Self-Regulatory Organizations; NYSE American LLC; Notice of Filing of Proposed Rule Change To Establish Procedures for the Allocation of Power to Its Co-Located Users, 11350-11356 [2021-03719]
Download as PDF
<![CDATA[
11350
Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Notices
khammond on DSKJM1Z7X2PROD with NOTICES
Cabinet Threshold and Power Threshold
are reached. Doing so would make the
power reserved for PNU cabinets and
the cabinets themselves available to
meet User demand for power and
cabinets. As a result, no User would be
subject to limitations on its ability to
purchase and use power or cabinets at
the same time that PNU cabinets were
dormant. A User does not require a PNU
cabinet to trade on the Exchange, and
whether or not a User has a PNU cabinet
has no effect on such User’s orders
going to, or trade data coming from, the
Exchange, or the User’s ability to utilize
other co-location services. Rather, the
proposed change would assist the
Exchange in accommodating demand
for co-location services on an equitable
basis.
Use of any co-location service is
completely voluntary, and each market
participant is able to determine whether
to use co-location services based on the
requirements of its business operations.
Intermarket Competition
The Exchange does not believe that
the proposed change would impose any
burden on intermarket competition that
is not necessary or appropriate.
The Exchange operates in a highly
competitive market in which exchanges
and other vendors (i.e., Hosting Users)
offer co-location services as a means to
facilitate the trading and other market
activities of those market participants
who believe that co-location enhances
the efficiency of their operations.
Accordingly, fees charged for colocation services are constrained by the
active competition for the order flow of,
and other business from, such market
participants.
The Commission has repeatedly
expressed its preference for competition
over regulatory intervention in
determining prices, products, and
services in the securities markets.
Specifically, in Regulation NMS, the
Commission highlighted the importance
of market forces in determining prices
and SRO revenues and, also, recognized
that current regulation of the market
system ‘‘has been remarkably successful
in promoting market competition in its
broader forms that are most important to
investors and listed companies.’’ 18
The proposed rule change would
protect investors and the public interest
because the proposed revised General
Notes would articulate rational,
objective procedures consistent with the
Existing Procedures and PNU cabinet
provisions, and would serve to reduce
any potential for confusion on how
18 See Securities Exchange Act Release No. 51808
(June 9, 2005), 70 FR 37496, 37499 (June 29, 2005).
VerDate Sep<11>2014
17:21 Feb 23, 2021
Jkt 253001
cabinets and power would be allocated
if a shortage in one or the other were to
arise in the future, and would thereby
make the Price List more transparent
and reduce any potential ambiguity.
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
Within 45 days of the date of
publication of this notice in the Federal
Register or up to 90 days (i) as the
Commission may designate if it finds
such longer period to be appropriate
and publishes its reasons for so finding
or (ii) as to which the self-regulatory
organization consents, the Commission
will:
(A) By order approve or disapprove
the proposed rule change, or
(B) institute proceedings to determine
whether the proposed rule change
should be disapproved.
amendments, all written statements
with respect to the proposed rule
change that are filed with the
Commission, and all written
communications relating to the
proposed rule change between the
Commission and any person, other than
those that may be withheld from the
public in accordance with the
provisions of 5 U.S.C. 552, will be
available for website viewing and
printing in the Commission’s Public
Reference Room, 100 F Street NE,
Washington, DC 20549 on official
business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the
filing also will be available for
inspection and copying at the principal
office of the Exchange. All comments
received will be posted without change.
Persons submitting comments are
cautioned that we do not redact or edit
personal identifying information from
comment submissions. You should
submit only information that you wish
to make available publicly. All
submissions should refer to File
Number SR–NYSE–2021–12 and should
be submitted on or before March 17,
2021.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.19
J. Matthew DeLesDernier,
Assistant Secretary.
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:
[FR Doc. 2021–03720 Filed 2–23–21; 8:45 am]
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–2021–12 on the subject line.
Self-Regulatory Organizations; NYSE
American LLC; Notice of Filing of
Proposed Rule Change To Establish
Procedures for the Allocation of Power
to Its Co-Located Users
Paper Comments
• Send paper comments in triplicate
to Securities and Exchange Commission,
100 F Street NE, Washington, DC
20549–1090.
All submissions should refer to File
Number SR–NYSE–2021–12. This file
number should be included on the
subject line if email is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
internet website (https://www.sec.gov/
rules/sro.shtml). Copies of the
submission, all subsequent
PO 00000
Frm 00134
Fmt 4703
Sfmt 4703
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–91155; File No. SR–
NYSEAMER–2021–08]
February 18, 2021.
Pursuant to Section 19(b)(1) 1 of the
Securities Exchange Act of 1934 (the
‘‘Act’’) 2 and Rule 19b–4 thereunder,3
notice is hereby given that, on February
4, 2021, NYSE American LLC (‘‘NYSE
American’’ or the ‘‘Exchange’’) 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
19 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
E:\FR\FM\24FEN1.SGM
24FEN1
Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Notices
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 for the allocation of power
to its co-located Users. The proposed
rule change is available on the
Exchange’s website at www.nyse.com, at
the principal office of the Exchange, and
at the Commission’s Public Reference
Room.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
self-regulatory organization included
statements concerning the purpose of,
and basis for, the proposed rule change
and discussed any comments it received
on the proposed rule change. The text
of those statements may be examined at
the places specified in Item IV below.
The Exchange has prepared summaries,
set forth in sections A, B, and C below,
of the most significant parts of such
statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule
Change
1. Purpose
khammond on DSKJM1Z7X2PROD with NOTICES
The Exchange proposes to establish
procedures for the allocation of power
to its co-located 4 Users.5
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). The Exchange is an indirect subsidiary of
Intercontinental Exchange, Inc. (‘‘ICE’’). Through its
ICE Data Services (‘‘IDS’’) business, ICE operates a
data center in Mahwah, New Jersey (the ‘‘data
center’’), from which the Exchange provides colocation services to Users.
5 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. 76009 (September 29, 2015), 80 FR
60213 (October 5, 2015) (SR–NYSEMKT–2015–67).
As specified in the NYSE American Equities Price
List and Fee Schedule and the NYSE American
Options Fee Schedule (together, the ‘‘Price List and
Fee Schedule’’), a User that incurs co-location fees
for a particular co-location service pursuant thereto
would not be subject to co-location fees for the
same co-location service charged by the Exchange’s
affiliates New York Stock Exchange LLC, NYSE
Arca, Inc., NYSE Chicago, Inc., and NYSE National,
Inc. (together, the ‘‘Affiliate SROs’’). Each Affiliate
SRO has submitted substantially the same proposed
rule change to propose the changes described
herein. See SR–NYSE–2021–12, SR–NYSEArca–
2021–11, SR–NYSECHX–2021–02, and SR–
NYSENAT–2021–03.
VerDate Sep<11>2014
17:21 Feb 23, 2021
Jkt 253001
Recently, the Exchange added
procedures for the allocation of cabinets
(‘‘Existing Procedures’’) 6 in colocation
should it become needed, which
procedures are not currently being used.
In addition, Users have had an
unprecedented demand for power,
largely driven by the demands caused
by volatile market conditions related to
the COVID–19 pandemic and higher
than usual trading volumes. The
Exchange is currently working to
expand the amount of power and
number of cabinets available in
colocation. To complement the
procedures for allocation of colocation
cabinets, the Exchange believes it would
be prudent to have procedures in place
for the allocation of power, should such
allocation be necessary. The Exchange
accordingly proposes to expand the
Existing Procedures to incorporate
procedures for the allocation of power
(‘‘Proposed Procedures’’).
Background
Users currently have two options for
purchasing power. First, a User may
purchase a new dedicated or partial
cabinet, which comes with power. The
User pays an initial fee and a monthly
fee based on the number of kilowatts
(‘‘kW’’) contracted for the cabinet. The
dedicated cabinets have a standard
power allocation of either 4 kW or 8 kW
(the ‘‘Standard Cabinet Power’’). Partial
cabinets are available in increments of
eight-rack units of space, and each
eight-rack unit may be allocated 1 or 2
kW. The Exchange allocates cabinets on
a first-come/first-serve basis.
Second, a User may request power
upgrades to dedicated cabinets in
addition to the Standard Cabinet
Power.7 Users may request that such
additional power (‘‘Additional Power’’)
be allocated to a cabinet when it is first
set up or later. A User with a dedicated
cabinet, for example, may develop its
infrastructure in a manner that allows it
to expand the hardware within that
cabinet by adding Additional Power.
Because it could add Additional Power
to its existing cabinet, the User would
not need an additional cabinet. Adding
Additional Power may entail
11351
overhauling wiring, circuitry and
hardware for the dedicated cabinet so
that it can handle the increased power.8
The Exchange also offers cabinets that
do not have power: Cabinets for which
power is not utilized (‘‘PNU cabinets’’).
PNU cabinets are reserved cabinet space
that are not active, and that can be
converted to a powered, dedicated
cabinet when the User requests it.9
Although PNU cabinets do not use
power, when the Exchange establishes a
PNU cabinet, it allocates unused power
capacity to it, depending on the User’s
requirements. The allocated power is
kept in reserve for the PNU cabinet, and,
upon the User’s request, the PNU
cabinet may be powered and used
promptly.
If additional power or cabinets are
needed, the Exchange may use
established measures to convert PNU
cabinets:
[i]f reserved cabinet space becomes needed
for use, the reserving User will have 30
business days to formally contract with the
Exchange for full payment for the reserved
cabinet space needed or the space will be
reassigned.10
The Exchange proposes to provide
additional detail regarding the
conversion of PNU cabinets in the
Proposed Procedures.
Proposed Procedures
Like the Existing Procedures, the
Proposed Procedures would be set forth
in General Notes 7 and 8. General Note
7 would be amended to provide that, if
the amount of power or cabinets
available fell below specified
thresholds, Users would be subject to
purchasing limits. General Note 7 would
also specify when the purchasing limits
would cease to apply. Consistent with
the Existing Procedures, the amended
General Note 7 would provide that if a
User requests a number of Standard
Cabinets and/or amount of Additional
Power that would cause the unallocated
power capacity to be below the
specified power and cabinet thresholds,
the purchasing limits would apply only
to the portion of the User’s order below
the relevant threshold.11
8 See
6 See
Securities Exchange Act Release No. 90732
(December 18, 2020), 85 FR 84443 (December 28,
2020) (SR–NYSE–2020–73, SR–NYSEAMER–2020–
66, SR–NYSEArca–2020–82, SR–NYSECHX–2020–
26, and SR–NYSENAT–2020–28) (Notice of Filings
of Amendment No. 1 and Order Granting Approval
of Proposed Rule Changes, Each as Modified by
Amendment No. 1, Amending the Exchanges’ CoLocation Services To Establish Procedures for the
Allocation of Cabinets to Co-Located Users if
Cabinet Inventory Falls Below Certain Thresholds).
7 See Securities Exchange Act Release No. 71131
(December 18, 2013), 78 FR 77750 (December 24,
2013) (SR–NYSEMKT–2013–103).
PO 00000
Frm 00135
Fmt 4703
Sfmt 4703
Id. at 77751.
Securities Exchange Act Release No. 70914
(November 21, 2013), 78 FR 71000 (November 27,
2013) (SR–NYSEMKT–2013–93).
10 Securities Exchange Act Release No. 62731
(August 16, 2010), 75 FR 51515 (August 20, 2010)
(SR–NYSEAmex–2010–80), at note 5. ‘‘Reserved
cabinet space’’ is a PNU cabinet. See 78 FR 71000,
71000–71001, supra note 9.
11 For example, if there was 365 kW unallocated
power capacity in co-location and a User requested
to purchase cabinets and Additional Power that
would, together, total 55 kW, the purchasing limits
in General Note 7 would not apply to the User’s
9 See
E:\FR\FM\24FEN1.SGM
Continued
24FEN1
11352
Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Notices
The Exchange proposes that, if either
the Cabinet Threshold or the Power
Threshold, or if both the Cabinet
Threshold and Power Threshold are
reached, all Users with PNU cabinets
would be required to either convert or
relinquish them, consistent with the
applicable provisions. Doing so would
allow all cabinets and power to be
available for active use. As a result, no
User would be subject to limitations on
its ability to purchase and use cabinets
or power at the same time that PNU
cabinets were dormant.
General Note 8 would be amended to
provide that, if the amount of power or
cabinets available fell to zero, Users
seeking to purchase power or cabinets
would be put on a waitlist. The waitlist
provisions for power would be
substantially similar to those for
cabinets in the Existing Procedures.12 In
both General Notes 7 and 8, the
Proposed Procedures would also state
how the Existing Procedures regarding
cabinets and the new procedures
regarding power would relate to each
other. In each case, the Proposed
Procedures would state what the
threshold amount of power and cabinets
would be to discontinue the limits,
which would allow the Exchange to
return to offering PNU cabinets. Finally,
in clarifying changes, the existing text of
General Notes 7 and 8 would be
amended to change ‘‘Purchasing Limits’’
to ‘‘Cabinet Limits’’ and ‘‘waitlist’’ to
‘‘Cabinet Waitlist’’ and to delete
redundant text.
Proposed Amendments to General Note
7
The Exchange proposes to amend
General Note 7 as follows (additions
italicized, deletions in [brackets]):
khammond on DSKJM1Z7X2PROD with NOTICES
7. Cabinet and Power Purchasing Limits. If
(i) unallocated cabinet inventory is at or
below 40 cabinets, whether or not such
cabinets are configured to be subdivided into
partial cabinets (‘‘Cabinet Threshold’’), or (ii)
the unallocated power capacity in copurchase of the first 15 kW, whether those kW were
in the form of cabinets or Additional Power. Once
the power threshold was reached, the combined
limits would be activated, limiting the User’s
purchase of additional cabinets and Additional
Power. In all, the User would be permitted to
purchase a total of 47 kW out of its original order
of 55 kW. The User could choose whether the 47
kW was in the form of cabinets, Additional Power,
or both.
12 Consistent with the Existing Procedures, the
Proposed Procedures would provide that, as
additional power and cabinets became available,
the Exchange would offer it to the User at the top
of the combined waitlist. Power may become
available if, for example, (a) a User vacates a
dedicated or partial cabinet or relinquishes
Additional Power or (b) IDS builds additional
capacity. Cabinets may become available if, for
example, a User vacates a dedicated or partial
cabinet.
VerDate Sep<11>2014
17:21 Feb 23, 2021
Jkt 253001
location is at or below 350 kW (the ‘‘Power
Threshold’’), the following limits on the
purchase of new cabinets (‘‘Purchasing
Limits’’) will apply:
a. Cabinet Limits. If only the Cabinet
Threshold is reached, the following measures
(the ‘‘Cabinet Limits’’) will apply:
• All Users with PNU cabinets will be
required to either convert [its]their PNU
cabinets into dedicated cabinets or relinquish
[its]their PNU cabinets [before being
permitted to purchase new cabinets]. The
Exchange will notify each User with a PNU
cabinet that the User has 30 business days to
decide whether to contract to convert the
PNU cabinet to a dedicated cabinet. If the
User does not contract to use the PNU
cabinet as a dedicated cabinet within such
time, the PNU cabinet will be relinquished.
• [Once the Cabinet Threshold is reached,
t]The Exchange will limit each User’s
purchase of new cabinets (dedicated and
partial) to a maximum of four dedicated
cabinets. The maximum may be comprised of
a mix of dedicated and partial cabinets, with
two partial cabinets counting as one
dedicated cabinet.
• If a User requests, in writing, a number
of cabinets that, if provided, would cause the
available cabinet inventory to be below 40
cabinets, the [Purchasing]Cabinet Limits will
only apply to the portion of the User’s order
below the Cabinet Threshold.
• A User will have to wait 30 days from
the date of its signed order form before
purchasing new cabinets again.
• If the Cabinet Threshold is reached, the
Exchange will cease offering or providing
new PNU cabinets to all Users and Users will
not be permitted to convert a currently used
dedicated cabinet to a PNU cabinet.
• When unallocated cabinet inventory is
more than 40 cabinets, the Exchange will
discontinue the [Purchasing]Cabinet Limits.
b. Combined Limits. If only the Power
Threshold is reached or both the Cabinet
Threshold and the Power Threshold are
reached, the following measures (the
‘‘Combined Limits’’) will apply:
• All Users with PNU cabinets will be
required to either convert their PNU cabinets
into dedicated cabinets or relinquish their
PNU cabinets. The Exchange will notify each
User with a PNU cabinet that the User has
30 business days to decide whether to
contract to convert the PNU cabinet to a
dedicated cabinet. If the User does not
contract to use the PNU cabinet as a
dedicated cabinet within such time, the PNU
cabinet will be relinquished.
• A User may purchase either or both of
the following, so long as the combined power
usage of such purchases is no more than a
maximum of 32 kW:
a. New cabinets (dedicated and partial),
subject to a maximum of four dedicated
cabinets with standard power allocations of
4 kW or 8 kW (‘‘Standard Cabinets’’). The
purchase may be comprised of a mix of
dedicated and partial cabinets, with two
partial cabinets counting as one dedicated
cabinet.
b. Additional power for new or existing
cabinets.
• If a User requests, in writing, a number
of Standard Cabinets and/or an amount of
PO 00000
Frm 00136
Fmt 4703
Sfmt 4703
additional power that, if provided, would
cause the unallocated power capacity to be
below the Power Threshold or Cabinet
Threshold, the Combined Limits would apply
only to the portion of the User’s order below
the relevant threshold.
• A User will have to wait 30 days from the
date of its signed order form before
purchasing new Standard Cabinets or
additional power again.
• If the Power Threshold or Cabinet
Threshold is reached, the Exchange will
cease offering or providing new PNU cabinets
to all Users and Users will not be permitted
to convert a currently used dedicated cabinet
to a PNU cabinet.
• When unallocated power capacity is
above the Power Threshold, the Exchange
will discontinue the Combined Limits. If at
that time the unallocated cabinet inventory is
40 or fewer cabinets, the Cabinet Limits
would enter into effect.
c. Applicability. If the Cabinet Threshold is
reached before the Power Threshold, the
Cabinet Limits will be in effect until the
Power Threshold is reached, after which the
Combined Limits will apply.
Proposed Amendments to General Note
8
The Exchange proposes to amend
General Note 8 as follows (additions
italicized, deletions in [brackets]):
8. Cabinet and Combined Waitlists.
a. Cabinet Waitlist. Unless a Combined
Waitlist is in effect, t[T]he Exchange will
create a cabinet waitlist (‘‘Cabinet Waitlist’’)
if the available cabinet inventory is zero, or
a User requests, in writing, a number of
cabinets that, if provided, would cause the
available inventory to be zero. The Exchange
will place Users seeking cabinets on a
Cabinet [w]Waitlist, as follows:
• Users with PNU cabinets will not be
required to either convert their PNU cabinets
into dedicated cabinets or relinquish their
PNU cabinets in accordance with the
measures set forth in General Note 7(a),
above. [placed on the waitlist if the User
could meet its new cabinet request by
converting its PNU cabinets to dedicated
cabinets. A User will only be placed on the
waitlist for the portion of its new cabinet
request that exceeds its existing PNU
cabinets, subject to the Purchasing
Limitations.]
• A User will be placed on the Cabinet
[w]Waitlist based on the date its signed order
is received. A User may only have one order
for new cabinets on the Cabinet [w]Waitlist
at a time, and the order is subject to the
[Purchasing]Cabinet Limits. If a User changes
the size of its order while it is on the Cabinet
Waitlist, it will maintain its place on the
Cabinet Waitlist, and will remain subject to
the Cabinet Limits.
• As cabinets become available, the
Exchange will offer them to the User at the
top of the Cabinet [w]Waitlist. If the User’s
order is completed, it will be removed from
the Cabinet [w]Waitlist. If the User’s order is
not completed, it will remain at the top of the
Cabinet [w]Waitlist.
• A User will be removed from the Cabinet
[w]Waitlist (a) at the User’s request or (b) if
E:\FR\FM\24FEN1.SGM
24FEN1
khammond on DSKJM1Z7X2PROD with NOTICES
Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Notices
the User turns down an offer of a cabinet of
the same size it requested in its order. If the
Exchange offers the User a cabinet of a
different size than the User requested in its
order, the User may turn down the offer and
remain at the top of the Cabinet [w]Waitlist
until its order is completed.
• A User that is removed from the Cabinet
[w]Waitlist but subsequently submits a new
written order for cabinets will be added back
to the bottom of the Cabinet [w]Waitlist.
• When unallocated cabinet inventory is
more than 10 cabinets, the Exchange will
cease use of the Cabinet [w]Waitlist.
b. Combined Waitlist. The Exchange would
create a power and cabinet waitlist
(‘‘Combined Waitlist’’) if the unallocated
power capacity is zero, or if a User requests,
in writing, an amount of power (whether
power allocated to a Standard Cabinet or
additional power) that, if provided, would
cause the unallocated power capacity to be
below zero. The Exchange would place Users
seeking cabinets or power on the Combined
Waitlist, as follows:
• All Users with PNU cabinets will be
required to either convert their PNU cabinets
into dedicated cabinets or relinquish their
PNU cabinets in accordance with the
measures set forth in General Note 7(b),
above.
• If a Cabinet Waitlist exists when the
requirements to create a Combined Waitlist
are met, the Cabinet Waitlist will
automatically convert to the Combined
Waitlist. If a Combined Waitlist exists when
the requirements to create a Cabinet Waitlist
are met, no new waitlist will be created, and
the Combined Waitlist will continue in effect.
• A User will be placed on the Combined
Waitlist based on the date its signed order for
cabinets and/or additional power is received.
A User may only have one order for new
cabinets and/or additional power on the
Combined Waitlist at a time, and the order
would be subject to the Combined Limits. If
a User changes the size of its order while it
is on the Combined Waitlist, it will maintain
its place on the Combined Waitlist, and will
remain subject to the Combined Limits.
• As additional power and/or cabinets
become available, the Exchange will offer
them to the User at the top of the Combined
Waitlist. If the User’s order is completed, the
order will be removed from the Combined
Waitlist. If the User’s order is not completed,
it will remain at the top of the Combined
Waitlist.
• A User will be removed from the
Combined Waitlist (a) at the User’s request;
(b) if the User turns down an offer that is the
same as its order (e.g., the offer includes
cabinets of the same size and/or the amount
of additional power that the User requested
in its order). If the Exchange offers the User
an offer that is different than its order, the
User may turn down the offer and remain at
the top of the Combined Waitlist until its
order is completed.
• A User that is removed from the
Combined Waitlist but subsequently submits
a new written order for cabinets and/or
additional power will be added back to the
bottom of the waitlist.
• If the Combined Waitlist is in effect,
when unallocated power capacity in co-
VerDate Sep<11>2014
17:21 Feb 23, 2021
Jkt 253001
11353
location is at 100 kW, the Exchange will
cease use of the waitlist. If at that time the
unallocated cabinet inventory is 10 or fewer
cabinets, the Cabinet Limits would enter into
effect.
that requested new cabinets or
Additional Power.
The Exchange believes that
integrating the procedures for the
allocation of power with the Existing
The proposed change would apply the Procedures would be reasonable,
same way to all types and sizes of
because cabinets are provided with
market participants. As is currently the
power. Having both power and cabinets
case, the purchase of any colocation
covered by the Proposed Procedures
service is completely voluntary and the
would ensure that the procedures for all
Price List and Fee Schedule are applied relevant services are consistent and
uniformly to all Users. The proposed
coordinated. Having the Proposed
change is not otherwise intended to
Procedures state what would occur if
address any other issues relating to cothe Cabinet Threshold and Power
location services and/or related fees,
Threshold are reached at different times,
and the Exchange is not aware of any
and how the Cabinet Waitlist and
problems that Users would have in
Combined Waitlist interrelate, is
complying with the proposed change.
reasonable for the same reason.
The Exchange believes that following
2. Statutory Basis
the Existing Procedures’ two-tier
The Exchange believes that the
structure of establishing, first, a
proposed rule change is consistent with purchasing limitation on order size, and
Section 6(b) of the Act,13 in general, and second, a waitlist, would be a
furthers the objectives of Sections
reasonable method to respond to
6(b)(4) and (5) of the Act,14 in particular, increasing demand for power and
because it provides for the equitable
cabinets in the future. The Exchange
allocation of reasonable dues, fees, and
notes that the Existing Procedures are
other charges among its members,
consistent with the Nasdaq procedures
issuers and other persons using its
for allocating cabinets if its cabinet
facilities and does not unfairly
inventory shrinks to zero.15 The
discriminate between customers,
Exchange believes that it is reasonable
issuers, brokers or dealers. In addition,
to amend the Existing Procedures to
it is designed to foster cooperation and
clarify what would occur if a User
coordination with persons engaged in
changes the size of its order while it is
regulating, clearing, settling, processing on the Cabinet Waitlist.
information with respect to, and
The Exchange believes that the
facilitating transactions in securities, to
proposed Power Threshold is reasonable
remove impediments to, and perfect the and equitable. Based on experience, the
mechanisms of, a free and open market
Exchange believes that the Power
and a national market system and, in
Threshold of 350 kW is reasonable and
general, to protect investors and the
appropriate because it is sufficiently
public interest and because it is not
low that it would not be triggered
designed to permit unfair
repeatedly, yet it offers a reasonable
discrimination between customers,
buffer during which the Combined
issuers, brokers, or dealers.
Limits would apply before the
Combined Waitlist would become
The Proposed Rule Change Is
effective.
Reasonable and Equitable
The Exchange believes that the
The Exchange believes that the
proposed Combined Limits are
proposed rule change is reasonable and
reasonable and equitable. Based on its
equitable for the following reasons.
experience with co-location and
The Exchange believes that User
purchasing trends over the last few
demand for power will continue. The
years, the Exchange believes that in
Exchange is currently working to
most cases the amount of power that a
expand the amount of power and
User would be allowed to buy under the
number of cabinets available in
proposed Combined Limits, whether in
colocation. Nevertheless, the Exchange
the form of cabinets or Additional
believes that it would be reasonable for
Power, would be sufficient for a User’s
it to put in place the Proposed
needs while leaving a margin for
Procedures to establish the allocation of potential growth.
power and cabinets on an equitable
Further, the Exchange believes that,
basis, consistent with the Established
by establishing a waitlist on the basis of
Procedures. The Proposed Procedures
the date it receives signed orders,
would establish a rational, objective
limiting the size and number of orders
procedure that would be applied
a User may have on the waitlist at any
uniformly by the Exchange to all Users
13 15
U.S.C. 78f(b).
14 15 U.S.C. 78f(b)(4) and (5).
PO 00000
Frm 00137
Fmt 4703
Sfmt 4703
15 See Securities Exchange Act Release No. 62397
(June 28, 2010), 75 FR 38860 (July 6, 2010) (SR–
NASDAQ–2010–019).
E:\FR\FM\24FEN1.SGM
24FEN1
khammond on DSKJM1Z7X2PROD with NOTICES
11354
Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Notices
one time, stating what happens if a User
changes its order while on the waitlist,
and removing a User from the waitlist
if it turns down an offer that is the same
as what it requested, the Combined
Waitlist is largely consistent with the
Existing Procedures and reasonably
designed to prevent Users from utilizing
the waitlist as a method to obtain a
greater portion of the power and
cabinets available, thereby facilitating a
more equitable distribution. Similarly,
the Exchange believes that by requiring
a 30-day delay before a User subject to
the Combined Limits could purchase
Standard Cabinets or Additional Power
again, the Proposed Procedure is
reasonably designed to prevent a User
from obtaining a greater portion of the
power and cabinets available.
The Exchange believes that the
proposed change is reasonable and
equitable because the Exchange would
only place limits on Users’ ability to
purchase Standard Cabinets or
Additional Power if either or both the
Power Threshold and Cabinet Threshold
are reached. Similarly, the Exchange
believes that the proposed change is
reasonable and equitable because the
Combined Waitlist would only be
created if unallocated power capacity in
co-location is zero, or if a User requests,
in writing, an amount of power
(whether power allocated to a Standard
Cabinet or Additional Power) that, if
provided, would cause the unallocated
power capacity to be below zero, and
because there would be an established
threshold for cessation of the Combined
Waitlist.
The Exchange believes that it would
be reasonable and equitable to require
Users with PNU cabinets to either
convert their PNU cabinets into
dedicated cabinets or relinquish them if
either or both the Cabinet Threshold
and Power Threshold are reached.
Doing so would make the power
reserved for PNU cabinets and the
cabinets themselves available to meet
User demand for power and cabinets. As
a result, no User would be subject to
limitations on its ability to purchase and
use power or cabinets at the same time
that PNU cabinets were dormant. The
Exchange believes that the measure is
therefore reasonably designed to prevent
a User from reserving, but not using,
power or cabinets at a time when other
Users are subject to limitations,
facilitating a more equitable
distribution.
The Proposed Procedures would
provide additional specificity to the
existing PNU cabinet provision
permitting conversion of PNU cabinets,
by stating what the relevant thresholds
would be, when the Exchange would
VerDate Sep<11>2014
17:21 Feb 23, 2021
Jkt 253001
require Users to decide whether to
convert their PNU cabinets, and when
PNU cabinets would be offered again,
thereby increasing transparency and
adding clarity.
The Exchange believes that the
proposed change would be a reasonable
method for the Exchange to
accommodate demand for power and
cabinets on an equitable basis, while
allowing all Users that currently have a
PNU cabinet to have a choice between
converting their PNU cabinet to a
dedicated cabinet or relinquishing it.
The Exchange notes that Nasdaq’s colocation customers that have a ‘‘Cabinet
Proximity Option’’ have a similar choice
if Nasdaq determines that the reserved
data center space is needed for use.16
Finally, the Exchange believes that it
would be fair and equitable to require
all Users with PNU cabinets to be
subject to the same measures if the
Cabinet Threshold or Power Threshold
were met.
The Proposed Rule Change Would
Protect Investors and the Public Interest
The Exchange believes that the
proposed rule change would perfect the
mechanisms of a free and open market
and a national market system and, in
general, protect investors and the public
interest for the following reasons.
The Exchange believes that User
demand for cabinets and power will
continue. In this context, the proposed
rule change would allow the Exchange
to protect investors and the public
interest, first, by setting limits on Users’
ability to purchase power, and second,
by using a waitlist to allocate any
unallocated cabinets and power on a
first come-first served rolling basis.
Based on experience, the Exchange
believes that the Power Threshold is
sufficiently low that it would not be
triggered repeatedly, which would
protect investors and the public interest.
Similarly, based on its experience with
co-location and purchasing trends over
the last few years, the Exchange believes
that in most cases the amount of power
that a User would be allowed to buy
under the proposed Combined Limits,
whether in the form of cabinets or
Additional Power, would be sufficient
for a User’s needs while leaving a
margin for potential growth, which
would protect investors and the public
interest.
In addition, the Proposed Procedures
would protect investors and the public
interest in that they are designed to
16 Co-location customers may either contract with
Nasdaq for full payment or have the cabinet
reassigned. Securities Exchange Act Release No.
62354 (June 22, 2010), 75 FR 38860 (July 6, 2010)
(SR–Nasdaq–2010–019).
PO 00000
Frm 00138
Fmt 4703
Sfmt 4703
prevent Users from utilizing the
Combined Limit and waitlist procedures
to obtain a greater portion of the power
and cabinets available, thereby
facilitating a more equitable
distribution.
The Exchange believes that it would
protect investors and the public interest
to require Users with PNU cabinets to
either convert their PNU cabinets into
dedicated cabinets or relinquish them if
either or both the Cabinet Threshold
and Power Threshold are reached.
Doing so would mean that no User
would be subject to limitations on its
ability to purchase and use power or
cabinets at the same time that PNU
cabinets were dormant. The Exchange
believes that the measure is therefore
reasonably designed to prevent a User
from reserving but not using power or
cabinets at a time when other Users are
subject to limitations.
The proposed rule change would
protect investors and the public interest
because the proposed revised General
Notes would articulate rational,
objective procedures consistent with the
Existing Procedures and PNU cabinet
provisions, and would serve to reduce
any potential for confusion on how
cabinets and power would be allocated
if a shortage in one or the other were to
arise in the future, and would thereby
make the Price List and Fee Schedule
more transparent and reduce any
potential ambiguity.
The Proposed Change Is Not Unfairly
Discriminatory
The Exchange believes that the
proposed change is not unfairly
discriminatory for the following
reasons.
The proposed change would apply
equally to all types and sizes of market
participants. If the Proposed Procedures
were in place, all Users would be able
to identify the permitted cabinet and
power options and the procedures that
would apply to them in the event that
unallocated cabinet or power supply
runs low in the future. All Users with
PNU cabinets would be subject to the
same measures if the Cabinet Threshold
or Power Threshold were met. The
Proposed Procedures would assist the
Exchange in accommodating demand
for co-location services, and power and
cabinets in particular, on an equitable
basis.
For the reasons above, the proposed
changes do 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.
E:\FR\FM\24FEN1.SGM
24FEN1
Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Notices
For these reasons, the Exchange
believes that the proposal is consistent
with the Act.
khammond on DSKJM1Z7X2PROD with NOTICES
B. Self-Regulatory Organization’s
Statement on Burden on Competition
In accordance with Section 6(b)(8) of
the Act,17 the Exchange believes that the
proposed rule change will not impose
any burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Act.
Intramarket Competition
The Exchange does not believe that
the proposed change would place any
burden on intramarket competition that
is not necessary or appropriate. The
proposed change would not apply
differently to distinct types or sizes of
market participants. Rather, it would
apply to all Users equally.
The Exchange believes that, if
triggered, the imposition of the
Combined Limits or Combined Waitlist
would not impose a burden on a User’s
ability to compete that is not necessary
or appropriate. The Exchange believes
that User demand for power will
continue in the future, and the
Exchange is presently working to
expand the amount of power and
number of cabinets available in
colocation. In this context, the Exchange
believes that it would be reasonable for
it to put in place the Proposed
Procedures to expand on the Existing
Procedures and establish a method for
allocating not just cabinets but also
power on an equitable basis.
The Exchange would only follow the
Proposed Procedures and place limits
on Users’ ability to purchase new power
and cabinets if either or both the
proposed Power Threshold and existing
Cabinet Threshold were met, as
specified in the proposed General Notes.
Similarly, the Exchange would only
create the Proposed Waitlist if the
unallocated power capacity is zero, or if
a User requests, in writing, an amount
of power that, if provided, would cause
the unallocated power capacity to be
below zero. Based on its experience
with co-location and purchasing trends
over the last few years, the Exchange
believes that in most cases the amount
of power that a User would be allowed
to buy under the proposed Combined
Limits, whether in the form of cabinets
or Additional Power, would be
sufficient for a User’s needs while
leaving a margin for potential growth.
The Exchange believes that the
proposed revised General Notes would
articulate rational, objective procedures
consistent with the Existing Procedures
17 15
U.S.C. 78f(b)(8).
VerDate Sep<11>2014
17:21 Feb 23, 2021
Jkt 253001
and PNU cabinet provisions, and would
serve to reduce any potential for
confusion on how power and cabinets
would be allocated if a shortage in one
or the other were to arise in the future,
and would thereby make the Price List
and Fee Schedule more transparent and
reduce any potential ambiguity.
The Exchange believes that it would
not impose a burden on a User’s ability
to compete that is not necessary or
appropriate to require Users with PNU
cabinets to either convert or relinquish
their PNU cabinets if either or both the
Cabinet Threshold and Power Threshold
are reached. Doing so would make the
power reserved for PNU cabinets and
the cabinets themselves available to
meet User demand for power and
cabinets. As a result, no User would be
subject to limitations on its ability to
purchase and use power or cabinets at
the same time that PNU cabinets were
dormant. A User does not require a PNU
cabinet to trade on the Exchange, and
whether or not a User has a PNU cabinet
has no effect on such User’s orders
going to, or trade data coming from, the
Exchange, or the User’s ability to utilize
other co-location services. Rather, the
proposed change would assist the
Exchange in accommodating demand
for co-location services on an equitable
basis.
Use of any co-location service is
completely voluntary, and each market
participant is able to determine whether
to use co-location services based on the
requirements of its business operations.
Intermarket Competition
The Exchange does not believe that
the proposed change would impose any
burden on intermarket competition that
is not necessary or appropriate.
The Exchange operates in a highly
competitive market in which exchanges
and other vendors (i.e., Hosting Users)
offer co-location services as a means to
facilitate the trading and other market
activities of those market participants
who believe that co-location enhances
the efficiency of their operations.
Accordingly, fees charged for colocation services are constrained by the
active competition for the order flow of,
and other business from, such market
participants.
The Commission has repeatedly
expressed its preference for competition
over regulatory intervention in
determining prices, products, and
services in the securities markets.
Specifically, in Regulation NMS, the
Commission highlighted the importance
of market forces in determining prices
and SRO revenues and, also, recognized
that current regulation of the market
system ‘‘has been remarkably successful
PO 00000
Frm 00139
Fmt 4703
Sfmt 4703
11355
in promoting market competition in its
broader forms that are most important to
investors and listed companies.’’ 18
The proposed rule change would
protect investors and the public interest
because the proposed revised General
Notes would articulate rational,
objective procedures consistent with the
Existing Procedures and PNU cabinet
provisions, and would serve to reduce
any potential for confusion on how
cabinets and power would be allocated
if a shortage in one or the other were to
arise in the future, and would thereby
make the Price List and Fee Schedule
more transparent and reduce any
potential ambiguity.
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
Within 45 days of the date of
publication of this notice in the Federal
Register or up to 90 days (i) as the
Commission may designate if it finds
such longer period to be appropriate
and publishes its reasons for so finding
or (ii) as to which the self-regulatory
organization consents, the Commission
will:
(A) By order approve or disapprove
the proposed rule change, or
(B) institute proceedings to determine
whether the proposed rule change
should be 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–
NYSEAMER–2021–08 on the subject
line.
18 See Securities Exchange Act Release No. 51808
(June 9, 2005), 70 FR 37496, 37499 (June 29, 2005).
E:\FR\FM\24FEN1.SGM
24FEN1
11356
Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Notices
Paper Comments
• Send paper comments in triplicate
to: Securities and Exchange
Commission, 100 F Street NE,
Washington, DC 20549–1090.
All submissions should refer to File
Number SR–NYSEAMER–2021–08. This
file number should be included on the
subject line if email is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
internet website (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 website viewing and
printing in the Commission’s Public
Reference Room, 100 F Street NE,
Washington, DC 20549 on official
business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the
filing also will be available for
inspection and copying at the principal
office of the Exchange. All comments
received will be posted without change.
Persons submitting comments are
cautioned that we do not redact or edit
personal identifying information from
comment submissions. You should
submit only information that you wish
to make available publicly. All
submissions should refer to File
Number SR–NYSEAMER–2021–08 and
should be submitted on or before March
17, 2021.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.19
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021–03719 Filed 2–23–21; 8:45 am]
khammond on DSKJM1Z7X2PROD with NOTICES
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–91156; File No. SR–
NYSEARCA–2021–11]
Self-Regulatory Organizations; NYSE
Arca, Inc.; Notice of Filing of Proposed
Rule Change To Establish Procedures
for the Allocation of Power to Its CoLocated Users
February 18, 2021.
Pursuant to Section 19(b)(1) 1 of the
Securities Exchange Act of 1934 (the
‘‘Act’’) 2 and Rule 19b–4 thereunder,3
notice is hereby given that, on February
4, 2021, NYSE Arca, Inc. (‘‘NYSE Arca’’
or the ‘‘Exchange’’) 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.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to establish
procedures for the allocation of power
to its co-located Users. The proposed
change is available on the Exchange’s
website at www.nyse.com, at the
principal office of the Exchange, and at
the Commission’s Public Reference
Room.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
self-regulatory organization included
statements concerning the purpose of,
and basis for, the proposed rule change
and discussed any comments it received
on the proposed rule change. The text
of those statements may be examined at
the places specified in Item IV below.
The Exchange has prepared summaries,
set forth in sections A, B, and C below,
of the most significant parts of such
statements.
1 15
U.S.C. 78s(b)(1).
U.S.C. 78a.
3 17 CFR 240.19b–4.
2 15
19 17
CFR 200.30–3(a)(12).
VerDate Sep<11>2014
17:21 Feb 23, 2021
Jkt 253001
PO 00000
Frm 00140
Fmt 4703
Sfmt 4703
A. Self-Regulatory Organization’s
Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule
Change
1. Purpose
The Exchange proposes to establish
procedures for the allocation of power
to its co-located 4 Users.5
Recently, the Exchange added
procedures for the allocation of cabinets
(‘‘Existing Procedures’’) 6 in colocation
should it become needed, which
procedures are not currently being used.
In addition, Users have had an
unprecedented demand for power,
largely driven by the demands caused
by volatile market conditions related to
the COVID–19 pandemic and higher
than usual trading volumes. The
Exchange is currently working to
expand the amount of power and
number of cabinets available in
colocation. To complement the
procedures for allocation of colocation
cabinets, the Exchange believes it would
be prudent to have procedures in place
for the allocation of power, should such
allocation be necessary. The Exchange
accordingly proposes to expand the
Existing Procedures to incorporate
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. 63275 (November 8, 2010), 75 FR
70048 (November 16, 2010) (SR–NYSEArca–2010–
100). The Exchange is an indirect subsidiary of
Intercontinental Exchange, Inc. (‘‘ICE’’). Through its
ICE Data Services (‘‘IDS’’) business, ICE operates a
data center in Mahwah, New Jersey (the ‘‘data
center’’), from which the Exchange provides colocation services to Users.
5 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. 76010 (September 29, 2015), 80 FR
60197 (October 5, 2015) (SR–NYSEArca–2015–82).
As specified in the NYSE Arca Options Fees and
Charges and the NYSE Arca Equities Fees and
Charges (together, the ‘‘Fee Schedules’’), a User that
incurs co-location fees for a particular co-location
service pursuant thereto would not be subject to colocation fees for the same co-location service
charged by the Exchange’s affiliates New York
Stock Exchange LLC, NYSE American LLC, NYSE
Chicago, Inc., and NYSE National, Inc. (together,
the ‘‘Affiliate SROs’’). Each Affiliate SRO has
submitted substantially the same proposed rule
change to propose the changes described herein.
See SR–NYSE–2021–12, SR–NYSEAMER–2021–08,
SR–NYSECHX–2021–02, and SR–NYSENAT–2021–
03.
6 See Securities Exchange Act Release No. 90732
(December 18, 2020), 85 FR 84443 (December 28,
2020) (SR–NYSE–2020–73, SR–NYSEAMER–2020–
66, SR–NYSEArca–2020–82, SR–NYSECHX–2020–
26, and SR–NYSENAT–2020–28) (Notice of Filings
of Amendment No. 1 and Order Granting Approval
of Proposed Rule Changes, Each as Modified by
Amendment No. 1, Amending the Exchanges’ CoLocation Services To Establish Procedures for the
Allocation of Cabinets to Co-Located Users if
Cabinet Inventory Falls Below Certain Thresholds).
E:\FR\FM\24FEN1.SGM
24FEN1
]]>Agencies
[Federal Register Volume 86, Number 35 (Wednesday, February 24, 2021)]
[Notices]
[Pages 11350-11356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03719]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-91155; File No. SR-NYSEAMER-2021-08]
Self-Regulatory Organizations; NYSE American LLC; Notice of
Filing of Proposed Rule Change To Establish Procedures for the
Allocation of Power to Its Co-Located Users
February 18, 2021.
Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on February 4, 2021, NYSE American LLC (``NYSE American''
or the ``Exchange'') 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
[[Page 11351]]
solicit comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 15 U.S.C. 78a.
\3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to establish procedures for the allocation of
power to its co-located Users. The proposed rule change is available on
the Exchange's website at www.nyse.com, at the principal office of the
Exchange, and at the Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange proposes to establish procedures for the allocation of
power to its co-located \4\ Users.\5\
---------------------------------------------------------------------------
\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). The Exchange is an indirect subsidiary of
Intercontinental Exchange, Inc. (``ICE''). Through its ICE Data
Services (``IDS'') business, ICE operates a data center in Mahwah,
New Jersey (the ``data center''), from which the Exchange provides
co-location services to Users.
\5\ 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. 76009 (September 29, 2015), 80 FR 60213
(October 5, 2015) (SR-NYSEMKT-2015-67). As specified in the NYSE
American Equities Price List and Fee Schedule and the NYSE American
Options Fee Schedule (together, the ``Price List and Fee
Schedule''), a User that incurs co-location fees for a particular
co-location service pursuant thereto would not be subject to co-
location fees for the same co-location service charged by the
Exchange's affiliates New York Stock Exchange LLC, NYSE Arca, Inc.,
NYSE Chicago, Inc., and NYSE National, Inc. (together, the
``Affiliate SROs''). Each Affiliate SRO has submitted substantially
the same proposed rule change to propose the changes described
herein. See SR-NYSE-2021-12, SR-NYSEArca-2021-11, SR-NYSECHX-2021-
02, and SR-NYSENAT-2021-03.
---------------------------------------------------------------------------
Recently, the Exchange added procedures for the allocation of
cabinets (``Existing Procedures'') \6\ in colocation should it become
needed, which procedures are not currently being used. In addition,
Users have had an unprecedented demand for power, largely driven by the
demands caused by volatile market conditions related to the COVID-19
pandemic and higher than usual trading volumes. The Exchange is
currently working to expand the amount of power and number of cabinets
available in colocation. To complement the procedures for allocation of
colocation cabinets, the Exchange believes it would be prudent to have
procedures in place for the allocation of power, should such allocation
be necessary. The Exchange accordingly proposes to expand the Existing
Procedures to incorporate procedures for the allocation of power
(``Proposed Procedures'').
---------------------------------------------------------------------------
\6\ See Securities Exchange Act Release No. 90732 (December 18,
2020), 85 FR 84443 (December 28, 2020) (SR-NYSE-2020-73, SR-
NYSEAMER-2020-66, SR-NYSEArca-2020-82, SR-NYSECHX-2020-26, and SR-
NYSENAT-2020-28) (Notice of Filings of Amendment No. 1 and Order
Granting Approval of Proposed Rule Changes, Each as Modified by
Amendment No. 1, Amending the Exchanges' Co-Location Services To
Establish Procedures for the Allocation of Cabinets to Co-Located
Users if Cabinet Inventory Falls Below Certain Thresholds).
---------------------------------------------------------------------------
Background
Users currently have two options for purchasing power. First, a
User may purchase a new dedicated or partial cabinet, which comes with
power. The User pays an initial fee and a monthly fee based on the
number of kilowatts (``kW'') contracted for the cabinet. The dedicated
cabinets have a standard power allocation of either 4 kW or 8 kW (the
``Standard Cabinet Power''). Partial cabinets are available in
increments of eight-rack units of space, and each eight-rack unit may
be allocated 1 or 2 kW. The Exchange allocates cabinets on a first-
come/first-serve basis.
Second, a User may request power upgrades to dedicated cabinets in
addition to the Standard Cabinet Power.\7\ Users may request that such
additional power (``Additional Power'') be allocated to a cabinet when
it is first set up or later. A User with a dedicated cabinet, for
example, may develop its infrastructure in a manner that allows it to
expand the hardware within that cabinet by adding Additional Power.
Because it could add Additional Power to its existing cabinet, the User
would not need an additional cabinet. Adding Additional Power may
entail overhauling wiring, circuitry and hardware for the dedicated
cabinet so that it can handle the increased power.\8\
---------------------------------------------------------------------------
\7\ See Securities Exchange Act Release No. 71131 (December 18,
2013), 78 FR 77750 (December 24, 2013) (SR-NYSEMKT-2013-103).
\8\ See Id. at 77751.
---------------------------------------------------------------------------
The Exchange also offers cabinets that do not have power: Cabinets
for which power is not utilized (``PNU cabinets''). PNU cabinets are
reserved cabinet space that are not active, and that can be converted
to a powered, dedicated cabinet when the User requests it.\9\ Although
PNU cabinets do not use power, when the Exchange establishes a PNU
cabinet, it allocates unused power capacity to it, depending on the
User's requirements. The allocated power is kept in reserve for the PNU
cabinet, and, upon the User's request, the PNU cabinet may be powered
and used promptly.
---------------------------------------------------------------------------
\9\ See Securities Exchange Act Release No. 70914 (November 21,
2013), 78 FR 71000 (November 27, 2013) (SR-NYSEMKT-2013-93).
---------------------------------------------------------------------------
If additional power or cabinets are needed, the Exchange may use
established measures to convert PNU cabinets:
[i]f reserved cabinet space becomes needed for use, the
reserving User will have 30 business days to formally contract with
the Exchange for full payment for the reserved cabinet space needed
or the space will be reassigned.\10\
---------------------------------------------------------------------------
\10\ Securities Exchange Act Release No. 62731 (August 16,
2010), 75 FR 51515 (August 20, 2010) (SR-NYSEAmex-2010-80), at note
5. ``Reserved cabinet space'' is a PNU cabinet. See 78 FR 71000,
71000-71001, supra note 9.
The Exchange proposes to provide additional detail regarding the
conversion of PNU cabinets in the Proposed Procedures.
Proposed Procedures
Like the Existing Procedures, the Proposed Procedures would be set
forth in General Notes 7 and 8. General Note 7 would be amended to
provide that, if the amount of power or cabinets available fell below
specified thresholds, Users would be subject to purchasing limits.
General Note 7 would also specify when the purchasing limits would
cease to apply. Consistent with the Existing Procedures, the amended
General Note 7 would provide that if a User requests a number of
Standard Cabinets and/or amount of Additional Power that would cause
the unallocated power capacity to be below the specified power and
cabinet thresholds, the purchasing limits would apply only to the
portion of the User's order below the relevant threshold.\11\
---------------------------------------------------------------------------
\11\ For example, if there was 365 kW unallocated power capacity
in co-location and a User requested to purchase cabinets and
Additional Power that would, together, total 55 kW, the purchasing
limits in General Note 7 would not apply to the User's purchase of
the first 15 kW, whether those kW were in the form of cabinets or
Additional Power. Once the power threshold was reached, the combined
limits would be activated, limiting the User's purchase of
additional cabinets and Additional Power. In all, the User would be
permitted to purchase a total of 47 kW out of its original order of
55 kW. The User could choose whether the 47 kW was in the form of
cabinets, Additional Power, or both.
---------------------------------------------------------------------------
[[Page 11352]]
The Exchange proposes that, if either the Cabinet Threshold or the
Power Threshold, or if both the Cabinet Threshold and Power Threshold
are reached, all Users with PNU cabinets would be required to either
convert or relinquish them, consistent with the applicable provisions.
Doing so would allow all cabinets and power to be available for active
use. As a result, no User would be subject to limitations on its
ability to purchase and use cabinets or power at the same time that PNU
cabinets were dormant.
General Note 8 would be amended to provide that, if the amount of
power or cabinets available fell to zero, Users seeking to purchase
power or cabinets would be put on a waitlist. The waitlist provisions
for power would be substantially similar to those for cabinets in the
Existing Procedures.\12\ In both General Notes 7 and 8, the Proposed
Procedures would also state how the Existing Procedures regarding
cabinets and the new procedures regarding power would relate to each
other. In each case, the Proposed Procedures would state what the
threshold amount of power and cabinets would be to discontinue the
limits, which would allow the Exchange to return to offering PNU
cabinets. Finally, in clarifying changes, the existing text of General
Notes 7 and 8 would be amended to change ``Purchasing Limits'' to
``Cabinet Limits'' and ``waitlist'' to ``Cabinet Waitlist'' and to
delete redundant text.
---------------------------------------------------------------------------
\12\ Consistent with the Existing Procedures, the Proposed
Procedures would provide that, as additional power and cabinets
became available, the Exchange would offer it to the User at the top
of the combined waitlist. Power may become available if, for
example, (a) a User vacates a dedicated or partial cabinet or
relinquishes Additional Power or (b) IDS builds additional capacity.
Cabinets may become available if, for example, a User vacates a
dedicated or partial cabinet.
---------------------------------------------------------------------------
Proposed Amendments to General Note 7
The Exchange proposes to amend General Note 7 as follows (additions
italicized, deletions in [brackets]):
7. Cabinet and Power Purchasing Limits. If (i) unallocated
cabinet inventory is at or below 40 cabinets, whether or not such
cabinets are configured to be subdivided into partial cabinets
(``Cabinet Threshold''), or (ii) the unallocated power capacity in
co-location is at or below 350 kW (the ``Power Threshold''), the
following limits on the purchase of new cabinets (``Purchasing
Limits'') will apply:
a. Cabinet Limits. If only the Cabinet Threshold is reached, the
following measures (the ``Cabinet Limits'') will apply:
All Users with PNU cabinets will be required to either
convert [its]their PNU cabinets into dedicated cabinets or
relinquish [its]their PNU cabinets [before being permitted to
purchase new cabinets]. The Exchange will notify each User with a
PNU cabinet that the User has 30 business days to decide whether to
contract to convert the PNU cabinet to a dedicated cabinet. If the
User does not contract to use the PNU cabinet as a dedicated cabinet
within such time, the PNU cabinet will be relinquished.
[Once the Cabinet Threshold is reached, t]The Exchange
will limit each User's purchase of new cabinets (dedicated and
partial) to a maximum of four dedicated cabinets. The maximum may be
comprised of a mix of dedicated and partial cabinets, with two
partial cabinets counting as one dedicated cabinet.
If a User requests, in writing, a number of cabinets
that, if provided, would cause the available cabinet inventory to be
below 40 cabinets, the [Purchasing]Cabinet Limits will only apply to
the portion of the User's order below the Cabinet Threshold.
A User will have to wait 30 days from the date of its
signed order form before purchasing new cabinets again.
If the Cabinet Threshold is reached, the Exchange will
cease offering or providing new PNU cabinets to all Users and Users
will not be permitted to convert a currently used dedicated cabinet
to a PNU cabinet.
When unallocated cabinet inventory is more than 40
cabinets, the Exchange will discontinue the [Purchasing]Cabinet
Limits.
b. Combined Limits. If only the Power Threshold is reached or
both the Cabinet Threshold and the Power Threshold are reached, the
following measures (the ``Combined Limits'') will apply:
All Users with PNU cabinets will be required to either
convert their PNU cabinets into dedicated cabinets or relinquish
their PNU cabinets. The Exchange will notify each User with a PNU
cabinet that the User has 30 business days to decide whether to
contract to convert the PNU cabinet to a dedicated cabinet. If the
User does not contract to use the PNU cabinet as a dedicated cabinet
within such time, the PNU cabinet will be relinquished.
A User may purchase either or both of the following, so
long as the combined power usage of such purchases is no more than a
maximum of 32 kW:
a. New cabinets (dedicated and partial), subject to a maximum of
four dedicated cabinets with standard power allocations of 4 kW or 8
kW (``Standard Cabinets''). The purchase may be comprised of a mix
of dedicated and partial cabinets, with two partial cabinets
counting as one dedicated cabinet.
b. Additional power for new or existing cabinets.
If a User requests, in writing, a number of Standard
Cabinets and/or an amount of additional power that, if provided,
would cause the unallocated power capacity to be below the Power
Threshold or Cabinet Threshold, the Combined Limits would apply only
to the portion of the User's order below the relevant threshold.
A User will have to wait 30 days from the date of its
signed order form before purchasing new Standard Cabinets or
additional power again.
If the Power Threshold or Cabinet Threshold is reached,
the Exchange will cease offering or providing new PNU cabinets to
all Users and Users will not be permitted to convert a currently
used dedicated cabinet to a PNU cabinet.
When unallocated power capacity is above the Power
Threshold, the Exchange will discontinue the Combined Limits. If at
that time the unallocated cabinet inventory is 40 or fewer cabinets,
the Cabinet Limits would enter into effect.
c. Applicability. If the Cabinet Threshold is reached before the
Power Threshold, the Cabinet Limits will be in effect until the
Power Threshold is reached, after which the Combined Limits will
apply.
Proposed Amendments to General Note 8
The Exchange proposes to amend General Note 8 as follows (additions
italicized, deletions in [brackets]):
8. Cabinet and Combined Waitlists.
a. Cabinet Waitlist. Unless a Combined Waitlist is in effect,
t[T]he Exchange will create a cabinet waitlist (``Cabinet
Waitlist'') if the available cabinet inventory is zero, or a User
requests, in writing, a number of cabinets that, if provided, would
cause the available inventory to be zero. The Exchange will place
Users seeking cabinets on a Cabinet [w]Waitlist, as follows:
Users with PNU cabinets will not be required to either
convert their PNU cabinets into dedicated cabinets or relinquish
their PNU cabinets in accordance with the measures set forth in
General Note 7(a), above. [placed on the waitlist if the User could
meet its new cabinet request by converting its PNU cabinets to
dedicated cabinets. A User will only be placed on the waitlist for
the portion of its new cabinet request that exceeds its existing PNU
cabinets, subject to the Purchasing Limitations.]
A User will be placed on the Cabinet [w]Waitlist based
on the date its signed order is received. A User may only have one
order for new cabinets on the Cabinet [w]Waitlist at a time, and the
order is subject to the [Purchasing]Cabinet Limits. If a User
changes the size of its order while it is on the Cabinet Waitlist,
it will maintain its place on the Cabinet Waitlist, and will remain
subject to the Cabinet Limits.
As cabinets become available, the Exchange will offer
them to the User at the top of the Cabinet [w]Waitlist. If the
User's order is completed, it will be removed from the Cabinet
[w]Waitlist. If the User's order is not completed, it will remain at
the top of the Cabinet [w]Waitlist.
A User will be removed from the Cabinet [w]Waitlist (a)
at the User's request or (b) if
[[Page 11353]]
the User turns down an offer of a cabinet of the same size it
requested in its order. If the Exchange offers the User a cabinet of
a different size than the User requested in its order, the User may
turn down the offer and remain at the top of the Cabinet [w]Waitlist
until its order is completed.
A User that is removed from the Cabinet [w]Waitlist but
subsequently submits a new written order for cabinets will be added
back to the bottom of the Cabinet [w]Waitlist.
When unallocated cabinet inventory is more than 10
cabinets, the Exchange will cease use of the Cabinet [w]Waitlist.
b. Combined Waitlist. The Exchange would create a power and
cabinet waitlist (``Combined Waitlist'') if the unallocated power
capacity is zero, or if a User requests, in writing, an amount of
power (whether power allocated to a Standard Cabinet or additional
power) that, if provided, would cause the unallocated power capacity
to be below zero. The Exchange would place Users seeking cabinets or
power on the Combined Waitlist, as follows:
All Users with PNU cabinets will be required to either
convert their PNU cabinets into dedicated cabinets or relinquish
their PNU cabinets in accordance with the measures set forth in
General Note 7(b), above.
If a Cabinet Waitlist exists when the requirements to
create a Combined Waitlist are met, the Cabinet Waitlist will
automatically convert to the Combined Waitlist. If a Combined
Waitlist exists when the requirements to create a Cabinet Waitlist
are met, no new waitlist will be created, and the Combined Waitlist
will continue in effect.
A User will be placed on the Combined Waitlist based on
the date its signed order for cabinets and/or additional power is
received. A User may only have one order for new cabinets and/or
additional power on the Combined Waitlist at a time, and the order
would be subject to the Combined Limits. If a User changes the size
of its order while it is on the Combined Waitlist, it will maintain
its place on the Combined Waitlist, and will remain subject to the
Combined Limits.
As additional power and/or cabinets become available,
the Exchange will offer them to the User at the top of the Combined
Waitlist. If the User's order is completed, the order will be
removed from the Combined Waitlist. If the User's order is not
completed, it will remain at the top of the Combined Waitlist.
A User will be removed from the Combined Waitlist (a)
at the User's request; (b) if the User turns down an offer that is
the same as its order (e.g., the offer includes cabinets of the same
size and/or the amount of additional power that the User requested
in its order). If the Exchange offers the User an offer that is
different than its order, the User may turn down the offer and
remain at the top of the Combined Waitlist until its order is
completed.
A User that is removed from the Combined Waitlist but
subsequently submits a new written order for cabinets and/or
additional power will be added back to the bottom of the waitlist.
If the Combined Waitlist is in effect, when unallocated
power capacity in co-location is at 100 kW, the Exchange will cease
use of the waitlist. If at that time the unallocated cabinet
inventory is 10 or fewer cabinets, the Cabinet Limits would enter
into effect.
The proposed change would apply the same way to all types and sizes
of market participants. As is currently the case, the purchase of any
colocation service is completely voluntary and the Price List and Fee
Schedule are applied uniformly to all Users. The proposed change is not
otherwise intended to address any other issues relating to co-location
services and/or related fees, and the Exchange is not aware of any
problems that Users would have in complying with the proposed change.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\13\ in general, and furthers the
objectives of Sections 6(b)(4) and (5) of the Act,\14\ 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. In addition, it is designed 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.
---------------------------------------------------------------------------
\13\ 15 U.S.C. 78f(b).
\14\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------
The Proposed Rule Change Is Reasonable and Equitable
The Exchange believes that the proposed rule change is reasonable
and equitable for the following reasons.
The Exchange believes that User demand for power will continue. The
Exchange is currently working to expand the amount of power and number
of cabinets available in colocation. Nevertheless, the Exchange
believes that it would be reasonable for it to put in place the
Proposed Procedures to establish the allocation of power and cabinets
on an equitable basis, consistent with the Established Procedures. The
Proposed Procedures would establish a rational, objective procedure
that would be applied uniformly by the Exchange to all Users that
requested new cabinets or Additional Power.
The Exchange believes that integrating the procedures for the
allocation of power with the Existing Procedures would be reasonable,
because cabinets are provided with power. Having both power and
cabinets covered by the Proposed Procedures would ensure that the
procedures for all relevant services are consistent and coordinated.
Having the Proposed Procedures state what would occur if the Cabinet
Threshold and Power Threshold are reached at different times, and how
the Cabinet Waitlist and Combined Waitlist interrelate, is reasonable
for the same reason.
The Exchange believes that following the Existing Procedures' two-
tier structure of establishing, first, a purchasing limitation on order
size, and second, a waitlist, would be a reasonable method to respond
to increasing demand for power and cabinets in the future. The Exchange
notes that the Existing Procedures are consistent with the Nasdaq
procedures for allocating cabinets if its cabinet inventory shrinks to
zero.\15\ The Exchange believes that it is reasonable to amend the
Existing Procedures to clarify what would occur if a User changes the
size of its order while it is on the Cabinet Waitlist.
---------------------------------------------------------------------------
\15\ See Securities Exchange Act Release No. 62397 (June 28,
2010), 75 FR 38860 (July 6, 2010) (SR-NASDAQ-2010-019).
---------------------------------------------------------------------------
The Exchange believes that the proposed Power Threshold is
reasonable and equitable. Based on experience, the Exchange believes
that the Power Threshold of 350 kW is reasonable and appropriate
because it is sufficiently low that it would not be triggered
repeatedly, yet it offers a reasonable buffer during which the Combined
Limits would apply before the Combined Waitlist would become effective.
The Exchange believes that the proposed Combined Limits are
reasonable and equitable. Based on its experience with co-location and
purchasing trends over the last few years, the Exchange believes that
in most cases the amount of power that a User would be allowed to buy
under the proposed Combined Limits, whether in the form of cabinets or
Additional Power, would be sufficient for a User's needs while leaving
a margin for potential growth.
Further, the Exchange believes that, by establishing a waitlist on
the basis of the date it receives signed orders, limiting the size and
number of orders a User may have on the waitlist at any
[[Page 11354]]
one time, stating what happens if a User changes its order while on the
waitlist, and removing a User from the waitlist if it turns down an
offer that is the same as what it requested, the Combined Waitlist is
largely consistent with the Existing Procedures and reasonably designed
to prevent Users from utilizing the waitlist as a method to obtain a
greater portion of the power and cabinets available, thereby
facilitating a more equitable distribution. Similarly, the Exchange
believes that by requiring a 30-day delay before a User subject to the
Combined Limits could purchase Standard Cabinets or Additional Power
again, the Proposed Procedure is reasonably designed to prevent a User
from obtaining a greater portion of the power and cabinets available.
The Exchange believes that the proposed change is reasonable and
equitable because the Exchange would only place limits on Users'
ability to purchase Standard Cabinets or Additional Power if either or
both the Power Threshold and Cabinet Threshold are reached. Similarly,
the Exchange believes that the proposed change is reasonable and
equitable because the Combined Waitlist would only be created if
unallocated power capacity in co-location is zero, or if a User
requests, in writing, an amount of power (whether power allocated to a
Standard Cabinet or Additional Power) that, if provided, would cause
the unallocated power capacity to be below zero, and because there
would be an established threshold for cessation of the Combined
Waitlist.
The Exchange believes that it would be reasonable and equitable to
require Users with PNU cabinets to either convert their PNU cabinets
into dedicated cabinets or relinquish them if either or both the
Cabinet Threshold and Power Threshold are reached. Doing so would make
the power reserved for PNU cabinets and the cabinets themselves
available to meet User demand for power and cabinets. As a result, no
User would be subject to limitations on its ability to purchase and use
power or cabinets at the same time that PNU cabinets were dormant. The
Exchange believes that the measure is therefore reasonably designed to
prevent a User from reserving, but not using, power or cabinets at a
time when other Users are subject to limitations, facilitating a more
equitable distribution.
The Proposed Procedures would provide additional specificity to the
existing PNU cabinet provision permitting conversion of PNU cabinets,
by stating what the relevant thresholds would be, when the Exchange
would require Users to decide whether to convert their PNU cabinets,
and when PNU cabinets would be offered again, thereby increasing
transparency and adding clarity.
The Exchange believes that the proposed change would be a
reasonable method for the Exchange to accommodate demand for power and
cabinets on an equitable basis, while allowing all Users that currently
have a PNU cabinet to have a choice between converting their PNU
cabinet to a dedicated cabinet or relinquishing it. The Exchange notes
that Nasdaq's co-location customers that have a ``Cabinet Proximity
Option'' have a similar choice if Nasdaq determines that the reserved
data center space is needed for use.\16\ Finally, the Exchange believes
that it would be fair and equitable to require all Users with PNU
cabinets to be subject to the same measures if the Cabinet Threshold or
Power Threshold were met.
---------------------------------------------------------------------------
\16\ Co-location customers may either contract with Nasdaq for
full payment or have the cabinet reassigned. Securities Exchange Act
Release No. 62354 (June 22, 2010), 75 FR 38860 (July 6, 2010) (SR-
Nasdaq-2010-019).
---------------------------------------------------------------------------
The Proposed Rule Change Would Protect Investors and the Public
Interest
The Exchange believes that the proposed rule change would perfect
the mechanisms of a free and open market and a national market system
and, in general, protect investors and the public interest for the
following reasons.
The Exchange believes that User demand for cabinets and power will
continue. In this context, the proposed rule change would allow the
Exchange to protect investors and the public interest, first, by
setting limits on Users' ability to purchase power, and second, by
using a waitlist to allocate any unallocated cabinets and power on a
first come-first served rolling basis.
Based on experience, the Exchange believes that the Power Threshold
is sufficiently low that it would not be triggered repeatedly, which
would protect investors and the public interest. Similarly, based on
its experience with co-location and purchasing trends over the last few
years, the Exchange believes that in most cases the amount of power
that a User would be allowed to buy under the proposed Combined Limits,
whether in the form of cabinets or Additional Power, would be
sufficient for a User's needs while leaving a margin for potential
growth, which would protect investors and the public interest.
In addition, the Proposed Procedures would protect investors and
the public interest in that they are designed to prevent Users from
utilizing the Combined Limit and waitlist procedures to obtain a
greater portion of the power and cabinets available, thereby
facilitating a more equitable distribution.
The Exchange believes that it would protect investors and the
public interest to require Users with PNU cabinets to either convert
their PNU cabinets into dedicated cabinets or relinquish them if either
or both the Cabinet Threshold and Power Threshold are reached. Doing so
would mean that no User would be subject to limitations on its ability
to purchase and use power or cabinets at the same time that PNU
cabinets were dormant. The Exchange believes that the measure is
therefore reasonably designed to prevent a User from reserving but not
using power or cabinets at a time when other Users are subject to
limitations.
The proposed rule change would protect investors and the public
interest because the proposed revised General Notes would articulate
rational, objective procedures consistent with the Existing Procedures
and PNU cabinet provisions, and would serve to reduce any potential for
confusion on how cabinets and power would be allocated if a shortage in
one or the other were to arise in the future, and would thereby make
the Price List and Fee Schedule more transparent and reduce any
potential ambiguity.
The Proposed Change Is Not Unfairly Discriminatory
The Exchange believes that the proposed change is not unfairly
discriminatory for the following reasons.
The proposed change would apply equally to all types and sizes of
market participants. If the Proposed Procedures were in place, all
Users would be able to identify the permitted cabinet and power options
and the procedures that would apply to them in the event that
unallocated cabinet or power supply runs low in the future. All Users
with PNU cabinets would be subject to the same measures if the Cabinet
Threshold or Power Threshold were met. The Proposed Procedures would
assist the Exchange in accommodating demand for co-location services,
and power and cabinets in particular, on an equitable basis.
For the reasons above, the proposed changes do 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.
[[Page 11355]]
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,\17\ the Exchange
believes that the proposed rule change will not impose any burden on
competition that is not necessary or appropriate in furtherance of the
purposes of the Act.
---------------------------------------------------------------------------
\17\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------
Intramarket Competition
The Exchange does not believe that the proposed change would place
any burden on intramarket competition that is not necessary or
appropriate. The proposed change would not apply differently to
distinct types or sizes of market participants. Rather, it would apply
to all Users equally.
The Exchange believes that, if triggered, the imposition of the
Combined Limits or Combined Waitlist would not impose a burden on a
User's ability to compete that is not necessary or appropriate. The
Exchange believes that User demand for power will continue in the
future, and the Exchange is presently working to expand the amount of
power and number of cabinets available in colocation. In this context,
the Exchange believes that it would be reasonable for it to put in
place the Proposed Procedures to expand on the Existing Procedures and
establish a method for allocating not just cabinets but also power on
an equitable basis.
The Exchange would only follow the Proposed Procedures and place
limits on Users' ability to purchase new power and cabinets if either
or both the proposed Power Threshold and existing Cabinet Threshold
were met, as specified in the proposed General Notes. Similarly, the
Exchange would only create the Proposed Waitlist if the unallocated
power capacity is zero, or if a User requests, in writing, an amount of
power that, if provided, would cause the unallocated power capacity to
be below zero. Based on its experience with co-location and purchasing
trends over the last few years, the Exchange believes that in most
cases the amount of power that a User would be allowed to buy under the
proposed Combined Limits, whether in the form of cabinets or Additional
Power, would be sufficient for a User's needs while leaving a margin
for potential growth.
The Exchange believes that the proposed revised General Notes would
articulate rational, objective procedures consistent with the Existing
Procedures and PNU cabinet provisions, and would serve to reduce any
potential for confusion on how power and cabinets would be allocated if
a shortage in one or the other were to arise in the future, and would
thereby make the Price List and Fee Schedule more transparent and
reduce any potential ambiguity.
The Exchange believes that it would not impose a burden on a User's
ability to compete that is not necessary or appropriate to require
Users with PNU cabinets to either convert or relinquish their PNU
cabinets if either or both the Cabinet Threshold and Power Threshold
are reached. Doing so would make the power reserved for PNU cabinets
and the cabinets themselves available to meet User demand for power and
cabinets. As a result, no User would be subject to limitations on its
ability to purchase and use power or cabinets at the same time that PNU
cabinets were dormant. A User does not require a PNU cabinet to trade
on the Exchange, and whether or not a User has a PNU cabinet has no
effect on such User's orders going to, or trade data coming from, the
Exchange, or the User's ability to utilize other co-location services.
Rather, the proposed change would assist the Exchange in accommodating
demand for co-location services on an equitable basis.
Use of any co-location service is completely voluntary, and each
market participant is able to determine whether to use co-location
services based on the requirements of its business operations.
Intermarket Competition
The Exchange does not believe that the proposed change would impose
any burden on intermarket competition that is not necessary or
appropriate.
The Exchange operates in a highly competitive market in which
exchanges and other vendors (i.e., Hosting Users) offer co-location
services as a means to facilitate the trading and other market
activities of those market participants who believe that co-location
enhances the efficiency of their operations. Accordingly, fees charged
for co-location services are constrained by the active competition for
the order flow of, and other business from, such market participants.
The Commission has repeatedly expressed its preference for
competition over regulatory intervention in determining prices,
products, and services in the securities markets. Specifically, in
Regulation NMS, the Commission highlighted the importance of market
forces in determining prices and SRO revenues and, also, recognized
that current regulation of the market system ``has been remarkably
successful in promoting market competition in its broader forms that
are most important to investors and listed companies.'' \18\
---------------------------------------------------------------------------
\18\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005).
---------------------------------------------------------------------------
The proposed rule change would protect investors and the public
interest because the proposed revised General Notes would articulate
rational, objective procedures consistent with the Existing Procedures
and PNU cabinet provisions, and would serve to reduce any potential for
confusion on how cabinets and power would be allocated if a shortage in
one or the other were to arise in the future, and would thereby make
the Price List and Fee Schedule more transparent and reduce any
potential ambiguity.
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
Within 45 days of the date of publication of this notice in the
Federal Register or up to 90 days (i) as the Commission may designate
if it finds such longer period to be appropriate and publishes its
reasons for so finding or (ii) as to which the self-regulatory
organization consents, the Commission will:
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule
change should be 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 [email protected]. Please include
File Number SR-NYSEAMER-2021-08 on the subject line.
[[Page 11356]]
Paper Comments
Send paper comments in triplicate to: Securities and
Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEAMER-2021-08. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (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 website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NYSEAMER-2021-08 and should be submitted
on or before March 17, 2021.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\19\
---------------------------------------------------------------------------
\19\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-03719 Filed 2-23-21; 8:45 am]
BILLING CODE 8011-01-P
