[Federal Register Volume 85, Number 248 (Monday, December 28, 2020)]
[Notices]
[Pages 84443-84446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28512]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90732; File Nos. SR-NYSE-2020-73, SR-NYSEAMER-2020-66, 
SR-NYSENAT-2020-28, SR-NYSEArca-2020-82, SR-NYSECHX-2020-26]


Self-Regulatory Organizations; New York Stock Exchange LLC; NYSE 
American LLC; NYSE National, Inc.; NYSE Arca, Inc.; NYSE Chicago, Inc.; 
Notice of Filings of Amendment No. 1 and Order Granting Approval of 
Proposed Rule Changes, Each as Modified by Amendment No. 1, Amending 
the Exchanges' Co-Location Services To Establish Procedures for the 
Allocation of Cabinets to Co-Located Users if Cabinet Inventory Falls 
Below Certain Thresholds

December 18, 2020.

I. Introduction

    On September 2, 2020, New York Stock Exchange LLC, NYSE American, 
LLC, NYSE National, Inc., NYSE Arca, Inc., and NYSE Chicago, Inc. (the 
``Exchanges'') each 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 
cabinets to co-located Users if the Exchange cannot satisfy all User 
demand for cabinets.\3\ Each proposed rule change was published for 
comment in the Federal Register on September 21, 2020 \4\ or September 
22, 2020.\5\ On November 3, 2020, the Commission extended the time 
period within which to approve, disapprove, or institute proceedings to 
determine whether to approve or disapprove the proposed rule 
changes.\6\ The Commission received no comments on the proposed rule 
changes. On December 16, 2020, each Exchange filed Amendment No. 1 to 
its proposed rule change.\7\ Amendment No. 1 replaces and supersedes 
each of the original filings in their entirety. This order provides 
notice of the filings of Amendment No. 1 to each of the proposed rule 
changes, and grants approval of the proposed rule changes, each as 
modified by Amendment No. 1, on an accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See infra note 8 for the definition of ``User.''
    \4\ See Securities Exchange Act Release Nos. 89879 (September 
15, 2020), 85 FR 59361 (SR-NYSE-2020-73); 89880 (September 15, 
2020), 85 FR 59365 (SR-NYSEAMER-2020-66) (each, a ``Notice'').
    \5\ See Securities Exchange Act Release Nos. 89884 (September 
16, 2020), 85 FR 59576 (SR-NYSENAT-2020-28); 89883 (September 16, 
2020), 85 FR 59568 (SR-NYSEArca-2020-82); 89886 (September 16, 2020) 
85 FR 59582 (SR-NYSECHX-2020-26) (each, a ``Notice''). For ease of 
reference, page citations to the Notices refer to the Notice for SR-
NYSE-2020-73, supra note 4, as published in the Federal Register.
    \6\ See Securities Exchange Act Release Nos. 90330 (November 3, 
2020), 85 FR 71364 (November 9, 2020) (SR-NYSE-2020-73) and 90327 
(November 3, 2020), 5 FR 71373 (November 9, 2020) (SR-NYSEAMER-2020-
66), in which the Commission designated December 20, 2020 as the 
date by which it should approve, disapprove, or institute 
proceedings to determine whether to disapprove these proposed rule 
changes; and Securities Exchange Act Release Nos. 90329 (November 3, 
2020) 85 FR 71381 (November 9, 2020) (SR-NYSENAT-2020-28); 90326 
(November 3, 2020) 85 FR 71365 (November 9, 2020) (SR-NYSEArca-2020-
82); 90328 (November 3, 2020) 85 FR 71373 (November 9, 2020) 85 FR 
71384 (November 9, 2020) (SR-NYSECHX-2020-26), in which the 
Commission designated December 21, 2020 as the date by which it 
should approve, disapprove, or institute proceedings to determine 
whether to disapprove these proposed rule changes.
    \7\ Amendment No. 1 revises the proposals by: (i) Adding 
representations that the Exchanges are not presently in a situation 
where they cannot satisfy all User demand for cabinets; do not 
anticipate being so in the foreseeable future; and are currently 
working to expand the number of cabinets available in co-location; 
(ii) stating that the Cabinet Threshold level of 40 cabinets (chosen 
as a threshold not easily triggered) is offered as a reasonable 
buffer during which the Purchasing Limits would apply before the 
Cabinet Waitlist would become effective; (iii) clarifying that the 
determination of the whether the Cabinet Threshold is reached is not 
dependent on whether cabinets are configured to be subdivided into 
partial cabinets; (iv) specifying that if the Purchasing Limit of a 
maximum of four new dedicated cabinets applies, the maximum may be 
comprised of a mix of dedicated and partial cabinets, with two 
partial cabinets counting as one dedicated cabinet; (v) clarifying 
that if a User requests, in writing, a number of cabinets that, if 
provided, would cause the available cabinet inventory to be below 40 
cabinets, the Purchasing Limits would only apply to the portion of 
the User's order below the Cabinet Threshold; and (vi) deleting the 
initially proposed 8 kW power limit for new dedicated cabinets when 
the cabinet Purchasing Limits are in effect. Amendment No 1 for each 
filing is available on the Commission's website at: https://www.sec.gov/comments/sr-nyse-2020-73/srnyse202073-8154095-226755.pdf; https://www.sec.gov/comments/sr-nyseamer-2020-66/srnyseamer202066-8154097-226756.pdf; https://www.sec.gov/comments/sr-nysenat-2020-28/srnysenat202028-8154096-226737.pdf; https://www.sec.gov/comments/sr-nysearca-2020-82/srnysearca202082-8154094-226736.pdf; https://www.sec.gov/comments/sr-nysechx-2020-26/srnysechx202026-8154093-226754.pdf.
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II. Description of the Proposed Rule Changes, as Modified by Amendment 
No. 1.

    As more fully set forth in the Notices and their co-location fee 
schedules, the Exchanges offer co-location customers (``Users'') \8\ 
options for purchasing cabinet space to house their servers and other 
equipment in co-location.\9\ Cabinets are offered as dedicated cabinets 
or partial cabinets, and currently made available on a first-come, 
first-serve basis.\10\ Users are assessed an initial fee depending on 
type of cabinet purchased, and a monthly fee based on the power, in 
kilowatts (kW), they purchase with the cabinet.\11\ Users can also 
purchase

[[Page 84444]]

``PNU cabinets,'' which are cabinets in which power is not utilized. 
PNU cabinets are reserved cabinet space that may be converted to a 
dedicated cabinet when the User requests it.\12\
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    \8\ For purposes of the Exchanges' 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. 76008 (September 29, 2015), 80 FR 60190 
(October 5, 2015) (SR-NYSE-2015-40). A User that incurs co-location 
fees for a particular co-location service pursuant to any one 
Exchange's co-location price list is not subject to co-location fees 
for the same co-location service charged by an affiliated SRO. See 
Notice, supra note 4 at n. 5.
    \9\ See Notice, supra note 4 at 59362. See also, e.g., NYSE 
Price List, available at: https://www.nyse.com/publicdocs/nyse/markets/nyse/NYSE_Price_List.pdf.
    \10\ See Notice, supra note 5 at 59362.
    \11\ Partial cabinets are available in 8-rack units of space 
with power with options to purchase 1 kW (for $1,500 per month) or 
2kW (for $2,700 per month) of power. A dedicated cabinet includes 
enough space for approximately four separate eight-rack units and 
includes the following options to purchase power: 4-8 kW (for $1,200 
per month), 9-20 kW (for $1,050 per month), 21-40 kW (for $950 per 
month), and 41 or more kW (for $900 per month). See Securities 
Exchange Act Release Nos. 70978 (December 4, 2013), 78 FR 77739, 
77740 (December 24, 2013) (SR-NYSE-2013-81); 71131 (December 18, 
2013), 78 FR 77750 (December 24, 2013) (SR-NYSEMKT-2013-103); 71130 
(December 18, 2013), 78 FR 77765 (December 24, 2013) (SR-NYSEArca-
2013-143); 83351 (May 31, 2018), 83 FR 26314 (June 6, 2018) (SR-
NYSENAT-2018-07);87408 (October 28, 2019), 84 FR 58778 (November 1, 
2019) (SR-NYSECHX-2019-12) (adding partial cabinets and related 
pricing). See Securities Exchange Act Release Nos. 62732 (August 16, 
2010), 75 FR 51512, 51513 (August 20, 2010) (SR-NYSE-2010-56); 62960 
(September 21, 2010), 75 FR 59310 (September 27, 2010) (SR-NYSE-
2010-56); 65237 (August 31, 2011), 76 FR 55432 (September 7, 2011) 
(SR-NYSE-2011-46); 62731 (August 16, 2010), 75 FR 51515 (August 20, 
2010) (SR-NYSEAmex-2010-80); 62961 (September 21, 2010), 75 FR 59299 
(September 27, 2010) (SR-NYSEAmex-2010-80); 65240 (August 31, 2011), 
76 FR 55434 (September 7, 2011) (SR-NYSEAmex-2011-65); 63275 
(November 8, 2010), 75 FR 70048 (November 16, 2010) (SR-NYSEArca-
2010-100); 65236 (August 31, 2011), 76 FR 55437 (September 7, 2011) 
(SR-NYSEArca-2011-65); 83351 (May 31, 2018), 83 FR 26314 (June 6, 
2018) (SR-NYSENAT-2018-07);87408 (October 28, 2019), 84 FR 58778 
(November 1, 2019) (SR-NYSECHX-2019-12) (adding dedicated cabinets 
and related pricing).
    \12\ PNU cabinets are available at a monthly charge of $360 per 
kW allocated to the PNU cabinet. See Securities Exchange Act Release 
Nos. 70913 (November 21, 2013), 78 FR 70987, 70988 (November 27, 
2013) (SR-NYSE-2013-74); 70914 (November 21, 2013), 78 FR 71000 
(November 27, 2013) (SR-NYSEMKT-2013-93); 70916 (November 21, 2013), 
78 FR 70989 (November 27, 2013) (SR-NYSEArca-2013-124); 83351 (May 
31, 2018), 83 FR 26314 (June 6, 2018) (SR-NYSENAT-2018-07); 87408 
(October 28, 2019), 84 FR 58778 (November 1, 2019) (SR-NYSECHX-2019-
12).
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    The Exchanges propose to amend their co-location rules to add new 
General Notes 7 and 8 to each fee schedule setting forth procedures for 
allocating cabinet space if, in the future, a situation arises where 
the Exchanges cannot fully satisfy User demand for the purchase of new 
cabinets.\13\ The Exchanges represent that they are not presently in 
such a situation, do not anticipate being so in the foreseeable future, 
and are currently working to expand the number of cabinets available in 
co-location, but believe that it would be prudent to have cabinet 
allocation procedures in place to address demand for the purchase of 
new cabinets if needed.\14\
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    \13\ See Notice, supra note 4 at 59362.
    \14\ See Amendment No. 1.
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    As further described below, if cabinet inventory falls to 40 
cabinets or fewer (the ``Cabinet Threshold''), certain limits 
(``Purchasing Limits'') would apply to the purchase of new cabinets and 
remain in effect until unallocated cabinet inventory is more than 40 
cabinets. Further, if the available cabinet inventory is zero, the 
Exchanges would create and maintain a waitlist (``Cabinet Waitlist'') 
until unallocated cabinet inventory is more than 10 cabinets.
    If unallocated cabinet inventory is at or below 40 cabinets, 
whether or not such cabinets are configured to be subdivided into 
partial cabinets, the following Purchasing Limits would apply: \15\ (i) 
A User with PNU cabinets would be required to either convert its PNU 
cabinets into dedicated cabinets or relinquish its PNU cabinets before 
being permitted to purchase new cabinets; \16\ (ii) a User's purchase 
of new cabinets (dedicated and partial) would be limited to a maximum 
of four dedicated cabinets, which maximum may be comprised of a mix of 
dedicated and partial cabinets, with two partial cabinets counting as 
one dedicated cabinet; \17\ (iii) If a User requests, in writing, a 
number of cabinets that, if provided, would cause the available cabinet 
inventory to be below 40 cabinets, the Purchasing Limits would only 
apply to the portion of the User's order below the Cabinet Threshold; 
\18\ (iv) a User purchasing new cabinets would be required to wait 30 
days from the date of its signed order form before purchasing new 
cabinets again; \19\ and (v) new PNU cabinets would not be offered.\20\ 
These Purchasing Limits would be discontinued when the unallocated 
cabinet inventory is more than 40 cabinets.\21\
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    \15\ See Notice, supra note 4 at 59362 and Amendment No. 1.
    \16\ See Notice, supra note 4, at 59363.
    \17\ See id. and Amendment No. 1 (specifying that the maximum 
may be comprised of a mix of dedicated and partial cabinets, with 
two partial cabinets counting as one dedicated cabinet.) In the 
original Notices, the proposed that when the Purchasing Limits were 
in effect, Users would be limited to purchasing 8 kW of power when 
purchasing a new dedicated cabinet. In Amendment No. 1, the 
Exchanges deleted this proposed limitation. Noting that the they 
makes dedicated cabinets available with standard power allocation of 
either 4 kW or 8 kW, and that partial cabinets are available in 
increments of eight-rack units of space, and each eight-rack unit 
may be allocated up to 2 kW, the Exchanges also noted that currently 
a User may request power upgrades to dedicated cabinets beyond 8 kW. 
See Securities Exchange Act Release Nos. 70978 (December 18, 2013), 
78 FR 77739 (December 24, 2013) (SR-NYSE-2013-81); 71131 (December 
18, 2013), 78 FR 77750 (December 24, 2013) (SR-NYSEMKT-2013-103); 
71130 (December 18, 2013), 78 FR 77765 (December 24, 2014) (SR-
NYSEArca-2013-143); 83351 (May 31, 2018), 83 FR 26314 (June 6, 2018) 
(SR-NYSENAT-2018-07); and 87408 (October 28, 2019), 84 FR 58778 
(November 1, 2019) (SR-NYSECHX-2019-12).
    \18\ See Amendment No. 1. For example, if the Exchange had 50 
available cabinets and a User requested to purchase 20 cabinets, the 
Purchasing Limits would not apply to the User's purchase of the 
first 10 cabinets. Once the available inventory reached 40 cabinets, 
the Purchasing Limits would be activated, limiting the User's 
purchase of additional cabinets to 4 cabinets. In all, the User 
would be permitted to purchase a total of 14 cabinets out of its 
original order of 20 cabinets. Id.
    \19\ See Notice, supra note 4, at 59363.
    \20\ Id.
    \21\ Id.
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    If the available cabinet inventory is zero, or a User submits a 
written request for a number of cabinets that, if provided, would cause 
the available cabinet inventory to be zero, the Exchanges would create 
and maintain a Cabinet Waitlist, as follows: \22\ (i) A User with PNU 
cabinets would be placed on the waitlist for the portion of its new 
cabinet request that exceeds its existing PNU cabinets (subject to the 
Purchasing Limits), and the User would not be placed on the waitlist if 
it could meet its request by converting its PNU cabinets to dedicated 
cabinets; \23\ (ii) a User would be placed on the waitlist based on the 
date its signed order is received and may only have one order for new 
cabinets that is subject to the Purchasing Limits on the waitlist at a 
time; (iii) as cabinets become available, the Exchanges would offer 
them to the User at the top of the waitlist.\24\
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    \22\ Id.
    \23\ Id.
    \24\ Id.
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    In addition, a User would be removed from the Cabinet Waitlist when 
its order is completed and would remain at the top of the Cabinet 
Waitlist if its order is not completed.\25\ A User would be removed 
from the Cabinet Waitlist (a) at the User's request or (b) if the User 
turns down an offer of a cabinet of the same size it requested in its 
order.\26\ The User may turn down an Exchange's offer of a cabinet of a 
different size than the User requested in its order and remain at the 
top of the waitlist until its order is completed.\27\ A User that is 
removed from the Cabinet Waitlist but subsequently submits a new 
written order for cabinets would be added to the bottom of the Cabinet 
Waitlist.\28\ The Exchanges would cease use of the Cabinet Waitlist 
when unallocated cabinet inventory is more than 10 cabinets.\29\
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    \25\ Id.
    \26\ Id.
    \27\ Id.
    \28\ Id.
    \29\ Id.
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III. Discussion and Commission Findings

    After careful review, the Commission finds that the proposed rule 
changes, each as modified by Amendment No. 1, are consistent with the 
requirements of the Act and the rules and regulations thereunder 
applicable to a national securities exchange.\30\ In particular, the 
Commission finds that the proposed rule changes, each is modified by 
Amendment No. 1, are consistent with Section 6(b)(5) of the Act,\31\ 
which requires that the rules of a national securities exchange be 
designed, among

[[Page 84445]]

other things, to prevent fraudulent and manipulative acts and 
practices, 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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    \30\ In approving this proposed rule change, as modified by 
Amendment No. 1, the Commission notes that it has considered the 
proposed rule's impact on efficiency, competition, and capital 
formation. See 15 U.S.C. 78c(f).
    \31\ 15 U.S.C. 78f(b)(5).
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    The Exchanges propose rational, objective procedures for allocating 
cabinet space in a situation in which all User demand cannot fully be 
satisfied, and particularly for responding to User demand for new 
cabinets when inventory falls and remains below specified thresholds. 
As noted above, the Exchanges represent that they are not presently in 
such a situation, do not anticipate being so in the foreseeable future, 
and are currently working to expand the number of cabinets available in 
co-location.
    The proposed cabinet allocation procedures, establishing a 
Purchasing Limit on order size for new cabinet space when the Cabinet 
Threshold is reached and a Cabinet Waitlist when inventory falls to 
zero, are measures designed to respond to increasing demand for 
cabinets and facilitate an equitable distribution of new cabinet 
purchases if cabinet inventory becomes limited. The Commission notes 
the Exchanges' representation that the proposed Cabinet Threshold of 40 
cabinets would not be easily triggered, yet would establish a 
reasonable buffer before the Cabinet Waitlist is effective. Because the 
Purchasing Limits provide a method for making limited cabinet space 
available to Users requesting new cabinets that is transparent, as well 
as reasonably designed to accommodate Users' needs while mitigating the 
potential for some Users to seek to obtain additional cabinet space 
resulting in limitations on other Users, the Commission believes the 
Purchasing Limits would promote just and equitable principles of trade 
and protect investors and the public interest and are not designed to 
permit unfair discrimination between customers, issuers, brokers or 
dealers.
    Further, the Commission believes that the establishment of the 
Cabinet Waitlist based on the date of receipt of signed orders, 
limiting the size and number of orders a User may have on the waitlist 
at any one time, and removing a User from the waitlist if it turns down 
a cabinet that is the size that it requested, should prevent Users from 
utilizing the waitlist as a method to obtain a greater portion of the 
cabinets available, thereby facilitating a more equitable distribution 
of cabinets. Similarly, a 30-day delay before a User subject to the 
Purchasing Limits could purchase cabinets again, is reasonably designed 
to prevent a User from obtaining a greater portion of the cabinets 
available.
    For the foregoing reasons, Commission finds that the proposals, 
each as modified by Amendment No. 1, are consistent with the Act.

IV. Solicitation of Comments on Amendment No. 1

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether Amendment No. 1 
to 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 Numbers SR-NYSE-2020-73, SR-NYSEAMER-2020-66, SR-NYSENAT-2020-28, 
SR-NYSEArca-2020-82, SR-NYSECHX-2020-26 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 Numbers SR-NYSE-2020-73, SR-
NYSEAMER-2020-66, SR-NYSENAT-2020-28, SR-NYSEArca-2020-82, SR-NYSECHX-
2020-26. 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 (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 website 
viewing and printing in the Commission's Public Reference Room, 100 F 
Street NE, Washington, DC 20549, on official business days between the 
hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be 
available for inspection and copying at the principal office of the 
Exchange. All comments received will be posted without change. Persons 
submitting comments are cautioned that we do not redact or edit 
personal identifying information from comment submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Numbers SR-NYSE-2020-73, SR-NYSEAMER-
2020-66, SR-NYSENAT-2020-28, SR-NYSEArca-2020-82, SR-NYSECHX-2020-26 
and should be submitted on or before January 19, 2021.

V. Accelerated Approval of Proposed Rule Changes, Each as Modified by 
Amendment No. 1

    The Commission finds good cause to approve the proposed rule 
changes, each as modified by Amendment No. 1, prior to the 30th day 
after the date of publication of notice of Amendment No. 1 in the 
Federal Register. As noted above, Amendment No. 1. revises the 
proposals by: (i) Adding the Exchanges' representations that they are 
not presently in a situation where they cannot satisfy all User demand 
for cabinets, do not anticipate being so in the foreseeable future, and 
are currently working to expand the number of cabinets available in co-
location; (ii) specifying that the Cabinet Threshold level of 40 
cabinets (chosen as a threshold not easily triggered) is offered as a 
reasonable buffer during which the Purchasing Limits would apply before 
the Cabinet Waitlist would become effective; (iii) clarifying that the 
determination of the whether the Cabinet Threshold is reached is not 
dependent on whether cabinets are configured to be subdivided into 
partial cabinets, (iv) specifying that if the Purchasing Limit of a 
maximum of four new dedicated cabinets applies, the maximum may be 
comprised of a mix of dedicated and partial cabinets, with two partial 
cabinets counting as one dedicated cabinet; (v) clarifying that if a 
User requests, in writing, a number of cabinets that, if provided, 
would cause the available cabinet inventory to be below 40 cabinets, 
the Purchasing Limits would only apply to the portion of the User's 
order below the Cabinet Threshold; and (vi) deleting the initially 
proposed 8 kW power limit for new dedicated cabinets when the cabinet 
Purchasing Limits are in effect. The Commission believes that Amendment 
No. 1 provides additional clarity and detail to the rule text and 
additional analysis and examples of aspects of the proposal, thereby 
facilitating the Commission's ability to make the

[[Page 84446]]

findings set forth above to approve the proposal.
    Accordingly, pursuant to Section 19(b)(2) of the Exchange Act,\32\ 
the Commission finds good cause to approve the proposed rule changes, 
each as modified by Amendment No. 1, on an accelerated basis.
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    \32\ 15 U.S.C. 78s(b)(2).
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VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\33\ that the proposed rule changes (SR-NYSE-2020-73, SR-NYSEAMER-
2020-66, SR-NYSENAT-2020-28, SR-NYSEArca-2020-82, SR-NYSECHX-2020-26), 
each as modified by Amendment No. 1 be, and hereby are, approved on an 
accelerated basis.
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    \33\ See id.

    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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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-28512 Filed 12-23-20; 8:45 am]
BILLING CODE 8011-01-P