[Federal Register Volume 78, Number 229 (Wednesday, November 27, 2013)]
[Notices]
[Pages 71000-71002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28419]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-70914; File No. SR-NYSEMKT-2013-93]


Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and 
Immediate Effectiveness of Proposed Rule Change To Amend the NYSE MKT 
Equities Price List and the NYSE Amex Options Fee Schedule Related to 
Co-Location Services

November 21, 2013.
    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 8, 2013, NYSE MKT LLC (the ``Exchange'' or 
``NYSE MKT'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend the NYSE MKT Equities Price List 
(``Price List'') and the NYSE Amex Options Fee Schedule (``Fee 
Schedule'') related to co-location services in order to provide further 
specification regarding the fees applicable to cabinets for which power 
is not utilized (``PNU cabinets''). The text of the proposed rule 
change is available on the Exchange's Web site at www.nyse.com, at the 
principal office of the Exchange, and at the Commission's Public 
Reference Room.

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 amend the Price List and the Fee Schedule 
related to co-location services in order to provide further 
specification regarding the fees applicable to PNU cabinets.\4\ The 
Exchange proposes to implement the change immediately.
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    \4\ The Securities and Exchange Commission (``Commission'') 
initially approved the Exchange's co-location services in Securities 
Exchange Act Release No. 62961 (September 21, 2010), 75 FR 59299 
(September 27, 2010) (SR-NYSEAmex-2010-80) (the ``Original Co-
location Approval''). The Exchange operates a data center in Mahwah, 
New Jersey (the ``data center'') from which it provides co-location 
services to Users. The Exchange's co-location services allow Users 
to rent space in the data center so they may locate their electronic 
servers in close physical proximity to the Exchange's trading and 
execution system. See id. at 59299.
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    A User is currently able to obtain one or more PNU cabinets in the 
data center.\5\ A PNU cabinet is an unused cabinet in proximity to a 
User's existing cabinet(s), which the User reserves for future use, 
i.e., a cabinet that the User does not anticipate using until some 
point in the future and therefore is reserved but not currently 
utilized. Although PNU cabinets do not use power, when the Exchange 
establishes a PNU cabinet, it includes wiring, circuitry, and hardware 
and allocates either four kilowatts (``kW'') or eight

[[Page 71001]]

kWs of unused power capacity, depending on the User's requirements, as 
it does for all cabinets.\6\ This allows the PNU cabinet to be powered 
and used promptly upon the User's request.
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    \5\ For purposes of the Exchange's co-location services, the 
term ``User'' includes (i) member organizations, as that term is 
defined in the definitions section of the General and Floor Rules of 
the NYSE MKT Equities Rules, and ATP Holders, as that term is 
defined in NYSE Amex Options Rule 900.2NY(5); (ii) Sponsored 
Participants, as that term is defined in Rule 123B.30(a)(ii)(B)--
Equities and NYSE Amex Options Rule 900.2NY(77); and (iii) non-
member organization and non-ATP Holder broker-dealers and vendors 
that request to receive co-location services directly from the 
Exchange. See, e.g., Securities Exchange Act Release Nos. 65974 
(December 15, 2011), 76 FR 79249 (December 21, 2011) (SR-NYSEAmex-
2011-81) and 65975 (December 15, 2011), 76 FR 79233 (December 21, 
2011) (SR-NYSEAmex-2011-82). As specified in the Price List and the 
Fee Schedule, a User that incurs co-location fees for a particular 
co-location service pursuant thereto would not be subject to co-
location fees for the same co-location service charged by the 
Exchange's affiliates New York Stock Exchange LLC and NYSE Arca, 
Inc. See Securities Exchange Act Release No. 70176 (August 13, 
2013), 78 FR 50471 (August 19, 2013) (SR-NYSEMKT-2013-67).
    \6\ A User is generally able to determine an approximate amount 
of power that it will typically consume in its cabinet. A User would 
request either a four or eight kW cabinet based on its anticipated 
peak power consumption.
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    The applicable monthly fee for PNU cabinets (the ``PNU Fee'') was 
described within the Original Co-location Approval as 40% of the 
applicable per kW monthly fee.\7\ Accordingly, since the Exchange began 
offering co-location services in the data center, the amount of the PNU 
Fee charged for a cabinet per month depended on the number of kWs of 
power allocated to that PNU cabinet. The Exchange subsequently 
specified that the PNU Fee would be $360 per month, which is 40% of the 
lowest per kW monthly cabinet fee specified in the Price List and Fee 
Schedule for cabinets in use (i.e., 40% of $900).\8\ The Exchange 
continued to charge the PNU Fee on a per kW basis. To provide greater 
specificity with respect to the PNU Fee and better align the Price List 
and Fee Schedule with the Exchange's billing practice, the Exchange 
proposes to amend the Price List and Fee Schedule to explicitly provide 
that the applicable monthly PNU Fee is $360 per kW of power allocated 
to the PNU cabinet.\9\
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    \7\ See Original Co-location Approval at 59299, n. 5. Users pay 
a monthly per kW fee for cabinets in use, which is based on the 
number of kWs allocated to the User's cabinets. The fee ranges from 
$1,200 per kW, for Users utilizing four to eight kWs, to $900 per 
kW, for Users utilizing more than 41 kW.
    \8\ See Securities Exchange Act Release Nos. 67664 (August 15, 
2012), 77 FR 50733, 50734 (August 22, 2012) (SR-NYSEMKT-2012-10) and 
67665 (August 15, 2012), 77 FR 50734, 50735 (August 22, 2012) (SR-
NYSEMKT-2012-11).
    \9\ For example, if a User has a PNU cabinet allocated four kWs 
of power, the Exchange would charge the User $1,440 per month (i.e., 
$360 x four). If a User has a PNU cabinet allocated eight kWs of 
power, the Exchange would charge the User $2,880 per month (i.e., 
$360 x eight). Users are not otherwise charged for PNU cabinets 
until power is activated, at which point the fees applicable to 
other cabinets are charged (i.e., the $5,000 initial fee per cabinet 
and the full, monthly fee per kW).
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    As is the case with all Exchange co-location arrangements, (i) 
neither a User nor any of the User's customers would be permitted to 
submit orders directly to the Exchange unless such User or customer is 
a member organization, an ATP Holder, a Sponsored Participant or an 
agent thereof (e.g., a service bureau providing order entry services); 
(ii) use of the co-location services proposed herein would be 
completely voluntary and available to all Users on a non-discriminatory 
basis; \10\ and (iii) a User would only incur one charge for the 
particular co-location service described herein, regardless of whether 
the User connects only to the Exchange or to the Exchange and one or 
both of its affiliates.\11\
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    \10\ As is currently the case, Users that receive co-location 
services from the Exchange will not receive any means of access to 
the Exchange's trading and execution systems that is separate from, 
or superior to, that of other Users. In this regard, all orders sent 
to the Exchange enter the Exchange's trading and execution systems 
through the same order gateway, regardless of whether the sender is 
co-located in the data center or not. In addition, co-located Users 
do not receive any market data or data service product that is not 
available to all Users, although Users that receive co-location 
services normally would expect reduced latencies in sending orders 
to, and receiving market data from, the Exchange.
    \11\ See SR-NYSEMKT-2013-67, supra note 5 at 50471. The 
Exchange's affiliates have also submitted the same proposed rule 
change to provide further specification regarding the fees 
applicable to PNU cabinets. See SR-NYSE-2013-74 and SR-NYSEArca-
2013-124.
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    The proposed change is not otherwise intended to address any other 
issues relating to co-location services and/or related fees, and the 
Exchange is not aware of any problems that Users would have in 
complying with the proposed change.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\12\ in general, and furthers the 
objectives of Sections 6(b)(4) and (5) of the Act,\13\ 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.
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    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(4) and (5).
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    Overall, the Exchange believes that the proposed change is 
consistent with the Act because the Exchange offers the co-location 
services described herein (i.e., PNU cabinets) as a convenience to 
Users, but in doing so incurs certain costs, including costs related to 
the data center facility, including maintaining an adequate level of 
power so that PNU cabinets can be available and powered on promptly at 
the request of a User. As such, the proposed fees relate to the level 
of services provided by the Exchange and, in turn, received by the 
User.
    The Exchange believes that the proposal is reasonable because it 
would better align the Price List and Fee Schedule with the Exchange's 
billing practices and provide further specificity in the Price List and 
Fee Schedule regarding such fees. The proposal is further reasonable 
because pricing for PNU cabinets is comparable to pricing for the 
``Cabinet Proximity Option'' available to users of co-location 
facilities of The NASDAQ Stock Market LLC (``NASDAQ''), which varies 
based on the power capacity of the cabinet.\14\
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    \14\ See NASDAQ Rule 7034. Fees for NASDAQ's Cabinet Proximity 
Option are $1,000 per medium or low density cabinet or $1,500 per 
medium/high or high density cabinet. The Exchange understands that 
NASDAQ's Cabinet Proximity Option gives its co-location customers 
the ability to reserve contiguous or near contiguous cabinets and 
power at a reduced rate, similar to manner in which Users are able 
to request PNU cabinets in the Exchange's data center for future 
use.
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    As with fees for existing co-location services, the PNU cabinet 
fees are charged only to those Users that voluntarily select the 
related services, which are available to all Users. The Exchange 
therefore believes that the proposed change is equitable and not 
unfairly discriminatory because it would continue to result in fees 
being charged only to Users that voluntarily select to receive the 
corresponding services and because those services are available to all 
Users. As such, the proposed change would not unfairly discriminate 
between or among market participants that are otherwise capable of 
satisfying any applicable co-location fees, requirements, terms and 
conditions established from time to time by the Exchange.
    Finally, the Exchange believes that it is subject to significant 
competitive forces, as described below in the Exchange's statement 
regarding the burden on competition.
    For these reasons, the Exchange believes that the proposal is 
consistent with the Act.

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

    In accordance with Section 6(b)(8) of the Act,\15\ 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 because any market participants that are otherwise 
capable of satisfying any applicable co-location fees, requirements, 
terms and conditions established from time to time by the Exchange 
could have access to the co-location services provided in the data 
center. This is also true because, in addition to the services being 
completely voluntary, they are available to all Users on an equal basis 
(i.e., the same range of products and services are available to all 
Users).
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    \15\ 15 U.S.C. 78f(b)(8).
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    The Exchange further believes that the proposal would not impose 
any burden on competition that is not necessary or

[[Page 71002]]

appropriate in furtherance of the purposes of the Act because it would 
result in further specification in the Price List and Fee Schedule 
regarding the fees applicable to PNU cabinets. Although PNU cabinets do 
not use power, when the Exchange establishes a PNU cabinet, it includes 
wiring, circuitry, and hardware and allocates either four kWs or eight 
kWs of unused power capacity, depending on the User's requirements, as 
it does for all cabinets. This allows the cabinet to be powered and 
used promptly upon the User's request. The proposed amendment to the 
Price List and Fee Schedule would therefore specify that the applicable 
monthly PNU Fee is $360 per kW of power allocated to the PNU cabinet.
    Finally, the Exchange notes that it operates in a highly 
competitive market in which market participants can readily favor 
competing venues if, for example, they deem fee levels at a particular 
venue to be excessive or if they determine that another venue's 
products and services are more competitive than on the Exchange. In 
such an environment, the Exchange must continually review, and consider 
adjusting, the services it offers as well as any corresponding fees and 
credits to remain competitive with other exchanges. For the reasons 
described above, the Exchange believes that the proposed rule change 
reflects this competitive environment.

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

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

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

    The foregoing rule change is effective upon filing pursuant to 
Section 19(b)(3)(A) \16\ of the Act and subparagraph (f)(2) of Rule 
19b-4 \17\ thereunder, because it establishes a due, fee, or other 
charge imposed by the Exchange.
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    \16\ 15 U.S.C. 78s(b)(3)(A).
    \17\ 17 CFR 240.19b-4(f)(2).
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    At any time within 60 days of the filing of such proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission shall institute proceedings under 
Section 19(b)(2)(B) \18\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \18\ 15 U.S.C. 78s(b)(2)(B).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please 
include File Number SR-NYSEMKT-2013-93 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEMKT-2013-93. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549, on official 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; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-NYSEMKT-2013-93 and should 
be submitted on or before December 18, 2013.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\19\
Kevin M. O'Neill,
Deputy Secretary.
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    \19\ 17 CFR 200.30-3(a)(12).
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[FR Doc. 2013-28419 Filed 11-26-13; 8:45 am]
BILLING CODE 8011-01-P