[Federal Register Volume 82, Number 42 (Monday, March 6, 2017)]
[Notices]
[Pages 12646-12649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-04201]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-80117; File No. SR-NYSEMKT-2017-09]


Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and 
Immediate Effectiveness of Proposed Rule Change to the Co-Location 
Services Offered by the Exchange Adding a Wireless Connection to 
Toronto Stock Exchange (TSX) Third Party Data

February 28, 2017.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that on February 15, 2017, 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 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 the 
Substance of the Proposed Rule Change

    The Exchange proposes to change the co-location services offered by 
the Exchange to include a means for co-located Users to receive the 
Toronto Stock Market market data feed through a wireless connection. In 
addition, the proposed rule change reflects changes to the NYSE MKT 
Equities Price List (``Price List'') and the NYSE Amex Options Fee 
Schedule (``Fee Schedule'') related to the proposed service. 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 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to change the co-location \4\ services 
offered by the Exchange to include a means for Users \5\ to have access 
to the Toronto Stock Exchange market data feed through a wireless 
connection. In addition, the proposed rule change reflects changes to 
the Exchange's Price List and Fee Schedule related to the proposed 
service.
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    \4\ The Exchange initially filed rule changes relating to its 
co-location services with the Securities and Exchange Commission 
(``Commission'') in 2010. See Securities Exchange Act Release No. 
62961 (September 21, 2010), 75 FR 59299 (September 27, 2010) (SR-
NYSEAmex-2010-80). The Exchange operates a data center in Mahwah, 
New Jersey (the ``Data Center'') from which it provides co-location 
services to Users.
    \5\ For purposes of the Exchange's co-location services, a 
``User'' means any market participant that requests to receive co-
location services directly from the Exchange. See Securities 
Exchange Act Release No. 76009 (September 29, 2015), 80 FR 60213 
(October 5, 2015) (SR-NYSEMKT-2015-67). As specified in the 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 LLC'') and 
NYSE Arca, Inc. (``NYSE Arca''). See Securities Exchange Act Release 
No. 70176 (August 13, 2013), 78 FR 50471 (August 19, 2013) (SR-
NYSEMKT-2013-67).
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    The Exchange provides Users with wireless connections to seven 
market data feeds or combinations of feeds from third party markets 
(the ``Existing Third Party Data'').\6\ The Exchange now proposes to 
add to its Price List and Fee Schedule a new market data feed from the 
Toronto Stock Exchange (such feed, ``TSX'' and, together with the 
Existing Third Party Data, the ``Third Party Data'').
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    \6\ See Securities Exchange Act Release Nos. 76750 (December 23, 
2015), 80 FR 81648 (December 30, 2015) (SR-NYSEMKT-2015-85) 
(``Wireless Approval Release''); 78376 (July 21, 2016), 81 FR 49311 
(July 27, 2016) (SR-NYSEMKT-2016-70).
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    Through a new affiliate, the Exchange would provide the proposed 
wireless connection to TSX through wireless connections into the 
colocation center in the Data Center. The proposed rule change would 
become operative when the Exchange acquires such new affiliate (the 
``Acquisition''), expected to be no later than June 30, 2017. The 
Exchange will announce the date that the wireless connection to the TSX 
will be available through a customer notice.
    To receive TSX, the User would enter into a contract with the 
Toronto Stock Exchange, which would charge the User the applicable 
market data fees for TSX. The Exchange would charge the User fees for 
the wireless connection for TSX.\7\
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    \7\ A User would only receive TSX if it had entered into a 
contract with the Toronto Stock Exchange.
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    For each wireless connection to TSX, a User would be charged a 
$5,000 non-recurring initial charge and a monthly recurring charge 
(``MRC'') of $8,500. The Exchange proposes to revise its Price List and 
Fee Schedule to reflect fees related to the connection to TSX.
    As with the Existing Third Party Data, if a User purchased two 
wireless connections, it would pay two non-recurring initial charges. 
The wireless connection would include the use of one port for 
connectivity to TSX. A User would not pay a fee for the use of such 
port. However, a User would not be able to use the same port that it 
uses for connectivity to TSX to connect to Existing Third Party Data. 
Accordingly, a User that connects to both TSX and Existing Third Party 
Data would have at least two ports.\8\
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    \8\ If a User purchases a wireless connection to TSX, that 
connection would include the use of one port for connectivity to 
TSX. If the same User connects to Existing Third Party Data, it 
would receive the use of one port for connectivity to the Existing 
Third Party Data. It would not be separately charged for such ports. 
A User only requires one port to connect to the Existing Third Party 
Data, irrespective of how many of the wireless connections it 
orders. It may purchase additional ports. See Wireless Approval 
Release, at 81649.
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    As with the previously approved wireless connections to Third Party 
Data, the Exchange proposes to waive the first month's MRC, to allow 
Users to test the receipt of TSX for a month before incurring any MRCs.
    The company which the Exchange expects to acquire in the 
Acquisition currently provides wireless connections to TSX to customers 
who are also Users (the ``Existing Customers''). The Exchange would not 
charge such Existing Customers the non-recurring initial charge or 
waive the first month's

[[Page 12647]]

MRC for their wireless connection to TSX.
    The Exchange proposes to offer the wireless connection to provide 
Users with an alternative means of connectivity for TSX. For example, 
Users may receive connections to TSX from another User, through a 
telecommunications provider, or over the internet protocol (``IP'') 
network.\9\
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    \9\ The IP network is a local area network available in the data 
center. See Securities Exchange Act Release No. 74220 (February 6, 
2015), 80 FR 7894 (February 12, 2015) (SR-NYSEMKT-2015-08) (notice 
of filing and immediate effectiveness of proposed rule change to 
include IP network connections).
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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, 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 substantially the same 
proposed rule change to propose the changes described herein. See 
SR-NYSE-2017-05 and SR-NYSEArca-2017-18.
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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 Section 6(b)(5) of the Act,\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 regulating, 
clearing, settling, processing information with respect to, and 
facilitating transactions in securities, to remove impediments to, and 
perfect the mechanisms of, a free and open market and a national market 
system and, in general, to protect investors and the public interest 
and because it is not designed to permit unfair discrimination between 
customers, issuers, brokers, or dealers.
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    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(4), (5).
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    The Exchange believes that the proposed service is not designed to 
permit unfair discrimination between customers, issuers, brokers, or 
dealers because the wireless connection to TSX would provide Users with 
an alternative means of connectivity to TSX. Users that do not opt to 
utilize the Exchange's proposed wireless connections would still be 
able to obtain TSX through other methods. For example, Users may 
receive connections to TSX from another User, through a 
telecommunications provider, or over the IP network. Users that opt to 
use wireless connections to TSX would receive the TSX that is available 
to all Users, as all market participants that contract with Toronto 
Stock Exchange for TSX may receive it.
    The Exchange believes that this removes impediments to, and 
perfects the mechanisms of, a free and open market and a national 
market system and, in general, protects investors and the public 
interest because it would provide Users with choices with respect to 
the form and optimal latency of the connectivity they use to receive 
TSX, allowing a User that opts to receive TSX to select the 
connectivity and number of ports that better suit its needs, helping it 
tailor its Data Center operations to the requirements of its business 
operations.
    The Exchange also believes that the proposed rule change is 
consistent with Section 6(b)(4) of the Act,\14\ in particular, because 
it provides for the equitable allocation of reasonable dues, fees, and 
other charges among its members, issuers and other persons using its 
facilities and does not unfairly discriminate between customers, 
issuers, brokers or dealers.
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    \14\ 15 U.S.C. 78f(b)(4).
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    The Exchange believes that the proposed fees changes are consistent 
with Section 6(b)(4) of the Act for multiple reasons. The Exchange 
operates in a highly competitive market in which exchanges offer co-
location services as a means to facilitate the trading and other market 
activities of those market participants who believe that co-location 
enhances the efficiency of their operations. Accordingly, fees charged 
for co-location services are constrained by the active competition for 
the order flow of, and other business from, such market participants. 
If a particular exchange charges excessive fees for co-location 
services, affected market participants will opt to terminate their co-
location arrangements with that exchange, and adopt a possible range of 
alternative strategies, including placing their servers in a physically 
proximate location outside the exchange's data center (which could be a 
competing exchange), or pursuing strategies less dependent upon the 
lower exchange-to-participant latency associated with co-location. 
Accordingly, the exchange charging excessive fees would stand to lose 
not only co-location revenues but also the liquidity of the formerly 
co-located trading firms, which could have additional follow-on effects 
on the market share and revenue of the affected exchange.
    The Exchange believes that the proposed change is equitable and not 
unfairly discriminatory because it will result in fees being charged 
only to Users that voluntarily select to receive the corresponding 
services and because those services will be available to all Users. 
Furthermore, the Exchange believes that the services and fees proposed 
herein are not unfairly discriminatory and are equitably allocated 
because, in addition to the services being completely voluntary, they 
are available to all Users on an equal basis (i.e., the same products 
and services are available to all Users). All Users that voluntarily 
select wireless connections to TSX would be charged the same amount for 
the same services and would have their first month MRC for wireless 
connections waived.
    The Exchange believes that the proposed charges are reasonable, 
equitably allocated and not unfairly discriminatory because the 
Exchange proposes to offer the wireless connection to TSX described 
herein as a convenience to Users, but in order to do so must provide, 
maintain and operate the Data Center facility hardware and technology 
infrastructure. The Exchange must handle the installation, 
administration, monitoring, support and maintenance of such services, 
including by responding to any production issues. Since the inception 
of co-location, the Exchange has made numerous improvements to the 
network hardware and technology infrastructure and has established 
additional administrative controls. The Exchange has expanded the 
network infrastructure to keep pace with the increased number

[[Page 12648]]

of services available to Users. Specifically, in order to offer 
wireless connections, the Exchange must install, test, maintain and 
operate the wireless equipment.
    The Exchange believes that it is reasonable and not unfairly 
discriminatory that a User that has already purchased wireless 
connections to other Third Party Data would be charged a non-recurring 
charge when it purchases a wireless connection to TSX, because it would 
allow the Exchange to defray or cover certain costs it incurs in 
installing the wireless connection to TSX, which costs it incurs 
irrespective of whether the User has existing wireless connections to 
Third Party Data, while providing the User the benefit of the 
installation, which would allow it to receive TSX within co-location 
and with a lower latency over the fiber optics option. To do the 
initial installation, the Exchange must provide the personnel required 
for initial installation and testing. The costs associated with 
installing wireless connections are incrementally higher than those 
associated with installing fiber optics-based solutions.
    The Exchange believes that it is reasonable and not unfairly 
discriminatory that an Existing Customer would not be subject to the 
non-recurring initial charge, because such User's wireless connection 
to TSX would be in place at the time of the Acquisition, and the 
Exchange would not have to install the wireless connection.
    The Exchange believes that it is reasonable and not unfairly 
discriminatory that a User that connects to both TSX and Existing Third 
Party Data may not use the same port for connectivity to both, and so 
would have at least two ports, because the proposed wireless connection 
would include the use of one port for connectivity to TSX and the 
Existing Third Party Data includes the use of one port for connectivity 
to Existing Third Party Data. A User would not pay a separate fee for 
using such ports.
    The Exchange believes the proposed pricing for the wireless 
connection to TSX is reasonable because it would allow the Exchange to 
defray or cover the costs associated with offering Users a wireless 
connection to TSX while providing Users the benefit of receiving TSX 
within co-location and with a lower latency over the fiber optics 
option. The wireless connection for TSX allows Users to select the TSX 
connectivity option that better suits their needs.
    The Exchange believes that the proposed waiver of the first month's 
MRC is reasonable and not unfairly discriminatory as it would allow 
Users to test the receipt of TSX for a month before incurring any 
monthly recurring fees and may act as an incentive to Users to connect 
to TSX. The Exchange believes that it is reasonable and not unfairly 
discriminatory that an Existing Customer would not have its first 
month's MRC for the wireless connection waived, as such User's wireless 
connection to TSX would be in place prior to the Acquisition, and 
therefore would not need to be tested. From the perspective of the 
Existing Customer, the wireless connection to TSX would continue 
without interruption, before and after the Acquisition.
    Moreover, the fees are equitably allocated, reasonable and not 
unfairly discriminatory because the wireless connection for TSX would 
provide Users with an alternative means of connectivity for TSX. Users 
that do not opt to utilize the Exchange's proposed wireless connections 
would still be able to obtain TSX through other methods. For example, 
Users may receive connections to TSX from another User, through a 
telecommunications provider, or over the IP network. Users that opt to 
use wireless connections for TSX would receive the TSX that is 
available to all Users, as all market participants that contract with 
the Toronto Stock Exchange for TSX may receive it.
    For the reasons above, the proposed changes do not unfairly 
discriminate between or among market participants that are otherwise 
capable of satisfying any applicable co-location fees, requirements, 
terms and conditions established from time to time by the Exchange.
    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 proposed fees are 
reasonable, equitable, and not unfairly discriminatory.

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 will not impose any burden on 
competition that is not necessary or appropriate in furtherance of the 
purposes of the Act because, in addition to the proposed services being 
completely voluntary, they are available to all Users on an equal basis 
(i.e. the same 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 believes that allowing Users to receive TSX through a 
wireless connection will not impose any burden on competition that is 
not necessary or appropriate in furtherance of the purposes of the Act 
because such access will satisfy User demand for additional options for 
connectivity to TSX. The proposed wireless connection to TSX would 
compete with fiber optic network connections to TSX, which may be more 
attractive to some Users as they are more reliable and less susceptible 
to weather conditions. Users that do not opt to utilize the proposed 
wireless connection would be able to obtain TSX through other methods, 
including, for example, from another User, through a telecommunications 
provider, or over the IP network.\16\ In this way, the proposed changes 
would enhance competition by helping Users tailor their connectivity 
for TSX to the needs of their business operations by allowing them to 
select the form and optimal latency of the connectivity they use to 
receive TSX that best suits their needs, helping them tailor their Data 
Center operations to the requirements of their business operations.
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    \16\ Currently, at least four third party vendors offer Users 
wireless network connections using wireless equipment installed on 
towers and buildings near the data center. The Exchange does not 
believe that any of such vendors offer Users connections to TSX, but 
is not aware of any impediment to a third party wireless network 
doing so.
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    Through an affiliate, the Exchange would provide the proposed 
wireless connection to TSX through wireless connections into the co-
location center in the Data Center. The proposed connection to TSX will 
not traverse through the pole on the grounds of the Data Center 
utilized for the Existing Third Party Data, as the wireless network 
utilized for the Existing Third Party Data has exclusive rights to 
operate wireless equipment on the Data Center pole.\17\
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    \17\ The Exchange will not sell rights to third parties to 
operate wireless equipment on the Data Center pole due to space 
limitations, security concerns, and the interference that would 
arise between equipment placed too closely together. In addition to 
space issues, there are contractual restrictions on the use of the 
roof that the Exchange has determined would not be met if it offered 
space on the roof for third party wireless equipment. Moreover, 
access to the pole or roof is not required for third parties to 
establish wireless networks that can compete with the Exchange's 
proposed service, as witnessed by the existing wireless networks 
currently serving Users.
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    Finally, the Exchange operates in a highly competitive market in 
which exchanges offer co-location services as a means to facilitate the 
trading and other market activities of those market participants who 
believe that co-

[[Page 12649]]

location enhances the efficiency of their operations. Accordingly, fees 
charged for co-location services are constrained by the active 
competition for the order flow of, and other business from, such market 
participants. If a particular exchange charges excessive fees for co-
location services, affected market participants will opt to terminate 
their co-location arrangements with that exchange, and adopt a possible 
range of alternative strategies, including placing their servers in a 
physically proximate location outside the exchange's data center (which 
could be a competing exchange), or pursuing strategies less dependent 
upon the lower exchange-to-participant latency associated with co-
location. Accordingly, the exchange charging excessive fees would stand 
to lose not only co-location revenues but also the liquidity of the 
formerly co-located trading firms, which could have additional follow-
on effects on the market share and revenue of the affected exchange. 
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

    Because the foregoing 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 for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to Section 19(b)(3)(A)(iii) of the Act \18\ and 
subparagraph (f)(6) of Rule 19b-4 thereunder.\19\ A proposed rule 
change filed under Rule 19b-4(f)(6) normally does not become operative 
prior to 30 days after the date of filing.\20\ Rule 19b-4(f)(6)(iii), 
however, permits the Commission to designate a shorter time if such 
action is consistent with the protection of investors and the public 
interest.\21\
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    \18\ 15 U.S.C. 78s(b)(3)(a)(iii).
    \19\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file 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.
    \20\ 17 CFR 240.19b-4(f)(6)(iii).
    \21\ Id.
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    The Exchange has requested that the Commission waive the 30-day 
operative delay so that the proposal may become operative immediately 
upon filing. The Exchange notes that waiver of the operative delay will 
ensure that Existing Customers are able to continue their existing 
wireless connectivity to TSX after the Acquisition, without any 
cessation of service. The Commission believes that it is consistent 
with the protection of investors and the public interest to waive the 
30-day operative delay and hereby waives the 30-day operative delay and 
designates the proposal operative upon filing.\22\
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    \22\ 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) of the Act \23\ to determine whether the proposed 
rule change should be approved or disapproved.
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    \23\ 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 No. SR-NYSEMKT-2017-09 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 No. SR-NYSEMKT-2017-09. 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 such 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 No. SR-NYSEMKT-2017-09, and should be 
submitted on or before March 27, 2017.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\24\
Eduardo A. Aleman,
Assistant Secretary.
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    \24\ 17 CFR 200.30-3(a)(12).
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[FR Doc. 2017-04201 Filed 3-3-17; 8:45 am]
 BILLING CODE 8011-01-P