Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Update the Procedures for the Allocation of Cabinets and Power to Its Colocated Users, 66351-66354 [2021-25354]
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Federal Register / Vol. 86, No. 222 / Monday, November 22, 2021 / Notices
TABLE I–1—PROPOSED PRICE
CHANGES—Continued
Average
price
increase
(percent)
Product name
Retail ....................................................
Commercial Base ................................
Commercial Plus ..................................
Priority Mail .............................................
Retail ....................................................
Commercial Base ................................
Commercial Plus ..................................
Parcel Select 3 .........................................
Destination-Entered non-Lightweight ...
Destination Delivery Unit .....................
Destination Sectional Center Facility ...
Destination Network Distribution Center .....................................................
Lightweight ...........................................
Ground .................................................
Parcel Return Service .............................
Return Sectional Center Facility ..........
Return Delivery Unit ............................
First-Class Package Service ...................
Retail ....................................................
Commercial ..........................................
Retail Ground ..........................................
2.9
4.3
4.3
3.1
4.5
2.7
1.2
5.5
¥11.1
6.1
¥10.4
¥23.1
7.4
¥12.1
4.9
4.9
4.9
7.6
8.4
7.4
¥7.4
Domestic Extra Services
Premium Forwarding Service ..................
Adult Signature Service:
Basic ....................................................
Person-Specific ....................................
Competitive Post Office Box ...................
Package Intercept Service ......................
Premium Data Retention and Retrieval
Service .................................................
5.1
23.3
22.4
18.2
4.6
¥51.5
International Competitive Products
Global Express Guaranteed ....................
Priority Mail Express International ..........
Priority Mail International ........................
International Priority Airmail ....................
International Priority Airmail M-Bags ...
International Surface Air Lift ....................
International Surface Air Lift M-Bags ..
Airmail M-Bags ....................................
First-Class Package International Service ........................................................
2.3
3.2
3.7
4.9
0.0
8.2
2.9
5.0
4.2
International Ancillary Services and Special
Services
International Ancillary Services ...............
International Postal Money Orders and
Money Transfer Service ......................
5.0
15.8
Source: See Governors’ Decision No. 21–6 at 2–6.
jspears on DSK121TN23PROD with NOTICES1
II. Initial Administrative Actions
The Commission establishes Docket
No. CP2022–22 to consider the Postal
Service’s Notice. Interested persons may
express views and offer comments on
whether the planned changes are
consistent with 39 U.S.C. 3632, 3633,
and 3642, 39 CFR part 3035, and 39 CFR
3 In a separate proceeding to test a new Market
Dominant product, the Postal Service has proposed
to offer ‘‘USPS Connect Local Mail’’ for letter or
flat-shaped mailpieces weighing up to 13 ounces.
See Docket No. MT2022–1, United States Postal
Service Notice of Market Test of Experimental
Product—USPS Connect Local Mail, November 10,
2021. Any comments on the Postal Service’s plan
to test the letter and flat-shaped Market Dominant
product ‘‘USPS Connect Local Mail’’ should be filed
in Docket No. MT2022–1.
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18:30 Nov 19, 2021
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3040 subparts B and E. Comments are
due no later than December 7, 2021. For
specific details of the planned price
changes, interested persons are
encouraged to review the Notice, which
is available on the Commission’s
website at www.prc.gov.
Pursuant to 39 U.S.C. 505,
Christopher C. Mohr is appointed to
serve as Public Representative to
represent the interests of the general
public in this docket.
III. Ordering Paragraphs
It is ordered:
1. The Commission establishes Docket
No. CP2022–22 to provide interested
persons an opportunity to express views
and offer comments on whether the
planned changes are consistent with 39
U.S.C. 3632, 3633, and 3642, 39 CFR
part 3035, and 39 CFR 3040 subparts B
and E.
2. Comments are due no later than
December 7, 2021.
3. Pursuant to 39 U.S.C. 505, the
Commission appoints Christopher C.
Mohr to serve as an officer of the
Commission (Public Representative) to
represent the interests of the general
public in this docket.
4. The Secretary shall arrange for
publication of this Order in the Federal
Register.
By the Commission.
Erica A. Barker,
Secretary.
[FR Doc. 2021–25342 Filed 11–19–21; 8:45 am]
BILLING CODE 7710–FW–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–93588; File No. SR–NYSE–
2021–66]
Self-Regulatory Organizations; New
York Stock Exchange LLC; Notice of
Filing and Immediate Effectiveness of
Proposed Rule Change To Update the
Procedures for the Allocation of
Cabinets and Power to Its Colocated
Users
November 16, 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 November
3, 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
1 15
U.S.C. 78s(b)(1).
U.S.C. 78a.
3 17 CFR 240.19b–4.
2 15
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66351
Items I and II below, which Items have
been prepared by the self-regulatory
organization. The Commission is
publishing this notice to solicit
comments on the proposed rule change
from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to update the
procedures for the allocation of cabinets
and power to its colocated 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 update the
procedures for the allocation of cabinets
and power to its colocated 4 Users.5
In December 2020, the Exchange
established procedures for the allocation
of cabinets in colocation should it
4 The Exchange initially filed rule changes
relating to its colocation services with the Securities
and Exchange Commission (‘‘Commission’’) in
2010. See Securities Exchange Act Release No.
62960 (September 21, 2010), 75 FR 59310
(September 27, 2010) (SR–NYSE–2010–56).
5 For purposes of the Exchange’s colocation
services, a ‘‘User’’ means any market participant
that requests to receive colocation services directly
from the Exchange. See Securities Exchange Act
Release No. 76008 (September 29, 2015), 80 FR
60190 (October 5, 2015) (SR–NYSE–2015–40). As
specified in the New York Stock Exchange Price
List (‘‘Price List’’), a User that incurs colocation fees
for a particular colocation service pursuant thereto
would not be subject to colocation fees for the same
colocation service charged by the Exchange’s
affiliates NYSE American 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–NYSEAMER–2021–42; SR–NYSEArca–
2021–96; SR–NYSECHX–2021–16; SR–NYSENAT–
2021–22.
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66352
Federal Register / Vol. 86, No. 222 / Monday, November 22, 2021 / Notices
become needed.6 In April 2021, the
Exchange added procedures for the
allocation of power in colocation
(together with the cabinet procedures,
the ‘‘Existing Procedures’’).7
Proposed Changes to the Waitlist
Procedures
jspears on DSK121TN23PROD with NOTICES1
Pursuant to the Existing Procedures, a
Combined Waitlist is currently in effect.
To be placed on the Combined Waitlist,
a User must submit an order that
complies with the Combined Limits—
that is, the order must be for no more
than 32 kW, and no more than four
dedicated cabinets with standard power
allocations of 4 kW or 8 kW as part of
the 32 kW total.8
The Existing Procedures provide that
‘‘[a] User may only have one order for
new cabinets and/or additional power
on the Combined Waitlist at a time
. . . .’’ 9 The Exchange has become
aware that some Users are attempting to
circumvent this provision by submitting
additional orders in the names of
entities affiliated with the User.10
The Exchange believes that such
actions by Users are contrary to the
objectives of the Existing Procedures,
which were intended to foreclose Users
from obtaining a greater portion of the
cabinets and power available than the
portion defined by the Cabinet Limits
and Combined Limits. Such actions by
Users could result in a distribution of
cabinets and power that is contrary to
the intent of the Cabinet Limits and
Combined Limits, with Users that are
willing to submit multiple orders in the
names of their affiliates obtaining more
cabinets and power than the Cabinet
Limits and Combined Limits allow, to
the detriment of other Users seeking to
purchase cabinets or power.
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).
7 See Securities Exchange Act Release No. 91515
(April 8, 2021), 86 FR 19674 (April 14, 2021) (SR–
NYSE–2021–12, SR–NYSEAMER–2021–08,
SRNYSENAT–2021–03, SR–NYSEArca–2021–11,
and SR–NYSECHX–2021–02). The Existing
Procedures are set forth in General Notes 7 and 8
under ‘‘Co-location Fees’’ in the Price List.
8 See Price List, Co-Location Fees, General Notes
7 and 8.
9 See Price List, Co-Location Fees, General Note
8(b).
10 For example, a User that wants 64 kW could
submit an order for 32 kW to the Combined
Waitlist, and then have an affiliated entity submit
a second order to the Combined Waitlist for an
additional 32 kW. Once the affiliated entity
obtained its 32 kW, it could assign the power to the
User. As a result, the User would obtain two times
more power than the Combined Limit would allow.
The Exchange has been informed that at least one
User has contemplated utilizing affiliates for this
purpose.
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To address this issue, the Exchange
proposes to amend the Existing
Procedures to add to General Note 8(b)
that ‘‘[w]hile a User is on the Combined
Waitlist, no Affiliate of such User may
also be on the Combined Waitlist.’’ The
Exchange similarly proposes to amend
General Note 8(a), regarding the Cabinet
Waitlist, to provide that ‘‘[w]hile a User
is on the Cabinet Waitlist, no Affiliate
of such User may also be on the Cabinet
Waitlist.’’ The term ‘‘Affiliate’’ is
already defined in the Co-Location Fees
section of the Price List as follows: ‘‘An
‘Affiliate’ of a User is any other User or
Hosted Customer that is under 50% or
greater common ownership or control of
the first User.’’ This definition of
‘‘Affiliate’’ was introduced in
connection with the Exchange’s filing
regarding partial cabinet solutions, and
the Exchange believes that the
definition is appropriate to also use in
the present context.11
Proposed Changes to the Purchasing
Limit Procedures
The Exchange also proposes to amend
the Existing Procedures regarding
Cabinet and Power Purchasing Limits in
General Note 7 to prevent Users from
circumventing the Cabinet Limits and
Combined Limits in a similar fashion
when they are in effect but a waitlist is
not. The Existing Procedures provide
that when the Cabinet Limit or
Combined Limits are in effect, a User
will have to wait 30 days from the date
of the User’s signed order before
purchasing cabinets or power again. The
Exchange proposes to amend such
provisions to specify that this 30-day
limitation applies not just to Users that
have already purchased cabinets or
power subject to the applicable
Purchasing Limit, but also to any
Affiliate of such User, so long as the
applicable Purchasing Limit remains in
effect.
General
The proposed rule 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 is applied
uniformly to all Users. The proposed
change is not otherwise intended to
address any other issues relating to
colocation services and/or related fees,
and the Exchange is not aware of any
11 To the extent that the Combined Waitlist
currently includes orders submitted by two or more
Users that are Affiliates, the Exchange intends to
remove all but the first of such Affiliates’ orders
from the Combined Waitlist upon this proposed
rule change becoming operative.
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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,12 in general, and
with Section 6(b)(5),13 in particular,
because it is designed to prevent
fraudulent and manipulative acts and
practices, to promote just and equitable
principles of trade, to foster cooperation
and coordination with persons engaged
in facilitating transactions in securities,
to remove impediments to and perfect
the mechanism of a free and open
market and a national market system,
and, in general, to protect investors and
the public interest, and because it is not
designed to permit unfair
discrimination between customers,
issuers, brokers, or dealers.
The Exchange believes that the
proposed rule change would prevent
fraudulent and manipulative acts and
practices, and would remove
impediments to and perfect the
mechanism of a free and open market
and a national market system, and, in
general, protect investors and the public
interest, because it would prevent a
User from obtaining a greater share of
cabinets and power than the Existing
Procedures intended, and thereby
facilitate a more equitable distribution
of cabinets and power.
As noted above, the Exchange has
become aware that some Users are
attempting to circumvent the Combined
Waitlist by submitting additional orders
in the names of entities affiliated with
the User, in order to avoid the Existing
Procedures’ prohibition against a User
having more than one order on the
Combined Waitlist at the same time.
The Exchange believes that such actions
by Users are contrary to the objectives
of the Existing Procedures, which were
intended to foreclose Users from
obtaining a greater portion of the
cabinets and power available than the
portion defined by the Cabinet Limits
and Combined Limits. Unless
prohibited, such actions by Users could
result in an inequitable distribution of
cabinets and power, with Users that are
willing to submit multiple orders in the
names of their affiliates obtaining more
than their intended share of cabinets
and power, to the detriment of other
Users seeking to purchase cabinets and
power. The proposed rule change to
General Note 8 would address this
concern.
The Exchange believes that the
proposed amendments to the Existing
12 15
13 15
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U.S.C. 78f(b).
U.S.C. 78f(b)(5).
22NON1
Federal Register / Vol. 86, No. 222 / Monday, November 22, 2021 / Notices
Procedures regarding Cabinet and Power
Purchasing Limits in General Note 7
would similarly prevent Users from
circumventing the Cabinet Limits and
Combined Limits when there is no
waitlist in effect. The Exchange believes
that having both Users and their
Affiliates wait 30 days from the date of
the signed order to purchase new
cabinets or power would foreclose
Users’ ability to use their Affiliates to
obtain a greater portion of the cabinets
and power available. In this way, the
Exchange believes that that the
proposed amendments to General Note
7 would prevent fraudulent and
manipulative acts and practices, and
would remove impediments to and
perfect the mechanism of a free and
open market and a national market
system, and, in general, protect
investors and the public interest.
The proposed rule change would not
unfairly discriminate between or among
market participants, as it would apply to
all types and sizes of market
participants equally.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
jspears on DSK121TN23PROD with NOTICES1
In accordance with Section 6(b)(8) of
the Act,14 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. Rather, the
proposed rule change is designed to
prevent Users from obtaining an unfair
competitive advantage by submitting
multiple orders in the names of
affiliated entities, in order to avoid the
Existing Procedures’ prohibition against
a User having more than one order on
the Cabinet Waitlist or the Combined
Waitlist at the same time and to obtain
a greater portion of the cabinets and
power available than the portion
defined by the Cabinet Limits and
Combined Limits. The proposed rule
change would prevent a User from
obtaining this unfair competitive
advantage, thereby facilitating a more
equitable distribution of cabinets and
power.
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.
14 15
U.S.C. 78f(b)(8).
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III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
The Exchange has filed the proposed
rule change pursuant to Section
19(b)(3)(A)(iii) of the Act 15 and Rule
19b–4(f)(6) thereunder.16 Because the
proposed rule change does not: (i)
Significantly affect the protection of
investors or the public interest; (ii)
impose any significant burden on
competition; and (iii) become operative
prior to 30 days from the date on which
it was filed, or such shorter time as the
Commission may designate, if
consistent with the protection of
investors and the public interest, the
proposed rule change has become
effective pursuant to Section 19(b)(3)(A)
of the Act and Rule 19b–4(f)(6)(iii)
thereunder.17
A proposed rule change filed under
Rule 19b–4(f)(6) 18 normally does not
become operative prior to 30 days after
the date of the filing. However, pursuant
to Rule 19b–4(f)(6)(iii),19 the
Commission may designate a shorter
time if such action is consistent with the
protection of investors and the public
interest. The Exchange requests that the
Commission waive the 30-day operative
delay so that the proposal may become
operative immediately upon filing. The
Exchange believes that implementing
the proposed rule change as soon as
possible would allow the Exchange to
prevent Users from unfairly obtaining
more cabinets or power than the
Existing Procedures were intended to
provide. The Commission believes that
waiver of the operative delay is
consistent with the protection of
investors and the public interest.
Accordingly, the Commission waives
the 30-day operative delay and
designates the proposed rule change
operative upon filing.20
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
15 15
U.S.C. 78s(b)(3)(A)(iii).
CFR 240.19b–4(f)(6).
17 17 CFR 240.19b–4(f)(6). In addition, Rule 19b–
4(f)(6) requires the Exchange to give the
Commission written notice of its intent to file the
proposed rule change, along with a brief description
and text of the proposed rule change, at least five
business days prior to the date of filing of the
proposed rule change, or such shorter time as
designated by the Commission. The Exchange has
satisfied this requirement.
18 17 CFR 240.19b–4(f)(6).
19 17 CFR 240.19b–4(f)(6)(iii).
20 For purposes only of waiving the 30-day
operative delay, the Commission has considered the
proposed rule’s impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
16 17
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66353
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) 21 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–2021–66 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–2021–66. 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
21 15
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U.S.C. 78s(b)(2)(B).
22NON1
66354
Federal Register / Vol. 86, No. 222 / Monday, November 22, 2021 / Notices
submit only information that you wish
to make available publicly. All
submissions should refer to File
Number SR–NYSE–2021–66 and should
be submitted on or before December 13,
2021.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.22
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021–25354 Filed 11–19–21; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–93589; File No. SR–
NYSEAMER–2021–42]
Self-Regulatory Organizations; NYSE
American LLC; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change To Update the
Procedures for the Allocation of
Cabinets and Power to Its Colocated
Users
November 16, 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 November
3, 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 and II below, which Items have
been prepared by the self-regulatory
organization. The Commission is
publishing this notice to solicit
comments on the proposed rule change
from interested persons.
jspears on DSK121TN23PROD with NOTICES1
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to update the
procedures for the allocation of cabinets
and power to its colocated 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,
22 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 15 U.S.C. 78a.
3 17 CFR 240.19b–4.
1 15
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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 4
procedures for the allocation of power
to its co-located 5 Users.6
In December 2020, the Exchange
established procedures for the allocation
of cabinets in colocation should it
become needed.7 In April 2021, the
Exchange added procedures for the
allocation of power in colocation
(together with the cabinet procedures,
the ‘‘Existing Procedures’’).8
Proposed Changes to the Waitlist
Procedures
Pursuant to the Existing Procedures, a
Combined Waitlist is currently in effect.
4 The Commission notes that the Exchange
proposes to update previously established
procedures for allocation of cabinets and power to
its colocated Users.
5 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).
6 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–2021–66; SR–NYSEArca–
2021–96; SR–NYSECHX–2021–16; SR–NYSENAT–
2021–22.
7 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).
8 See Securities Exchange Act Release No. 91515
(April 8, 2021), 86 FR 19674 (April 14, 2021) (SR–
NYSE–2021–12, SR–NYSEAMER–2021–08,
SRNYSENAT–2021–03, SR–NYSEArca–2021–11,
and SR–NYSECHX–2021–02). The Existing
Procedures are set forth in General Notes 7 and 8
under ‘‘Co-location Fees’’ in the Price List and Fee
Schedule.
PO 00000
Frm 00086
Fmt 4703
Sfmt 4703
To be placed on the Combined Waitlist,
a User must submit an order that
complies with the Combined Limits—
that is, the order must be for no more
than 32 kW, and no more than four
dedicated cabinets with standard power
allocations of 4 kW or 8 kW as part of
the 32 kW total.9
The Existing Procedures provide that
‘‘[a] User may only have one order for
new cabinets and/or additional power
on the Combined Waitlist at a time
. . . .’’ 10 The Exchange has become
aware that some Users are attempting to
circumvent this provision by submitting
additional orders in the names of
entities affiliated with the User.11
The Exchange believes that such
actions by Users are contrary to the
objectives of the Existing Procedures,
which were intended to foreclose Users
from obtaining a greater portion of the
cabinets and power available than the
portion defined by the Cabinet Limits
and Combined Limits. Such actions by
Users could result in a distribution of
cabinets and power that is contrary to
the intent of the Cabinet Limits and
Combined Limits, with Users that are
willing to submit multiple orders in the
names of their affiliates obtaining more
cabinets and power than the Cabinet
Limits and Combined Limits allow, to
the detriment of other Users seeking to
purchase cabinets or power.
To address this issue, the Exchange
proposes to amend the Existing
Procedures to add to General Note 8(b)
that ‘‘[w]hile a User is on the Combined
Waitlist, no Affiliate of such User may
also be on the Combined Waitlist.’’ The
Exchange similarly proposes to amend
General Note 8(a), regarding the Cabinet
Waitlist, to provide that ‘‘[w]hile a User
is on the Cabinet Waitlist, no Affiliate
of such User may also be on the Cabinet
Waitlist.’’ The term ‘‘Affiliate’’ is
already defined in the Co-Location Fees
section of the Price List and Fee
Schedule as follows: ‘‘An ‘Affiliate’ of a
User is any other User or Hosted
Customer that is under 50% or greater
common ownership or control of the
first User.’’ This definition of ‘‘Affiliate’’
was introduced in connection with the
9 See Price List and Fee Schedule, Co-Location
Fees, General Notes 7 and 8.
10 See Price List and Fee Schedule, Co-Location
Fees, General Note 8(b).
11 For example, a User that wants 64 kW could
submit an order for 32 kW to the Combined
Waitlist, and then have an affiliated entity submit
a second order to the Combined Waitlist for an
additional 32 kW. Once the affiliated entity
obtained its 32 kW, it could assign the power to the
User. As a result, the User would obtain two times
more power than the Combined Limit would allow.
The Exchange has been informed that at least one
User has contemplated utilizing affiliates for this
purpose.
E:\FR\FM\22NON1.SGM
22NON1
]]>Agencies
[Federal Register Volume 86, Number 222 (Monday, November 22, 2021)]
[Notices]
[Pages 66351-66354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25354]
=======================================================================
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-93588; File No. SR-NYSE-2021-66]
Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Update the Procedures for the Allocation of Cabinets and Power to Its
Colocated Users
November 16, 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 November 3, 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
and II below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 15 U.S.C. 78a.
\3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to update the procedures for the allocation
of cabinets and power to its colocated 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 update the procedures for the allocation
of cabinets and power to its colocated \4\ Users.\5\
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\4\ The Exchange initially filed rule changes relating to its
colocation services with the Securities and Exchange Commission
(``Commission'') in 2010. See Securities Exchange Act Release No.
62960 (September 21, 2010), 75 FR 59310 (September 27, 2010) (SR-
NYSE-2010-56).
\5\ For purposes of the Exchange's colocation services, a
``User'' means any market participant that requests to receive
colocation services directly from the Exchange. See Securities
Exchange Act Release No. 76008 (September 29, 2015), 80 FR 60190
(October 5, 2015) (SR-NYSE-2015-40). As specified in the New York
Stock Exchange Price List (``Price List''), a User that incurs
colocation fees for a particular colocation service pursuant thereto
would not be subject to colocation fees for the same colocation
service charged by the Exchange's affiliates NYSE American 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-NYSEAMER-2021-42; SR-NYSEArca-2021-96; SR-
NYSECHX-2021-16; SR-NYSENAT-2021-22.
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In December 2020, the Exchange established procedures for the
allocation of cabinets in colocation should it
[[Page 66352]]
become needed.\6\ In April 2021, the Exchange added procedures for the
allocation of power in colocation (together with the cabinet
procedures, the ``Existing Procedures'').\7\
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\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).
\7\ See Securities Exchange Act Release No. 91515 (April 8,
2021), 86 FR 19674 (April 14, 2021) (SR-NYSE-2021-12, SR-NYSEAMER-
2021-08, SRNYSENAT-2021-03, SR-NYSEArca-2021-11, and SR-NYSECHX-
2021-02). The Existing Procedures are set forth in General Notes 7
and 8 under ``Co-location Fees'' in the Price List.
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Proposed Changes to the Waitlist Procedures
Pursuant to the Existing Procedures, a Combined Waitlist is
currently in effect. To be placed on the Combined Waitlist, a User must
submit an order that complies with the Combined Limits--that is, the
order must be for no more than 32 kW, and no more than four dedicated
cabinets with standard power allocations of 4 kW or 8 kW as part of the
32 kW total.\8\
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\8\ See Price List, Co-Location Fees, General Notes 7 and 8.
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The Existing Procedures provide that ``[a] User may only have one
order for new cabinets and/or additional power on the Combined Waitlist
at a time . . . .'' \9\ The Exchange has become aware that some Users
are attempting to circumvent this provision by submitting additional
orders in the names of entities affiliated with the User.\10\
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\9\ See Price List, Co-Location Fees, General Note 8(b).
\10\ For example, a User that wants 64 kW could submit an order
for 32 kW to the Combined Waitlist, and then have an affiliated
entity submit a second order to the Combined Waitlist for an
additional 32 kW. Once the affiliated entity obtained its 32 kW, it
could assign the power to the User. As a result, the User would
obtain two times more power than the Combined Limit would allow. The
Exchange has been informed that at least one User has contemplated
utilizing affiliates for this purpose.
---------------------------------------------------------------------------
The Exchange believes that such actions by Users are contrary to
the objectives of the Existing Procedures, which were intended to
foreclose Users from obtaining a greater portion of the cabinets and
power available than the portion defined by the Cabinet Limits and
Combined Limits. Such actions by Users could result in a distribution
of cabinets and power that is contrary to the intent of the Cabinet
Limits and Combined Limits, with Users that are willing to submit
multiple orders in the names of their affiliates obtaining more
cabinets and power than the Cabinet Limits and Combined Limits allow,
to the detriment of other Users seeking to purchase cabinets or power.
To address this issue, the Exchange proposes to amend the Existing
Procedures to add to General Note 8(b) that ``[w]hile a User is on the
Combined Waitlist, no Affiliate of such User may also be on the
Combined Waitlist.'' The Exchange similarly proposes to amend General
Note 8(a), regarding the Cabinet Waitlist, to provide that ``[w]hile a
User is on the Cabinet Waitlist, no Affiliate of such User may also be
on the Cabinet Waitlist.'' The term ``Affiliate'' is already defined in
the Co-Location Fees section of the Price List as follows: ``An
`Affiliate' of a User is any other User or Hosted Customer that is
under 50% or greater common ownership or control of the first User.''
This definition of ``Affiliate'' was introduced in connection with the
Exchange's filing regarding partial cabinet solutions, and the Exchange
believes that the definition is appropriate to also use in the present
context.\11\
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\11\ To the extent that the Combined Waitlist currently includes
orders submitted by two or more Users that are Affiliates, the
Exchange intends to remove all but the first of such Affiliates'
orders from the Combined Waitlist upon this proposed rule change
becoming operative.
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Proposed Changes to the Purchasing Limit Procedures
The Exchange also proposes to amend the Existing Procedures
regarding Cabinet and Power Purchasing Limits in General Note 7 to
prevent Users from circumventing the Cabinet Limits and Combined Limits
in a similar fashion when they are in effect but a waitlist is not. The
Existing Procedures provide that when the Cabinet Limit or Combined
Limits are in effect, a User will have to wait 30 days from the date of
the User's signed order before purchasing cabinets or power again. The
Exchange proposes to amend such provisions to specify that this 30-day
limitation applies not just to Users that have already purchased
cabinets or power subject to the applicable Purchasing Limit, but also
to any Affiliate of such User, so long as the applicable Purchasing
Limit remains in effect.
General
The proposed rule 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 is
applied uniformly to all Users. The proposed change is not otherwise
intended to address any other issues relating to colocation 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,\12\ in general, and with Section
6(b)(5),\13\ in particular, because it is designed to prevent
fraudulent and manipulative acts and practices, to promote just and
equitable principles of trade, to foster cooperation and coordination
with persons engaged in facilitating transactions in securities, to
remove impediments to and perfect the mechanism of a free and open
market and a national market system, and, in general, to protect
investors and the public interest, and because it is not designed to
permit unfair discrimination between customers, issuers, brokers, or
dealers.
---------------------------------------------------------------------------
\12\ 15 U.S.C. 78f(b).
\13\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
The Exchange believes that the proposed rule change would prevent
fraudulent and manipulative acts and practices, and would remove
impediments to and perfect the mechanism of a free and open market and
a national market system, and, in general, protect investors and the
public interest, because it would prevent a User from obtaining a
greater share of cabinets and power than the Existing Procedures
intended, and thereby facilitate a more equitable distribution of
cabinets and power.
As noted above, the Exchange has become aware that some Users are
attempting to circumvent the Combined Waitlist by submitting additional
orders in the names of entities affiliated with the User, in order to
avoid the Existing Procedures' prohibition against a User having more
than one order on the Combined Waitlist at the same time. The Exchange
believes that such actions by Users are contrary to the objectives of
the Existing Procedures, which were intended to foreclose Users from
obtaining a greater portion of the cabinets and power available than
the portion defined by the Cabinet Limits and Combined Limits. Unless
prohibited, such actions by Users could result in an inequitable
distribution of cabinets and power, with Users that are willing to
submit multiple orders in the names of their affiliates obtaining more
than their intended share of cabinets and power, to the detriment of
other Users seeking to purchase cabinets and power. The proposed rule
change to General Note 8 would address this concern.
The Exchange believes that the proposed amendments to the Existing
[[Page 66353]]
Procedures regarding Cabinet and Power Purchasing Limits in General
Note 7 would similarly prevent Users from circumventing the Cabinet
Limits and Combined Limits when there is no waitlist in effect. The
Exchange believes that having both Users and their Affiliates wait 30
days from the date of the signed order to purchase new cabinets or
power would foreclose Users' ability to use their Affiliates to obtain
a greater portion of the cabinets and power available. In this way, the
Exchange believes that that the proposed amendments to General Note 7
would prevent fraudulent and manipulative acts and practices, and would
remove impediments to and perfect the mechanism of a free and open
market and a national market system, and, in general, protect investors
and the public interest.
The proposed rule change would not unfairly discriminate between or
among market participants, as it would apply to all types and sizes of
market participants equally.
B. Self-Regulatory Organization's Statement on Burden on Competition
In accordance with Section 6(b)(8) of the Act,\14\ 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. Rather, the proposed rule change is designed to
prevent Users from obtaining an unfair competitive advantage by
submitting multiple orders in the names of affiliated entities, in
order to avoid the Existing Procedures' prohibition against a User
having more than one order on the Cabinet Waitlist or the Combined
Waitlist at the same time and to obtain a greater portion of the
cabinets and power available than the portion defined by the Cabinet
Limits and Combined Limits. The proposed rule change would prevent a
User from obtaining this unfair competitive advantage, thereby
facilitating a more equitable distribution of cabinets and power.
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\14\ 15 U.S.C. 78f(b)(8).
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C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
No written comments were solicited or received with respect to the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \15\ and Rule 19b-4(f)(6) thereunder.\16\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.\17\
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\15\ 15 U.S.C. 78s(b)(3)(A)(iii).
\16\ 17 CFR 240.19b-4(f)(6).
\17\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires the Exchange to give the Commission written notice of its
intent to file the proposed rule change, along with a brief
description and text of the proposed rule change, at least five
business days prior to the date of filing of the proposed rule
change, or such shorter time as designated by the Commission. The
Exchange has satisfied this requirement.
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A proposed rule change filed under Rule 19b-4(f)(6) \18\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\19\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange requests
that the Commission waive the 30-day operative delay so that the
proposal may become operative immediately upon filing. The Exchange
believes that implementing the proposed rule change as soon as possible
would allow the Exchange to prevent Users from unfairly obtaining more
cabinets or power than the Existing Procedures were intended to
provide. The Commission believes that waiver of the operative delay is
consistent with the protection of investors and the public interest.
Accordingly, the Commission waives the 30-day operative delay and
designates the proposed rule change operative upon filing.\20\
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\18\ 17 CFR 240.19b-4(f)(6).
\19\ 17 CFR 240.19b-4(f)(6)(iii).
\20\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \21\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
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\21\ 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-2021-66 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-2021-66. 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
[[Page 66354]]
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSE-2021-66 and should be
submitted on or before December 13, 2021.
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\22\ 17 CFR 200.30-3(a)(12).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\22\
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-25354 Filed 11-19-21; 8:45 am]
BILLING CODE 8011-01-P
