Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Its Price List, 52530-52534 [2021-20332]

Download as PDF 52530 Federal Register / Vol. 86, No. 180 / Tuesday, September 21, 2021 / Notices institute proceedings to determine whether to disapprove, the proposed rule change (File No. SR–CboeBZX– 2021–051). SECURITIES AND EXCHANGE COMMISSION [Release No. 34–92989; File No. SR– CboeBZX–2021–051] Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change To List and Trade Shares of the ARK 21Shares Bitcoin ETF Under BZX Rule 14.11(e)(4), Commodity-Based Trust Shares September 15, 2021. lotter on DSK11XQN23PROD with NOTICES1 On July 20, 2021, Cboe BZX Exchange, Inc. (‘‘BZX’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to list and trade shares of the ARK 21Shares Bitcoin ETF under BZX Rule 14.11(e)(4), Commodity-Based Trust Shares. The proposed rule change was published for comment in the Federal Register on August 6, 2021.3 The Commission has received comments on the proposed rule change.4 Section 19(b)(2) of the Act 5 provides that within 45 days of the publication of notice of the filing of a proposed rule change, or within such longer period 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 shall either approve the proposed rule change, disapprove the proposed rule change, or institute proceedings to determine whether the proposed rule change should be disapproved. The 45th day after publication of the notice for this proposed rule change is September 20, 2021. The Commission is extending this 45-day time period. The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change and the comments received. Accordingly, pursuant to Section 19(b)(2) of the Act,6 the Commission designates November 4, 2021, as the date by which the Commission shall either approve or disapprove, or 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 See Securities Exchange Act Release No. 92543 (August 2, 2021), 86 FR 43289 (August 6, 2021). 4 Comments received on the proposed rule change are available at: https://www.sec.gov/comments/srcboebzx-2021-051/srcboebzx2021051.htm. 5 15 U.S.C. 78s(b)(2). 6 Id. 2 17 VerDate Sep<11>2014 21:03 Sep 20, 2021 Jkt 253001 For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.7 J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2021–20328 Filed 9–20–21; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–93001; File No. SR–NYSE– 2021–50] Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Its Price List September 15, 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 August 31, 2021, New York Stock Exchange LLC (‘‘NYSE’’ 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 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 amend its Price List to extend the end of the Decommission Period from August 2021 to September 2021. The Exchange proposes to implement these changes to its Price List effective September 1, 2021. 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 7 17 CFR 200.30–3(a)(31). 1 15 U.S.C. 78s(b)(1). 2 15 U.S.C. 78a. 3 17 CFR 240.19b–4. PO 00000 Frm 00093 Fmt 4703 Sfmt 4703 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 purpose of this filing is to provide additional time for member organizations to finalize their transition from older to newer and more efficient Pillar technology. The Exchange is not proposing to adjust the amount of the port fees or the fees charged to offset the Exchange’s continuing costs of supporting legacy ports, which will remain at the current level for all market participants. Effective July 3, 2019, the Exchange introduced transition pricing designed to provide member organizations an extended transition period to connect to the Exchange using Pillar technology with no fee increase. Specifically, the Exchange (1) adopted a cap on monthly fees for the use of certain ports connecting to the Exchange for the billing months July 2019 through March 2020 (the ‘‘Transition Period’’); (2) adopted a Decommission Extension Fee applicable for the billing months April 2020 through September 2020 (the ‘‘Decommission Period’’) for legacy port connections; and (3) prorated the monthly fee for certain ports activated after July 1, 2019, effective April 1, 2020.4 Effective March 2, 2020, the Exchange (1) extended the end of the Transition Period from March 2020 to August 2020 for member organizations to transition to the utilization of ports that connect to the Exchange using Pillar technology; (2) shortened the Decommission Period from six months (April 2020–September 2020) to four months (September– December 2020); (3) extended the effective date that the Exchange would prorate the monthly fee for certain ports activated on or after July 1, 2019 from April 1, 2020 to September 1, 2020; and (4) revised the fees charged for legacy port connections during the Decommission Period.5 4 See Securities Exchange Act Release No. 86360 (July 11, 2019), 84 FR 34210 (July 17, 2019) (SR– NYSE–2019–39). 5 See Securities Exchange Act Release No. 88373 (March 12, 2020), 85 FR 15533 (March 18, 2020) (SR–NYSE–2020–14). E:\FR\FM\21SEN1.SGM 21SEN1 Federal Register / Vol. 86, No. 180 / Tuesday, September 21, 2021 / Notices Effective August 1, 2020, the Exchange (1) extended the end of the Transition Period from August 2020 to October 2020; (2) extended the beginning of the Decommission Period from September 2020 to November 2020 and the end of the Decommission Period from December 2020 to February 2021; and (3) extended the effective date that the Exchange would prorate the monthly fee for ports activated on or after July 1, 2019 from September 1, 2020 to November 1, 2020.6 Effective October 1, 2020, the Exchange (1) extended the end of the Transition Period from October 2020 to December 2020; (2) extended the beginning of the Decommission Period from November 2020 to January 2021 and the end of the Decommission Period from February 2021 to April 2021; and (3) extended the effective date that the Exchange would prorate the monthly fee for ports activated on or after July 1, 2019 from November 1, 2020 to January 1, 2021.7 Effective December 1, 2020, the Exchange (1) extended the end of the Transition Period from December 2020 to February 2021; (2) extended the beginning of the Decommission Period from January 2021 to March 2021 and the end of the Decommission Period from April 2021 to June 2021; and (3) extended the effective date that the Exchange would prorate the monthly fee for ports activated on or after July 1, 2019 from January 1, 2021 to March 1, 2021.8 Effective June 10, 2021, the Exchange extended the end of the Decommission Period two months from June 2021 to August 2021.9 The Exchange proposes to extend the end of the Decommission Period one month from August 2021 to September 2021 in order to allow member organizations that did not complete the transition during the Transition Period the ability to choose to continue using Phase I ports until September 2021. The Exchange proposes to implement these changes to its Price List effective September 1, 2021. lotter on DSK11XQN23PROD with NOTICES1 Competitive Environment The Exchange operates in a highly competitive market. The Commission 6 See Securities Exchange Act Release No. 89591 (August 18, 2020), 85 FR 52159 (August 24, 2020) (SR–NYSE–2020–14). 7 See Securities Exchange Act Release No. 90180 (October 14, 2020), 85 FR 66612 (October 20, 2020) (SR–NYSE–2020–82). 8 See Securities Exchange Act Release No. 90661 (December 14, 2020), 85 FR 82532 (December 18, 2020) (SR–NYSE–2020–99). 9 See Securities Exchange Act Release No. 92234 (June 22, 2021), 86 FR 34080 (June 28, 2021) (SR– NYSE–2021–36). VerDate Sep<11>2014 21:03 Sep 20, 2021 Jkt 253001 has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. 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.’’ 10 While Regulation NMS has enhanced competition, it has also fostered a ‘‘fragmented’’ market structure where trading in a single stock can occur across multiple trading centers. When multiple trading centers compete for order flow in the same stock, the Commission has recognized that ‘‘such competition can lead to the fragmentation of order flow in that stock.’’ 11 Indeed, equity trading is currently dispersed across 16 exchanges,12 31 alternative trading systems,13 and numerous broker-dealer internalizers and wholesalers, all competing for order flow. Based on publicly available information, no single exchange has more than 17% market share.14 The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can shift order flow, or discontinue or reduce use of certain categories of products, including ports, in response to fee changes. Accordingly, the Exchange’s fees, including port fees, are reasonably constrained by competitive alternatives and market participants can readily trade on competing venues if they deem pricing levels at those other venues to be more favorable. The Exchange is proposing these changes in the context of a competitive environment in which market participants can and do shift order flow, or discontinue or reduce use of certain 10 See Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37495, 37499 (June 29, 2005) (S7–10–04) (Final Rule) (‘‘Regulation NMS’’). 11 See Securities Exchange Act Release No. 61358, 75 FR 3594, 3597 (January 21, 2010) (File No. S7– 02–10) (Concept Release on Equity Market Structure). 12 See Cboe Global Markets, U.S. Equities Market Volume Summary, available at https://markets.cboe. com/us/equities/market_share/. See generally https://www.sec.gov/fast-answers/divisions marketregmrexchangesshtml.html. 13 See FINRA ATS Transparency Data, available at https://otctransparency.finra.org/ otctransparency/AtsIssueData. A list of alternative trading systems registered with the Commission is available at https://www.sec.gov/foia/docs/atslist. htm. 14 See Cboe Global Markets U.S. Equities Market Volume Summary, available at https://markets.cboe. com/us/equities/market_share/. PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 52531 categories of products, in response to fee changes. Because ports are used by member organizations to trade electronically on the Exchange, fees associated with ports are subject to these same competitive forces. The Exchange believes that the proposal represents a reasonable attempt to provide member organizations with additional time to finalize an orderly transition to upgraded technology. Proposed Rule Change Member organizations enter orders and order instructions, and receive information from the Exchange, by establishing a connection to a gateway that uses communication protocols that map to the order types and modifiers described in Exchange rules. These gateway connections, also known as logical port connections, are referred to as ‘‘ports’’ on the Exchange’s Price List. Legacy ports connect with the Exchange via a Common Customer Gateway (known as ‘‘CCG’’) that accesses its equity trading systems (‘‘Phase I ports’’). Beginning July 1, 2019, the Exchange began making available ports using Pillar gateways to its member organizations (‘‘Phase II ports’’). Currently, member organizations that have not transitioned to Phase II ports and are still utilizing Phase I ports during the billing months of March 2021 through August 2021 (i.e., the Decommission Period), would, in addition to the current port fees, be charged a Decommission Extension Fee of $1,000 per port per month, increasing by $1,000 per port for each month for any ports that communicate using Pillar phase I protocols. As per the Price List, ports using Pillar phase I protocols would no longer be available beginning September 1, 2021. The Exchange proposes that the Decommission Period would end one month later, in September 2021. As proposed, the Price List would also be amended to provide that ports using Pillar phase I protocols would no longer be available beginning October 1, 2021. As noted above, the Exchange believes that, to the extent that member organizations do not complete the transition during the Transition Period, the proposed rule change will offer member organizations the ability to choose to continue using Phase I ports until September 2021. The proposed changes are not otherwise intended to address any other issues, and the Exchange is not aware of any problems that member organizations would have in complying with the proposed change. E:\FR\FM\21SEN1.SGM 21SEN1 52532 Federal Register / Vol. 86, No. 180 / Tuesday, September 21, 2021 / Notices 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,15 in general, and furthers the objectives of Sections 6(b)(4) and 6(b)(5) of the Act,16 in particular, because it provides for the equitable allocation of reasonable dues, fees, and other charges among its members, issuers and other persons using its facilities and does not unfairly discriminate between customers, issuers, brokers or dealers. The Proposed Change Is Reasonable The Exchange operates in a highly competitive market. The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. 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.’’ 17 While Regulation NMS has enhanced competition, it has also fostered a ‘‘fragmented’’ market structure where trading in a single stock can occur across multiple trading centers. When multiple trading centers compete for order flow in the same stock, the Commission has recognized that ‘‘such competition can lead to the fragmentation of order flow in that stock.’’ 18 Indeed, equity trading is currently dispersed across 16 exchanges,19 31 alternative trading systems,20 and numerous broker-dealer internalizers and wholesalers, all competing for order flow. Based on publicly available information, no single exchange has more than 17% market 15 15 U.S.C. 78f(b). U.S.C. 78f(b)(4) & (5). 17 See Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37495, 37499 (June 29, 2005) (S7–10–04) (Final Rule) (‘‘Regulation NMS’’). 18 See Securities Exchange Act Release No. 61358, 75 FR 3594, 3597 (January 21, 2010) (File No. S7– 02–10) (Concept Release on Equity Market Structure). 19 See Cboe Global Markets, U.S. Equities Market Volume Summary, available at https:// markets.cboe.com/us/equities/market_share/. See generally https://www.sec.gov/fast-answers/ divisionsmarketregmrexchangesshtml.html. 20 See FINRA ATS Transparency Data, available at https://otctransparency.finra.org/ otctransparency/AtsIssueData. A list of alternative trading systems registered with the Commission is available at https://www.sec.gov/foia/docs/ atslist.htm. lotter on DSK11XQN23PROD with NOTICES1 16 15 VerDate Sep<11>2014 21:03 Sep 20, 2021 Jkt 253001 share.21 The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can shift order flow, or discontinue or reduce use of certain categories of products, including ports, in response to fee changes. Accordingly, the Exchange’s fees, including port fees, are reasonably constrained by competitive alternatives and market participants can readily trade on competing venues if they deem pricing levels at those other venues to be more favorable. The Exchange believes that the evershifting market share among the exchanges from month to month demonstrates that market participants can shift order flow, or discontinue or reduce use of certain categories of products, including ports, in response to fee changes. Accordingly, the Exchange’s fees, including port fees, are reasonably constrained by competitive alternatives and market participants can readily trade on competing venues if they deem pricing levels at those other venues to be more favorable. If a particular exchange charges excessive fees for connectivity, impacted members and non-members may opt to terminate their connectivity arrangements with that exchange, and adopt a possible range of alternative strategies, including routing to the applicable exchange through another participant or market center or taking that exchange’s data indirectly. Accordingly, if the Exchange charges excessive fees, it would stand to lose not only connectivity revenues but also revenues associated with the execution of orders routed to it, and, to the extent applicable, market data revenues. The Exchange believes that this competitive dynamic imposes powerful restraints on the ability of any exchange to charge unreasonable fees for connectivity. Given this competitive environment, the proposal represents a fair and reasonable attempt to provide member organizations with additional time to finalize an orderly transition to upgraded technology. As of August 2021, 4.7% of legacy ports have not been cancelled. The pricing is designed so that these few remaining member organizations utilizing legacy ports would pay for the Exchange to continue to support their Phase I ports through September 2021. 21 See Cboe Global Markets U.S. Equities Market Volume Summary, available at https://markets. cboe.com/us/equities/market_share/. PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 The Proposal Is an Equitable Allocation of Fees The Exchange believes its proposal equitably allocates its fees among its market participants. The Exchange is not proposing to adjust the amount of the port fees or the fees charged fees to offset the Exchange’s continuing costs of supporting legacy ports, which will remain at the current level for all market participants. Rather, the proposal would provide additional time for member organizations to transition from older to newer and more efficient Pillar technology and would charge the same fee for those few member organizations that choose not to transition to Phase II ports during the extended Transition Period. The proposal constitutes an equitable allocation of fees because all similarly situated member organizations and other market participants that, following the transition period, choose to connect to the Exchange through the use of Phase I ports during the Decommission Period would continue to be charged the same, unchanged Decommission Extension Fee. The Proposal Is Not Unfairly Discriminatory The Exchange believes that the proposal is not unfairly discriminatory. In the prevailing competitive environment, member organizations are free to disfavor the Exchange’s pricing if they believe that alternatives offer them better value, and are free to discontinue to connect to the Exchange through its ports. As noted, the Exchange is offering upgraded connections in an effort to keep pace with changes in the industry and evolving customer needs as new technologies emerge and products continue to develop and change. The proposal neither targets nor will it have a disparate impact on any particular category of market participant. The Exchange believes that the proposal does not permit unfair discrimination because the proposal would be applied to all similarly situated member organizations and other market participants would be charged the same rates, which will remain unchanged. The Exchange believes that the proposal does not permit unfair discrimination because the Decommission Extension Fee would apply equally to all member organizations that require additional time to complete their transition to the Phase II ports. At any point during the Decommission Period, a member organization could cease to be subject to the Decommission Fee by expediting its E:\FR\FM\21SEN1.SGM 21SEN1 Federal Register / Vol. 86, No. 180 / Tuesday, September 21, 2021 / Notices lotter on DSK11XQN23PROD with NOTICES1 transition to the new ports. The Decommission Fee would thus apply equally to all member organizations during the proposed extended Decommission Period that choose to continue to connect to the Exchange through the use of legacy ports. As noted, to the extent a member organization continues to use ports activated before July 1, 2019 to connect to the Exchange during the proposed extended Decommission Period, the Exchange believes it is fair, equitable and not unfairly discriminatory to continue to charge flat fees for such ports until such time that connection to the Exchange through the use of old ports is no longer available beginning, as proposed, on October 1, 2021. Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange’s statement regarding the burden on competition. For the foregoing reasons, the Exchange believes that the proposal is consistent with the Act. B. Self-Regulatory Organization’s Statement on Burden on Competition In accordance with Section 6(b)(8) of the Act,22 the Exchange believes that the proposed rule change would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Instead, as discussed above, the Exchange believes that the proposed changes would provide additional time for member organizations to finalize the transition from older to newer and more efficient Pillar technology with no fee increase and offset the Exchange’s continuing costs of supporting the Phase I ports for the few firms that do not transition to the new ports during the longer transition period without any change to the fees currently charged by the Exchange for the use of ports to connect to the Exchange’s trading systems. Intramarket Competition. The Exchange does not believe the proposed rule change would impose any burden on intramarket competition that is not necessary or appropriate because it would apply to all member organizations equally that connect to the Exchange. All member organizations, regardless of size, that did not complete the transition to Phase II ports by the end of February 2021 date are subject to the Decommission Fee on an equal basis and would continue to be subject to the fee on an equal basis for the proposed additional two months if they do not complete the transition to Phase II ports. As noted, as of August 2021, 4.7% of 22 15 U.S.C. 78f(b)(8). VerDate Sep<11>2014 21:03 Sep 20, 2021 Jkt 253001 legacy ports have not been cancelled. The pricing is designed so that these few remaining member organizations utilizing legacy ports would pay for the Exchange to continue to support their Phase I ports through August 2021. Intermarket Competition. The Exchange does not believe the proposed rule change would impose any burden on intermarket competition that is not necessary or appropriate because the Exchange operates in a highly competitive market in which market participants can readily choose to send their orders to other exchange and offexchange venues if they deem fee levels at those other venues to be more favorable. The Exchange believes that fees for connectivity are constrained by the robust competition for order flow among exchanges and non-exchange markets. As noted, the no single exchange has more than 17% of the market share of executed volume of equity trades (whether excluding or including auction volume).23 The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can shift order flow, or discontinue or reduce use of certain categories of products, including ports, in response to fee changes. Accordingly, the Exchange’s fees, including port fees, are reasonably constrained by competitive alternatives and market participants can readily trade on competing venues if they deem pricing levels at those other venues to be more favorable. The Exchange is proposing these changes in the context of a competitive environment in which market participants can and do shift order flow, or discontinue or reduce use of certain categories of products, in response to fee changes. Because ports are used by member organizations to trade electronically on the Exchange, fees associated with ports are subject to these same competitive forces. The Exchange therefore believes that the proposal would not impose an undue burden on intermarket competition because the purpose of this filing is not to change the rates charged for ports or to offset the Exchange’s continuing costs of supporting legacy ports but rather to provide member organizations with more time to effect an orderly transition to upgraded technology without needing to incur any additional costs. 23 See Cboe Global Markets U.S. Equities Market Volume Summary, available at https://markets. cboe.com/us/equities/market_share/. PO 00000 Frm 00096 Fmt 4703 Sfmt 4703 52533 C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were solicited or received with respect to the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A) 24 of the Act and subparagraph (f)(2) of Rule 19b–4 25 thereunder, because it establishes a due, fee, or other charge imposed by the Exchange. At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B) 26 of the Act to determine whether the proposed rule change should be approved or disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission’s internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– NYSE–2021–50 on the subject line. Paper Comments • Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090. All submissions should refer to File Number SR–NYSE–2021–50. 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/ 24 15 U.S.C. 78s(b)(3)(A). CFR 240.19b–4(f)(2). 26 15 U.S.C. 78s(b)(2)(B). 25 17 E:\FR\FM\21SEN1.SGM 21SEN1 52534 Federal Register / Vol. 86, No. 180 / Tuesday, September 21, 2021 / Notices 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–NYSE–2021–50 and should be submitted on or before October 12, 2021. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.27 J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2021–20332 Filed 9–20–21; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–93003; File No. SR– NASDAQ–2021–070] Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Incorporate NOM Options 4 Rules by Reference to Nasdaq ISE, LLC Options 4 Rules lotter on DSK11XQN23PROD with NOTICES1 September 15, 2021. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on September 3, 2021, The Nasdaq Stock Market LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) the proposed rule change as described in Items I, II, and III, below, which Items have been prepared by the Exchange. 27 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 1 15 VerDate Sep<11>2014 21:03 Sep 20, 2021 Jkt 253001 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 incorporate The Nasdaq Options Market LLC (‘‘NOM’’) Options 4 Rules by reference to Nasdaq ISE, LLC (‘‘ISE’’) Options 4 Rules. The text of the proposed rule change is available on the Exchange’s website at https://listingcenter.nasdaq.com/ rulebook/nasdaq/rules, 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 Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The NOM Options 4 Listing Rules provide for the options that may be listed and traded on NOM. The Exchange proposes to incorporate the NOM Options 4 Rules by reference to Nasdaq ISE, LLC (‘‘ISE’’) Options 4 Rules. Currently, the NOM Options 4 Rules are very similar to the ISE Options 4 Rules. The differences between the NOM and ISE Options 4 Rules are nonsubstantive technical differences.3 Other 3 NOM Options 4, Section 2 has an extra ‘‘as’’. NOM Options 4, Section 3(a)(1) contains a ‘‘The’’ instead of ‘‘the.’’ NOM Options 4, Section 3(b) uses the term ‘‘foregoing’’ as compared to ‘‘forgoing’’ on ISE. NOM Options 4, Section 3(h) defines the term ‘‘NMS stock’’ whereas ISE defines the term ‘‘NMS.’’ NOM Options 4, Section 3(k)(1)(B) has an extra ‘‘this.’’ The term ‘‘such’’ within NOM Options 4, Section 4(f)(5) is lowercase. The title ‘‘Supplementary Material to Options 4, Section 6’’ within Options 4, Section 4 should instead state, ‘‘Supplementary Material to Options 4, Section 4.’’ NOM Options 4, Section 5(a) has an extra ‘‘by the Exchange.’’ NOM Options 4, Section 5(b) has a ‘‘the’’ and ISE Options 4, Section 5(b) has a ‘‘that.’’ Options 4, Section 5(e) has a lowercase ‘‘rule’’ and unlike the same rule in ISE does not have the PO 00000 Frm 00097 Fmt 4703 Sfmt 4703 changes are non-substantive word choice differences.4 Finally, certain rules utilize the phrase ‘‘this Rule’’ instead of a citation.5 Of note, NOM Options 4, Section 3(h) does not list reverse repurchase agreements in the defined term ‘‘Financial Instruments’’. The Exchange proposes to include ‘‘reverse repurchase agreements’’ within the list of securities deemed appropriate for options trading on NOM in order that the Exchange may list the same products as ISE may list today. Also, NOM Options 4, Section 8(a) should include the words ‘‘and continuity.’’ NOM’s continuity rules utilize the LEAP registered trademarks. NOM Supplementary .01(a) to Options 4, Section 5 uses ‘‘$50’’ instead of ‘‘$50.00,’’ has the term ‘‘option’’ instead of ‘‘options,’’ spells out ‘‘one hundred fifty’’ and incorrectly uses the term ‘‘LEAPS’’ instead of ‘‘LEAPs.’’ NOM Supplementary .01(b) to Options 4, Section 5 has the terms ‘‘security’’ instead of ‘‘stock’’ and ‘‘the’’ instead of ‘‘its.’’ NOM Supplementary .01(d) to Options 4, Section 5 uses the term ‘‘Strike Program’’ instead of ‘‘Strike Price Program;’’ uses an extra ‘‘the’’; and phrases the last paragraph as, ‘‘Notwithstanding the above delisting policy, the Exchange may grant member requests to add strikes and/or maintain strikes in series of options classes traded pursuant to the $1 Strike Program that are eligible for delisting.’’ The last paragraph of ISE Supplementary .01(d) to Options 4, Section 5 states, ‘‘Notwithstanding the above delisting policy, Member requests to add strikes and/or maintain strikes in series of options classes traded pursuant to the $1 Strike Price Interval Program that are eligible for delisting may be granted.’’ These differences are non-substantive. NOM Supplementary .02(d) to Options 4, Section 5 has the term ‘‘section’’ instead of ‘‘Rule.’’ NOM Supplementary .03(e) to Options 4, Section 5 has rule in lowercase. NOM Options 4, Section 6(a) uses a different phrase than ISE Options 4, Section 6(a), ‘‘Select provisions of the OLPP’’ versus ‘‘The provisions set forth in this Rule’’. This aforementioned difference is non-substantive. NOM Options 4, Section 6(b)(3) uses the term ‘‘options’’ instead of ‘‘option.’’ NOM Options 4, Section 6(b)(ii)(1) uses the term ‘‘options’’ instead of ‘‘option,’’ the term ‘‘Strike Program’’ instead of ‘‘Strike Price Interval Program’’ and, ‘‘rules’’ instead of ‘‘Rules.’’ NOM Options 4, Section 9 uses the term ‘‘Fund Shares’’ instead of ‘‘Exchange-Traded Fund Shares.’’ 4 NOM Options 4, Section 4(b)(5) should cite to ‘‘Options 4, Section 3(c)’’ instead of ‘‘Options 4, Section 3.’’ In addition, NOM Options 4, Section 4(b)(5) has two stray commas. NOM Options 4, Section 4(f) has an extra ‘‘in’’. NOM Options 4, Section 4(g)(2) has an extra ‘‘of Options 4’’ and two stray commas. NOM Options 4, Section 5(d) incorrectly cites to Section 3(i) instead of Section 3(h). NOM Options 4, Section 6(b) incorrectly cites to Section 3(i) instead of Section 3(h). NOM Options 4, Section 6(b)(i) incorrectly cites to Supplementary Material .03(d) instead of Supplementary Material .02(d). This paragraph also uses the term ‘‘options’’ instead of ‘‘option.’’ 5 See NOM Options 4, Section 3(c)(2). NOM utilizes citations to Options 4, Section 3(b)(1) and Options 4, Section 3(b)(2) instead of simply citing to ‘‘this Rules’’ as is the case with ISE Options 4, Section 3(c)(2). Other examples include NOM Options 4, Section 3(c)(3) which cites to Options 4, Section 3(b)(4), NOM Options 4, Section 3(c)(4)(B)(ii) which cites to Options 4, Section 3(b)(5)(i). E:\FR\FM\21SEN1.SGM 21SEN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 86, Number 180 (Tuesday, September 21, 2021)]
[Notices]
[Pages 52530-52534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20332]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-93001; File No. SR-NYSE-2021-50]


Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Amend Its Price List

September 15, 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 August 31, 2021, New York Stock Exchange LLC (``NYSE'' 
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.
---------------------------------------------------------------------------

    \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 amend its Price List to extend the end of 
the Decommission Period from August 2021 to September 2021. The 
Exchange proposes to implement these changes to its Price List 
effective September 1, 2021. 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 purpose of this filing is to provide additional time for member 
organizations to finalize their transition from older to newer and more 
efficient Pillar technology. The Exchange is not proposing to adjust 
the amount of the port fees or the fees charged to offset the 
Exchange's continuing costs of supporting legacy ports, which will 
remain at the current level for all market participants.
    Effective July 3, 2019, the Exchange introduced transition pricing 
designed to provide member organizations an extended transition period 
to connect to the Exchange using Pillar technology with no fee 
increase. Specifically, the Exchange (1) adopted a cap on monthly fees 
for the use of certain ports connecting to the Exchange for the billing 
months July 2019 through March 2020 (the ``Transition Period''); (2) 
adopted a Decommission Extension Fee applicable for the billing months 
April 2020 through September 2020 (the ``Decommission Period'') for 
legacy port connections; and (3) prorated the monthly fee for certain 
ports activated after July 1, 2019, effective April 1, 2020.\4\
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 86360 (July 11, 
2019), 84 FR 34210 (July 17, 2019) (SR-NYSE-2019-39).
---------------------------------------------------------------------------

    Effective March 2, 2020, the Exchange (1) extended the end of the 
Transition Period from March 2020 to August 2020 for member 
organizations to transition to the utilization of ports that connect to 
the Exchange using Pillar technology; (2) shortened the Decommission 
Period from six months (April 2020-September 2020) to four months 
(September-December 2020); (3) extended the effective date that the 
Exchange would prorate the monthly fee for certain ports activated on 
or after July 1, 2019 from April 1, 2020 to September 1, 2020; and (4) 
revised the fees charged for legacy port connections during the 
Decommission Period.\5\
---------------------------------------------------------------------------

    \5\ See Securities Exchange Act Release No. 88373 (March 12, 
2020), 85 FR 15533 (March 18, 2020) (SR-NYSE-2020-14).

---------------------------------------------------------------------------

[[Page 52531]]

    Effective August 1, 2020, the Exchange (1) extended the end of the 
Transition Period from August 2020 to October 2020; (2) extended the 
beginning of the Decommission Period from September 2020 to November 
2020 and the end of the Decommission Period from December 2020 to 
February 2021; and (3) extended the effective date that the Exchange 
would prorate the monthly fee for ports activated on or after July 1, 
2019 from September 1, 2020 to November 1, 2020.\6\
---------------------------------------------------------------------------

    \6\ See Securities Exchange Act Release No. 89591 (August 18, 
2020), 85 FR 52159 (August 24, 2020) (SR-NYSE-2020-14).
---------------------------------------------------------------------------

    Effective October 1, 2020, the Exchange (1) extended the end of the 
Transition Period from October 2020 to December 2020; (2) extended the 
beginning of the Decommission Period from November 2020 to January 2021 
and the end of the Decommission Period from February 2021 to April 
2021; and (3) extended the effective date that the Exchange would 
prorate the monthly fee for ports activated on or after July 1, 2019 
from November 1, 2020 to January 1, 2021.\7\
---------------------------------------------------------------------------

    \7\ See Securities Exchange Act Release No. 90180 (October 14, 
2020), 85 FR 66612 (October 20, 2020) (SR-NYSE-2020-82).
---------------------------------------------------------------------------

    Effective December 1, 2020, the Exchange (1) extended the end of 
the Transition Period from December 2020 to February 2021; (2) extended 
the beginning of the Decommission Period from January 2021 to March 
2021 and the end of the Decommission Period from April 2021 to June 
2021; and (3) extended the effective date that the Exchange would 
prorate the monthly fee for ports activated on or after July 1, 2019 
from January 1, 2021 to March 1, 2021.\8\
---------------------------------------------------------------------------

    \8\ See Securities Exchange Act Release No. 90661 (December 14, 
2020), 85 FR 82532 (December 18, 2020) (SR-NYSE-2020-99).
---------------------------------------------------------------------------

    Effective June 10, 2021, the Exchange extended the end of the 
Decommission Period two months from June 2021 to August 2021.\9\
---------------------------------------------------------------------------

    \9\ See Securities Exchange Act Release No. 92234 (June 22, 
2021), 86 FR 34080 (June 28, 2021) (SR-NYSE-2021-36).
---------------------------------------------------------------------------

    The Exchange proposes to extend the end of the Decommission Period 
one month from August 2021 to September 2021 in order to allow member 
organizations that did not complete the transition during the 
Transition Period the ability to choose to continue using Phase I ports 
until September 2021.
    The Exchange proposes to implement these changes to its Price List 
effective September 1, 2021.
Competitive Environment
    The Exchange operates in a highly competitive market. The 
Commission has repeatedly expressed its preference for competition over 
regulatory intervention in determining prices, products, and services 
in the securities markets. 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.'' \10\
---------------------------------------------------------------------------

    \10\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37495, 37499 (June 29, 2005) (S7-10-04) (Final Rule) 
(``Regulation NMS'').
---------------------------------------------------------------------------

    While Regulation NMS has enhanced competition, it has also fostered 
a ``fragmented'' market structure where trading in a single stock can 
occur across multiple trading centers. When multiple trading centers 
compete for order flow in the same stock, the Commission has recognized 
that ``such competition can lead to the fragmentation of order flow in 
that stock.'' \11\ Indeed, equity trading is currently dispersed across 
16 exchanges,\12\ 31 alternative trading systems,\13\ and numerous 
broker-dealer internalizers and wholesalers, all competing for order 
flow. Based on publicly available information, no single exchange has 
more than 17% market share.\14\ The Exchange believes that the ever-
shifting market share among the exchanges from month to month 
demonstrates that market participants can shift order flow, or 
discontinue or reduce use of certain categories of products, including 
ports, in response to fee changes. Accordingly, the Exchange's fees, 
including port fees, are reasonably constrained by competitive 
alternatives and market participants can readily trade on competing 
venues if they deem pricing levels at those other venues to be more 
favorable.
---------------------------------------------------------------------------

    \11\ See Securities Exchange Act Release No. 61358, 75 FR 3594, 
3597 (January 21, 2010) (File No. S7-02-10) (Concept Release on 
Equity Market Structure).
    \12\ See Cboe Global Markets, U.S. Equities Market Volume 
Summary, available at https://markets.cboe.com/us/equities/market_share/. See generally https://www.sec.gov/fast-answers/divisionsmarketregmrexchangesshtml.html.
    \13\ See FINRA ATS Transparency Data, available at https://otctransparency.finra.org/otctransparency/AtsIssueData. A list of 
alternative trading systems registered with the Commission is 
available at https://www.sec.gov/foia/docs/atslist.htm.
    \14\ See Cboe Global Markets U.S. Equities Market Volume 
Summary, available at https://markets.cboe.com/us/equities/market_share/.
---------------------------------------------------------------------------

    The Exchange is proposing these changes in the context of a 
competitive environment in which market participants can and do shift 
order flow, or discontinue or reduce use of certain categories of 
products, in response to fee changes. Because ports are used by member 
organizations to trade electronically on the Exchange, fees associated 
with ports are subject to these same competitive forces. The Exchange 
believes that the proposal represents a reasonable attempt to provide 
member organizations with additional time to finalize an orderly 
transition to upgraded technology.
Proposed Rule Change
    Member organizations enter orders and order instructions, and 
receive information from the Exchange, by establishing a connection to 
a gateway that uses communication protocols that map to the order types 
and modifiers described in Exchange rules. These gateway connections, 
also known as logical port connections, are referred to as ``ports'' on 
the Exchange's Price List. Legacy ports connect with the Exchange via a 
Common Customer Gateway (known as ``CCG'') that accesses its equity 
trading systems (``Phase I ports''). Beginning July 1, 2019, the 
Exchange began making available ports using Pillar gateways to its 
member organizations (``Phase II ports'').
    Currently, member organizations that have not transitioned to Phase 
II ports and are still utilizing Phase I ports during the billing 
months of March 2021 through August 2021 (i.e., the Decommission 
Period), would, in addition to the current port fees, be charged a 
Decommission Extension Fee of $1,000 per port per month, increasing by 
$1,000 per port for each month for any ports that communicate using 
Pillar phase I protocols. As per the Price List, ports using Pillar 
phase I protocols would no longer be available beginning September 1, 
2021.
    The Exchange proposes that the Decommission Period would end one 
month later, in September 2021. As proposed, the Price List would also 
be amended to provide that ports using Pillar phase I protocols would 
no longer be available beginning October 1, 2021.
    As noted above, the Exchange believes that, to the extent that 
member organizations do not complete the transition during the 
Transition Period, the proposed rule change will offer member 
organizations the ability to choose to continue using Phase I ports 
until September 2021.
    The proposed changes are not otherwise intended to address any 
other issues, and the Exchange is not aware of any problems that member 
organizations would have in complying with the proposed change.

[[Page 52532]]

2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\15\ in general, and furthers the 
objectives of Sections 6(b)(4) and 6(b)(5) of the Act,\16\ in 
particular, because it provides for the equitable allocation of 
reasonable dues, fees, and other charges among its members, issuers and 
other persons using its facilities and does not unfairly discriminate 
between customers, issuers, brokers or dealers.
---------------------------------------------------------------------------

    \15\ 15 U.S.C. 78f(b).
    \16\ 15 U.S.C. 78f(b)(4) & (5).
---------------------------------------------------------------------------

The Proposed Change Is Reasonable
    The Exchange operates in a highly competitive market. The 
Commission has repeatedly expressed its preference for competition over 
regulatory intervention in determining prices, products, and services 
in the securities markets. 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.'' \17\
---------------------------------------------------------------------------

    \17\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37495, 37499 (June 29, 2005) (S7-10-04) (Final Rule) 
(``Regulation NMS'').
---------------------------------------------------------------------------

    While Regulation NMS has enhanced competition, it has also fostered 
a ``fragmented'' market structure where trading in a single stock can 
occur across multiple trading centers. When multiple trading centers 
compete for order flow in the same stock, the Commission has recognized 
that ``such competition can lead to the fragmentation of order flow in 
that stock.'' \18\ Indeed, equity trading is currently dispersed across 
16 exchanges,\19\ 31 alternative trading systems,\20\ and numerous 
broker-dealer internalizers and wholesalers, all competing for order 
flow. Based on publicly available information, no single exchange has 
more than 17% market share.\21\ The Exchange believes that the ever-
shifting market share among the exchanges from month to month 
demonstrates that market participants can shift order flow, or 
discontinue or reduce use of certain categories of products, including 
ports, in response to fee changes. Accordingly, the Exchange's fees, 
including port fees, are reasonably constrained by competitive 
alternatives and market participants can readily trade on competing 
venues if they deem pricing levels at those other venues to be more 
favorable.
---------------------------------------------------------------------------

    \18\ See Securities Exchange Act Release No. 61358, 75 FR 3594, 
3597 (January 21, 2010) (File No. S7-02-10) (Concept Release on 
Equity Market Structure).
    \19\ See Cboe Global Markets, U.S. Equities Market Volume 
Summary, available at https://markets.cboe.com/us/equities/market_share/. See generally https://www.sec.gov/fast-answers/divisionsmarketregmrexchangesshtml.html.
    \20\ See FINRA ATS Transparency Data, available at https://otctransparency.finra.org/otctransparency/AtsIssueData. A list of 
alternative trading systems registered with the Commission is 
available at https://www.sec.gov/foia/docs/atslist.htm.
    \21\ See Cboe Global Markets U.S. Equities Market Volume 
Summary, available at https://markets.cboe.com/us/equities/market_share/.
---------------------------------------------------------------------------

    The Exchange believes that the ever-shifting market share among the 
exchanges from month to month demonstrates that market participants can 
shift order flow, or discontinue or reduce use of certain categories of 
products, including ports, in response to fee changes. Accordingly, the 
Exchange's fees, including port fees, are reasonably constrained by 
competitive alternatives and market participants can readily trade on 
competing venues if they deem pricing levels at those other venues to 
be more favorable.
    If a particular exchange charges excessive fees for connectivity, 
impacted members and non-members may opt to terminate their 
connectivity arrangements with that exchange, and adopt a possible 
range of alternative strategies, including routing to the applicable 
exchange through another participant or market center or taking that 
exchange's data indirectly. Accordingly, if the Exchange charges 
excessive fees, it would stand to lose not only connectivity revenues 
but also revenues associated with the execution of orders routed to it, 
and, to the extent applicable, market data revenues. The Exchange 
believes that this competitive dynamic imposes powerful restraints on 
the ability of any exchange to charge unreasonable fees for 
connectivity.
    Given this competitive environment, the proposal represents a fair 
and reasonable attempt to provide member organizations with additional 
time to finalize an orderly transition to upgraded technology. As of 
August 2021, 4.7% of legacy ports have not been cancelled. The pricing 
is designed so that these few remaining member organizations utilizing 
legacy ports would pay for the Exchange to continue to support their 
Phase I ports through September 2021.
The Proposal Is an Equitable Allocation of Fees
    The Exchange believes its proposal equitably allocates its fees 
among its market participants. The Exchange is not proposing to adjust 
the amount of the port fees or the fees charged fees to offset the 
Exchange's continuing costs of supporting legacy ports, which will 
remain at the current level for all market participants. Rather, the 
proposal would provide additional time for member organizations to 
transition from older to newer and more efficient Pillar technology and 
would charge the same fee for those few member organizations that 
choose not to transition to Phase II ports during the extended 
Transition Period.
    The proposal constitutes an equitable allocation of fees because 
all similarly situated member organizations and other market 
participants that, following the transition period, choose to connect 
to the Exchange through the use of Phase I ports during the 
Decommission Period would continue to be charged the same, unchanged 
Decommission Extension Fee.
The Proposal Is Not Unfairly Discriminatory
    The Exchange believes that the proposal is not unfairly 
discriminatory. In the prevailing competitive environment, member 
organizations are free to disfavor the Exchange's pricing if they 
believe that alternatives offer them better value, and are free to 
discontinue to connect to the Exchange through its ports. As noted, the 
Exchange is offering upgraded connections in an effort to keep pace 
with changes in the industry and evolving customer needs as new 
technologies emerge and products continue to develop and change.
    The proposal neither targets nor will it have a disparate impact on 
any particular category of market participant. The Exchange believes 
that the proposal does not permit unfair discrimination because the 
proposal would be applied to all similarly situated member 
organizations and other market participants would be charged the same 
rates, which will remain unchanged.
    The Exchange believes that the proposal does not permit unfair 
discrimination because the Decommission Extension Fee would apply 
equally to all member organizations that require additional time to 
complete their transition to the Phase II ports. At any point during 
the Decommission Period, a member organization could cease to be 
subject to the Decommission Fee by expediting its

[[Page 52533]]

transition to the new ports. The Decommission Fee would thus apply 
equally to all member organizations during the proposed extended 
Decommission Period that choose to continue to connect to the Exchange 
through the use of legacy ports. As noted, to the extent a member 
organization continues to use ports activated before July 1, 2019 to 
connect to the Exchange during the proposed extended Decommission 
Period, the Exchange believes it is fair, equitable and not unfairly 
discriminatory to continue to charge flat fees for such ports until 
such time that connection to the Exchange through the use of old ports 
is no longer available beginning, as proposed, on October 1, 2021.
    Finally, the Exchange believes that it is subject to significant 
competitive forces, as described below in the Exchange's statement 
regarding the burden on competition.
    For the foregoing reasons, the Exchange believes that the proposal 
is consistent with the Act.

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

    In accordance with Section 6(b)(8) of the Act,\22\ the Exchange 
believes that the proposed rule change would not impose any burden on 
competition that is not necessary or appropriate in furtherance of the 
purposes of the Act. Instead, as discussed above, the Exchange believes 
that the proposed changes would provide additional time for member 
organizations to finalize the transition from older to newer and more 
efficient Pillar technology with no fee increase and offset the 
Exchange's continuing costs of supporting the Phase I ports for the few 
firms that do not transition to the new ports during the longer 
transition period without any change to the fees currently charged by 
the Exchange for the use of ports to connect to the Exchange's trading 
systems.
---------------------------------------------------------------------------

    \22\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    Intramarket Competition. The Exchange does not believe the proposed 
rule change would impose any burden on intramarket competition that is 
not necessary or appropriate because it would apply to all member 
organizations equally that connect to the Exchange. All member 
organizations, regardless of size, that did not complete the transition 
to Phase II ports by the end of February 2021 date are subject to the 
Decommission Fee on an equal basis and would continue to be subject to 
the fee on an equal basis for the proposed additional two months if 
they do not complete the transition to Phase II ports. As noted, as of 
August 2021, 4.7% of legacy ports have not been cancelled. The pricing 
is designed so that these few remaining member organizations utilizing 
legacy ports would pay for the Exchange to continue to support their 
Phase I ports through August 2021.
    Intermarket Competition. The Exchange does not believe the proposed 
rule change would impose any burden on intermarket competition that is 
not necessary or appropriate because the Exchange operates in a highly 
competitive market in which market participants can readily choose to 
send their orders to other exchange and off-exchange venues if they 
deem fee levels at those other venues to be more favorable. The 
Exchange believes that fees for connectivity are constrained by the 
robust competition for order flow among exchanges and non-exchange 
markets.
    As noted, the no single exchange has more than 17% of the market 
share of executed volume of equity trades (whether excluding or 
including auction volume).\23\ The Exchange believes that the ever-
shifting market share among the exchanges from month to month 
demonstrates that market participants can shift order flow, or 
discontinue or reduce use of certain categories of products, including 
ports, in response to fee changes. Accordingly, the Exchange's fees, 
including port fees, are reasonably constrained by competitive 
alternatives and market participants can readily trade on competing 
venues if they deem pricing levels at those other venues to be more 
favorable.
---------------------------------------------------------------------------

    \23\ See Cboe Global Markets U.S. Equities Market Volume 
Summary, available at https://markets.cboe.com/us/equities/market_share/.
---------------------------------------------------------------------------

    The Exchange is proposing these changes in the context of a 
competitive environment in which market participants can and do shift 
order flow, or discontinue or reduce use of certain categories of 
products, in response to fee changes. Because ports are used by member 
organizations to trade electronically on the Exchange, fees associated 
with ports are subject to these same competitive forces. The Exchange 
therefore believes that the proposal would not impose an undue burden 
on intermarket competition because the purpose of this filing is not to 
change the rates charged for ports or to offset the Exchange's 
continuing costs of supporting legacy ports but rather to provide 
member organizations with more time to effect an orderly transition to 
upgraded technology without needing to incur any additional costs.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the 
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The foregoing rule change is effective upon filing pursuant to 
Section 19(b)(3)(A) \24\ of the Act and subparagraph (f)(2) of Rule 
19b-4 \25\ thereunder, because it establishes a due, fee, or other 
charge imposed by the Exchange.
---------------------------------------------------------------------------

    \24\ 15 U.S.C. 78s(b)(3)(A).
    \25\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission shall institute proceedings under 
Section 19(b)(2)(B) \26\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \26\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

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-NYSE-2021-50 on the subject line.

Paper Comments

     Send paper comments in triplicate to: Secretary, 
Securities and Exchange Commission, 100 F Street NE, Washington, DC 
20549-1090.
All submissions should refer to File Number SR-NYSE-2021-50. 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/

[[Page 52534]]

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-NYSE-2021-50 and should be 
submitted on or before October 12, 2021.
---------------------------------------------------------------------------

    \27\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\27\
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-20332 Filed 9-20-21; 8:45 am]
BILLING CODE 8011-01-P

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.