\ However,
the Exchange also stated that the expectation of co-location was that
normally Users would expect reduced latencies in sending orders to the
Exchange and in receiving market data from the Exchange by being co-
located.\84\ Therefore, as the Exchange states in Amendment No. 1, both
Included Data Products and Premium NYSE Data Products are ``directly
related to the purpose of co-location.'' \85\
---------------------------------------------------------------------------
\79\ See Notice, supra note 3, 81 FR at 58999.
\80\ See id.
\81\ See id.
\82\ See id.
\83\ See id.
\84\ See id.
\85\ See Amendment No. 1, supra note 6.
---------------------------------------------------------------------------
The commenter suggests that Users do not in fact have alternatives
to paying the connectivity fee to obtain Premium NYSE Data
Products.\86\ If these products are integral to co-located Users for
trading on the Exchange, the Commission questions whether obtaining the
information contained in these products from another source is, in
fact, a viable alternative given the importance of receiving such
information in a timely manner. The
[[Page 86054]]
Commission is concerned that the Exchange has not supported its
argument that there are viable alternatives for Users inside the data
center in lieu of obtaining such information from the Exchange. The
Commission seeks comment on whether Users do have viable alternatives
to paying the Exchange a connectivity fee for the Premium NYSE Data
Products.
---------------------------------------------------------------------------
\86\ See IEX Letter, supra note 4.
---------------------------------------------------------------------------
Additionally, the Exchange states that both Included Data Products
and Premium NYSE Data Products are ``directly related to the purpose of
co-location.'' The Commission is concerned that the Exchange has not
made clear why including the cost of connectivity to the Included Data
Products in the purchase of a LCN or IP network connection and charging
an additional fee to obtain the Premium NYSE Data Products is an
equitable allocation of reasonable dues, fees, and other charges among
Users in the data center; does not unfairly discriminate between
customers, issuers, brokers, or dealers; and does not impose a burden
on competition which is not necessary or appropriate in furtherance of
the purposes of the Act. The Commission is concerned that the Exchange
has not identified a distinction between the provision of connectivity
to Included Data Products and the provision of connectivity to Premium
NYSE Data Products, as opposed to a distinction between the utility of
the Included Data Products and Premium NYSE Data Products to Users,
which the Exchange has demonstrated, even though these are all NYSE
proprietary data products. Therefore, the Commission is concerned that
the Exchange has not identified a reasonable basis for charging Users a
separate connectivity fee for the Premium NYSE Data Products while
including connectivity in the purchase price for a LCN/IP network
connection. The Exchange stated in its filing that both are ``directly
related to the purpose of co-location'' but it has not clearly
justified why this permits including the connectivity fee for Included
Data Products as part of the LCN or IP Network connection, even for
those Users that do not use the Included Data Products, but not
including the connectivity fee for the Premium NYSE Data Products as
well. Similarly, the Exchange justifies the costs associated with
providing these feeds by stating ``[i]n order to offer connectivity to
the Premium NYSE Data Products, the Exchange must provide, maintain and
operate the data center facility hardware and technology
infrastructure. The Exchange must handle the installation,
administration, monitoring, support and maintenance of the
connectivity, including by ensuring that the network infrastructure has
the necessary bandwidth for the Premium NYSE Data Products and
responding to any production issues.'' \87\ The Commission does not
believe the Exchange has clearly explained why the same rationale would
not apply to the Included Data Products. The Exchange has sought to
justify this on the basis that the Premium NYSE Data Products are
similar to any other service offered by the Exchange such as
connectivity to Third Party Systems and DTCC.\88\ The Commission
however is concerned that these Premium NYSE Data Products are similar
to the Included Data Products and therefore should not include
different fee structures as they are the same offering by the Exchange
within the contemplated purpose of co-location. The Commission seeks
comment on whether charging fees for connectivity to Included Data
Products and Premium NYSE Data Products in a different manner is
consistent with Section 6(b)(4) of the Act.
---------------------------------------------------------------------------
\87\ See Amendment No. 1, supra note 6.
\88\ See id.
---------------------------------------------------------------------------
Procedure: Request for Written Comments
The Commission requests that interested persons provide written
submissions of their views, data and arguments with respect to the
concerns identified above, as well as any other concerns they may have
with the proposed rule change, as modified by Amendment No. 1. In
particular, the Commission invites the written views of interested
persons concerning whether the proposal, as modified by Amendment No.
1, is consistent with Sections 6(b)(4), (5), or (8) \89\ or any other
provision of the Act, or the rules and regulations thereunder. Although
there does not appear to be any issue relevant to approval or
disapproval which would be facilitated by an oral presentation of
views, data, and arguments, the Commission will consider, pursuant to
Rule 19b-4 under the Act,\90\ any request for an opportunity to make an
oral presentation.\91\
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\89\ 15 U.S.C. 78f(b)(4), (b)(5) and (b)(8).
\90\ 17 CFR 240.19b-4.
\91\ Section 19(b)(2) of the Act, as amended by the Securities
Act Amendments of 1975, Public Law 94-29 (June 4, 1975), grants to
the Commission flexibility to determine what type of proceeding--
either oral or notice and opportunity for written comments--is
appropriate for consideration of a particular proposal by a self-
regulatory organization. See Securities Act Amendments of 1975,
Senate Comm. on Banking, Housing & Urban Affairs, S. Rep. No. 75,
94th Cong., 1st Sess. 30 (1975).
---------------------------------------------------------------------------
Interested persons are invited to submit written data, views, and
arguments regarding whether the proposal, as modified by Amendment No.
1, should be approved or disapproved by December 20, 2016. Any person
who wishes to file a rebuttal to any other person's submission must
file that rebuttal by January 3, 2017. In light of the concerns raised
by the proposed rule change, as discussed above, the Commission invites
additional comment on the proposed rule change, as modified by
Amendment No. 1, as the Commission continues its analysis of the
proposed rule change's consistency with Sections 6(b)(4), (5) and
(8),\92\ or any other provision of the Act, or the rules and
regulations thereunder. The Commission asks that commenters address the
sufficiency and merit of the Exchange's statements in support of the
proposed rule change, as modified by Amendment No. 1, in addition to
any other comments they may wish to submit about the proposed rule
change.
---------------------------------------------------------------------------
\92\ 15 U.S.C. 78f(b)(4), (b)(5) and (b)(8).
---------------------------------------------------------------------------
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 No. SR-NYSEMKT-2016-63 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 No. SR-NYSEMKT-2016-63. 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 Room, 100 F Street NE.,
Washington, DC 20549 on official
[[Page 86055]]
business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of
such filing also will be available for inspection and copying at the
principal office of the 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 No. SR-NYSEMKT-2016-63, and should be submitted by December 20,
2016. Rebuttal comments should be submitted by January 3, 2017.
---------------------------------------------------------------------------
\93\ 17 CFR 200.30-3(a)(57).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\93\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-28637 Filed 11-28-16; 8:45 am]
BILLING CODE 8011-01-P
