[Federal Register Volume 81, Number 81 (Wednesday, April 27, 2016)]
[Notices]
[Pages 24905-24907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-09723]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-77680; File No. SR-NYSEMKT-2016-17]


Self-Regulatory Organizations; NYSE MKT LLC; Order Approving a 
Proposed Rule Change, as Modified by Amendment No. 1, To Establish 
Procedures for the Allocation of Cages to Co-Located Users, Including 
the Waiver of Certain Fees, and To Amend the Visitor Security Escort 
Fee

 April 21, 2016.

I. Introduction

    On February 23, 2016 NYSE MKT LLC (``the Exchange'') 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 establish 
procedures for the allocation of cages to co-located Users, including 
the waiver of certain fees, and to amend the visitor security escort 
fee. On March 1, 2016, the Exchange filed Amendment No. 1 to the 
proposed rule change. The proposed rule change, as modified by 
Amendment No. 1, was published for comment in the Federal Register on 
March 11, 2016.\3\ There were no comments on the proposed rule change. 
This order approves the proposed rule change, as modified by Amendment 
No. 1.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 34-77304 (March 7, 
2016), 81 FR 12981 (``Notice''). Amendment No.1 was included in the 
Notice and provided certain clarifications, including that that the 
proposed waiver of fees for two bundles of 24 cross connects, 
applicable while a User is on the waitlist, would only apply to 
cross-connects used to connect an individual User's non-contiguous 
cabinets.
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II. Background and Description of the Proposal, as Modified by 
Amendment No. 1

    The Exchange proposes to establish procedures for the allocation of 
cages to its co-located Users,\4\ including the waiver of certain fees 
subject to specified conditions, and to amend the visitor security 
escort fee.\5\ The Exchange proposes to amend the NYSE MKT Equities 
Price List (``Price List'') and the NYSE Amex Options Fee Schedule 
(``Fee Schedule'') to reflect the changes.\6\
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    \4\ 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. The Exchange provides 
co-location services to Users from its data center (``Data Center'') 
in Mahwah, New Jersey.
    \5\ See Notice, 81 FR at 12981.
    \6\ See id.
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    As more fully set forth in the Notice, the Exchange offers Users 
the ability to rent cages to house their cabinets in the Data 
Center,\7\ and historically has offered these cages on a first come/
first serve basis.\8\ The Exchange states that a cage typically is 
purchased by a User that has several cabinets within the Data Center 
and wishes to arrange its cabinets contiguously while also enhancing 
privacy around its cabinets.\9\ The Exchange offers three cage sizes, 
corresponding to the number of cabinets housed therein, and charges 
fees for the cages based on the size.\10\ The physical footprint of 
each cage is greater than that of the cabinets that it houses, as each 
cage is constructed so as to include aisles around the purchasing 
User's cabinets, for accessibility and to comply with safety 
regulations.\11\ In order to offer the cages, the Exchange must have 
sufficient contiguous open space available for the cage.\12\
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    \7\ See Notice, 81 FR at 12982. A User must have at least two 
cabinets in the Data Center to purchase a cage. See id.
    \8\ See Notice, 81 FR at 12982.
    \9\ See id.
    \10\ See id.
    \11\ See id.
    \12\ See id.
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    In 2015, the Exchange determined that to continue to be able to 
meet its obligation to accommodate demand, and in particular to make 
available more contiguous, larger spaces for new and existing Users, it 
would exercise its right to move some Users' equipment within the Data 
Center (the ``Migration'').\13\ The Exchange established procedures to 
manage the Migration process, and continues to implement them.\14\ The 
Exchange states that, notwithstanding the Migration, contiguous open 
space will still be limited, and may become more limited over time.\15\
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    \13\ See Notice, 81 FR at 12982; see also Securities Exchange 
Act Release No. 76269 (October 26, 2015), 80 FR 66947 (October 30, 
2015) (SR-NYSE-2015-42); Securities Exchange Act Release No. 76268 
(October 26, 2015), 80 FR 66944 (October 30, 2015) (SR-NYSEMKT-2015-
70); Securities Exchange Act Release No. 76270 (October 26, 2015), 
80 FR 66944 (October 30, 2015) (SR-NYSEArca-2015-85) (collectively 
``Migration Filing'').
    \14\ See Notice, 81 FR at 12982; see also Migration Filing supra 
note 13.
    \15\ See Notice, 81 FR at 12982.
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Proposed Cage Allocation Procedure

    The Exchange has proposed to establish procedures governing the 
allocation of cages should the currently available open contiguous 
space in the Data Center be insufficient to house a new cage or if the 
open contiguous

[[Page 24906]]

space available is sufficiently limited such that the Exchange cannot 
both provide new cages and satisfy all User demand for other co-
location services.\16\ Specifically, the Exchange proposes that it will 
place Users seeking new cages on a waitlist: (1) The order of Users on 
the list will be based on the date the Exchange receives signed orders 
for the cages from each User; (2) once the list is established, Users, 
on a rolling basis, will be allocated a cage each time one becomes 
available; (3) if a cage becomes available and the User that is at the 
top of the waitlist turns it down because it requested a different 
size, that User will remain on the waitlist and the cage will be 
offered to the next User on the list, in order, until a User accepts 
it; (4) a User that turns down a cage that is the size that it 
requested will be removed from the waitlist; and (5) if a User requests 
two cages, that User will be moved to the bottom of the waitlist upon 
the receipt of its first cage.\17\
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    \16\ See id.
    \17\ See id.
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    In connection with the proposed waitlist procedures, the Exchange 
further proposes to add General Note 3 to the Price List and Fee 
Schedule,\18\ to provide that the Exchange would, subject to specified 
conditions, waive the initial and monthly fee for two bundles of 24 
cross connects between a User's non-contiguous cabinets while it is on 
the waitlist.\19\ Specifically, the initial and monthly charge for two 
bundles of 24 cross connects will be waived for a User that is 
waitlisted for a cage for the duration of the waitlist period, provided 
that the cross connects may only be used to connect the User's non-
contiguous cabinets.\20\ The charge will no longer be waived once a 
User is removed from the waitlist.\21\ In addition, a User that is 
removed from the waitlist but subsequently requests a cage will be 
added back to the bottom of the waitlist, provided that, if the User 
was removed from the waitlist because it turned down a cage that is the 
size that it requested, it will not receive a second waiver of the 
charge.\22\
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    \18\ See Notice, 81 FR at 12983.
    \19\ See id.
    \20\ See id.
    \21\ As noted above, a User that turns down a cage because it is 
not the correct size will remain on the waitlist. A User that 
requests to be removed or that turns down a cage that is the size 
that it requested will be removed from the waitlist. See supra note 
17 and accompanying text.
    \22\ See Notice, 81 FR at 12983.
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Visitor Security Escorts

    The Exchange also proposes to amend its visitor security escort 
fee. Currently, a User visiting its cabinet(s) in the Data Center is 
required to pay a $75/hour fee for a security escort.\23\ The Exchange 
proposes to eliminate this fee for Users visiting their own cage in the 
Data Center,\24\ and change the fee for those not visiting their own 
cage from $75/hour to $75/visit.\25\ The Exchange states that a 
security escort is not needed when a User visits its own cage because 
that User would have access only to its own cabinets locked within its 
own cage,\26\ and that User will not have access to the cabinets of 
other Users or Exchange equipment, which are locked as well.\27\
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    \23\ See id.
    \24\ See id. The Exchange is also making a technical change to 
the fee schedule visitor fee to add clarity. See id.
    \25\ See id. The Exchange stated that many of the escorted 
visits lasted an hour or less. See id.
    \26\ See id.
    \27\ See id.
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III. Discussion and Commission Findings

    After careful review and consideration of the Exchange's proposal, 
the Commission finds that the proposed rule change, as modified by 
Amendment No. 1, is consistent with the requirements of the Act and the 
rules and regulations thereunder applicable to a national securities 
exchange.\28\ In particular, the Commission finds that the proposed 
rule change, as modified by Amendment No. 1, is consistent with Section 
6(b)(4) of the Act,\29\ which requires that the rules of a national 
securities exchange provide for the equitable allocation of reasonable 
dues, fees and other charges among its members and issuers and other 
persons using its facilities, and with Section 6(b)(5) of the Act,\30\ 
which requires, among other things, that the rules of a national 
securities exchange be designed to promote just and equitable 
principles of trade, 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 not be designed to 
permit unfair discrimination between customers, issuers, brokers, or 
dealers.
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    \28\ In approving this proposed rule change, as modified by 
Amendment No. 1, the Commission has considered the proposed rule's 
impact on efficiency, competition, and capital formation. See 15 
U.S.C. 78c(f).
    \29\ 15 U.S.C. 78f(b)(4).
    \30\ 15 U.S.C. 78f(b)(5).
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    The Commission believes that the proposed procedures for the 
allocation of cages to its co-located Users and associated waiver of 
fees subject to specified conditions are consistent with Sections 
6(b)(4) and 6(b)(5) of the Act. In particular, the Commission believes 
that the proposed cage allocation and waitlist procedures are 
reasonably designed to assist the Exchange in offering cages to current 
and future Users in the Data Center on terms that are equitable and not 
unfairly discriminatory in the event that available open contiguous 
space in the Data Center is not sufficient to house a newly requested 
cage or sufficiently limited that the Exchange cannot both provide new 
cages and satisfy all User demand for other co-location services. The 
Commission further believes that the proposal to waive the initial and 
monthly fee for two bundles of 24 cross connects between a User's non-
contiguous cabinets while a User is on the waitlist is consistent with 
the Act. Users can qualify for the fee waiver by requesting a cage and 
being placed on the waitlist until a cage becomes available to them. 
Once the Exchange offers the requested size cage to a User through the 
allocation procedure or when a User is removed from the waitlist, the 
fee would no longer be waived. In addition, if a User was removed from 
the waitlist because it turned down a cage that was the size that it 
requested, it would not receive a second waiver of the charge. The 
Commission believes that the proposed fee waiver and associated 
conditions are reasonably designed to alleviate the inconvenience for 
waitlisted Users of having cabinets in non-contiguous spaces by 
removing the cost that those Users would otherwise avoid if a cage were 
available.
    The Commission also finds the proposed amendments to the visitor 
security escort fee consistent with Sections 6(b)(4) and 6(b)(5) of the 
Act. The Exchange represents that a security escort is not needed when 
a User visits its own cage because that User would have access only to 
its own cabinets locked within its own cage,\31\ and will not have 
access to the cabinets of other Users or Exchange equipment, which are 
locked as well.\32\ In addition, the proposed rate of $75/visit for the 
visitor security escort would be a fee reduction for any visit that 
lasted more than an hour, and so it would reduce the burden placed on 
Users that remain subject to the fee. Therefore, the Commission finds 
the proposed amendments to the visitor security escort fee to be 
reasonable, equitable, and not unfairly discriminatory.
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    \31\ See supra notes 26-27 and accompanying text.
    \32\ See id.
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    For the foregoing reasons, the Commission finds that the proposed 
rule change, as modified by Amendment No. 1, is consistent with the 
Act.

[[Page 24907]]

VII. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\33\ that the proposed rule change, as modified by Amendment No.1, 
(File No. SR-NYSEMKT-2016-17) be, and hereby is, approved.
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    \33\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\34\
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    \34\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2016-09723 Filed 4-26-16; 8:45 am]
 BILLING CODE 8011-01-P