[Federal Register Volume 86, Number 244 (Thursday, December 23, 2021)]
[Notices]
[Pages 73026-73029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27815]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-93810; File Nos. SR-NYSE-2021-67, SR-NYSEAMER-2021-43, 
SR-NYSEArca-2021-97, SR-NYSECHX-2021-17, SR-NYSENAT-2021-23]


Self-Regulatory Organizations; New York Stock Exchange LLC, NYSE 
American LLC, NYSE Arca, Inc., NYSE Chicago, Inc., and NYSE National, 
Inc.; Suspension of and Order Instituting Proceedings To Determine 
Whether To Approve or Disapprove Proposed Rule Changes To Offer 
Wireless Connectivity to CME Group Data and Establish Associated Fees

December 17, 2021.

I. Introduction

    On November 3, 2021, New York Stock Exchange LLC, NYSE American 
LLC, NYSE Arca, Inc., NYSE Chicago, Inc., and NYSE National, Inc. 
(collectively, 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 amend their respective fee 
schedules to offer wireless connectivity to CME Group, Inc. (``CME 
Group'') market data (``CME Group Data'') and establish associated 
fees. Each proposed rule change was immediately effective upon filing 
with the Commission pursuant to Section 19(b)(3)(A) of the Act.\3\ The 
proposed rule changes were published for comment in the Federal 
Register on November 18, 2021.\4\ The Commission received no comment 
letters on the proposals. Pursuant to Section 19(b)(3)(C) of the 
Act,\5\ the Commission is hereby: (1) Temporarily suspending File Nos. 
SR-NYSE-2021-67, SR-NYSEAMER-2021-43, SR-NYSEArca-2021-97, SR-NYSECHX-
2021-17, and SR-NYSENAT-2021-23; and (2) instituting proceedings to 
determine whether to approve or disapprove File Nos. SR-NYSE-2021-67, 
SR-NYSEAMER-2021-43, SR-NYSEArca-2021-97, SR-NYSECHX-2021-17, and SR-
NYSENAT-2021-23.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ See Securities Exchange Act Release Nos. 93563 (November 12, 
2021), 86 FR 64561 (November 18, 2021) (SR-NYSE-2021-67) 
(``Notice''); 93561 (November 12, 2021), 86 FR 64580 (November 18, 
2021) (SR-NYSEAMER-2021-43); 93564 (November 12, 2021), 86 FR 64570 
(November 18, 2021) (SR-NYSEArca-2021-97); 93565 (November 12, 
2021), 86 FR 64556 (November 18, 2021) (SR-NYSECHX-2021-17); and 
93567 (November 12, 2021), 86 FR 64576 (November 18, 2021) (SR-
NYSENAT-2021-23). For ease of reference, citations to the Notice(s) 
are to the Notice for SR-NYSE-2021-67.
    \5\ 15 U.S.C. 78s(b)(3)(C).
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II. Description of the Proposed Rule Changes

    The Exchanges propose to amend their respective fee schedules 
regarding colocation services and fees to offer Users \6\ wireless 
connectivity to CME Group Data for associated fees.\7\ The proposed 
wireless connection would enable a User to receive CME Group Data \8\ 
in the colocation center in the Mahwah, New Jersey data center 
(``Mahwah Data Center'').\9\
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    \6\ For purposes of the Exchanges' colocation services, a 
``User'' means any market participant that requests to receive 
colocation services directly from the Exchanges. See Notice, supra 
note 4, at 64561 n.4 (citing Securities Exchange Act Release No. 
76008 (September 29, 2015), 80 FR 60190 (October 5, 2015) (SR-NYSE-
2015-40)).
    \7\ The Exchanges state that they expect the proposed rule 
change would become operative no later than March 31, 2022, and that 
they will announce the date that the wireless connectivity to CME 
Group Data will be available through a customer notice. See id. at 
645621.
    \8\ The User would pay an unaffiliated third party separately 
for the data content. See id. at 64562.
    \9\ See id. The Exchanges state that Intercontinental Exchange, 
Inc. (``ICE'') operates the Mahwah Data Center through its ICE Data 
Services (``IDS'') business. The Exchanges themselves are indirect 
subsidiaries of ICE. According to the Exchanges, the proposed 
service would be provided by IDS pursuant to an agreement with a 
non-ICE entity, and IDS does not own the wireless network that would 
be used to provide the service. See id. at 64561 n.8.
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    The Exchanges state that the available CME Group Data would not 
include all possible CME Group data feeds.\10\ Rather, the proposed 
wireless service would only provide connectivity to a selection of CME 
Group market data for which IDS determines there is User demand.\11\ A 
User would then determine the symbols for which it would receive data, 
which could include data regarding some or all of the symbols for which 
IDS provides connectivity.\12\
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    \10\ According to the Exchanges, there is limited bandwidth 
available on the wireless network to colocation and currently dozens 
of CME Group data feeds, so providing connectivity to all of these 
feeds would use a large amount of bandwidth. See id. at 64562.
    \11\ The Exchanges state that IDS similarly provides 
connectivity to a selection of data, rather than entire feeds, over 
a wireless connection to the Markham, Canada third party data 
center. See id. The Exchanges also state that they understand that 
the third parties providing wireless connectivity to CME Group 
market data to the Mahwah Data Center and other data centers in New 
Jersey follow a substantially similar model, offering connectivity 
to a selection of market data rather than entire feeds. See id. at 
64562 n.10.
    \12\ The Exchanges state that they would not have visibility 
into which portion of the CME Group Data a given User receives. See 
id. at 64562.
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    The Exchanges state that they currently provide Users with wireless 
connections to eight market data feeds

[[Page 73027]]

or combinations of feeds from third party markets (``Existing Third 
Party Data''), as well as wired connections to 43 market data 
feeds.\13\ As with Existing Third Party Data, if a User purchased two 
wireless connections to CME Group data, it would pay two non-recurring 
initial charges.\14\ Each of these wireless connections would include 
the use of one port for connectivity to CME Group Data.\15\ If a User 
also connects to Existing Third Party Data, it would not be able to use 
the same port that it uses for connectivity to CME Group Data to 
connect to such Existing Third Party Data,\16\ and would receive the 
use of one port for connectivity to Existing Third Party Data.\17\
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    \13\ See id.
    \14\ See id.
    \15\ A User would not pay a fee for the use of such port. See 
id.
    \16\ See id.
    \17\ See id. at 64562 n.11. The Exchanges state that a User that 
connects to both CME Group Data and Existing Third Party Data would 
accordingly have at least two ports, and would not be separately 
charged for such ports. See id. at 64562. In addition, a User may 
purchase additional ports. See id. at 64562 n.11.
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    For each wireless connection to CME Group Data, the Exchanges 
propose to charge a User a $5,000 non-recurring initial charge and a 
monthly recurring charge of $6,000.\18\
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    \18\ See id. at 64562. As specified in the Exchanges' respective 
fee schedules, 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 other 
Exchanges. See id. at 64561 n.4
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III. Suspension of the Proposed Rule Changes

    Pursuant to Section 19(b)(3)(C) of the Act,\19\ at any time within 
60 days of the date of filing of an immediately effective proposed rule 
change pursuant to Section 19(b)(1) of the Act,\20\ the Commission 
summarily may temporarily suspend the change in the rules of a self-
regulatory organization (``SRO'') 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. As discussed below, the Commission believes a temporary 
suspension of the proposed rule changes is necessary and appropriate to 
allow for additional analysis of the proposed rule changes' consistency 
with the Act and the rules thereunder.
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    \19\ 15 U.S.C. 78s(b)(3)(C).
    \20\ 15 U.S.C. 78s(b)(1).
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    In support of the proposed fees, the Exchanges generally argue that 
they are reasonable, equitable, and not unfairly discriminatory because 
use of the proposed services is completely voluntary and alternatives 
to them are available.\21\ The Exchanges maintain that they operate in 
a highly competitive market in which exchanges and other vendors (e.g., 
Hosting Users \22\) offer colocation services as a means to facilitate 
the trading and other market activities of those market participants 
who believe that colocation enhances the efficiency of their 
operations.\23\ The Exchanges maintain that fees charged for co-
location services are constrained by active competition for the order 
flow of, and other business from, such market participants.\24\ The 
Exchanges argue that Users that do not opt to use the Exchange's 
proposed wireless connection would still be able to obtain CME Group 
market data using other methods; namely, from another User, a third 
party wireless connection, or through an IDS or third party fiber 
connection.\25\
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    \21\ See Notice, supra note 4, at 64563-65.
    \22\ ``Hosting'' is a service offered by a User to another 
entity in the User's space within the Mahwah Data Center. The 
Exchanges allow Users to act as Hosting Users for a monthly fee. 
See, e.g., Securities Exchange Act Release No. 76008 (September 29, 
2015), 80 FR 60190 (October 5, 2015) (SR-NYSE-2015-40).
    \23\ See Notice, supra note 4, at 64563.
    \24\ See id. at 64565.
    \25\ See id. at 64563.
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    Regarding third party wireless connections, the Exchanges assert 
that, based on the information available to them, at least one market 
participant provides wireless connectivity to CME Group market data in 
the Mahwah Data Center, and does so at the same or similar speed as the 
proposed connection to CME Group Data and at the same or similar 
cost.\26\ According to the Exchanges, before entering the Mahwah Data 
Center, the proposed wireless connection would lead to a pole that is 
owned by a third party and is not on the grounds on the Mahwah Data 
Center, from where a fiber connection would then lead into the Mahwah 
Data Center.\27\ Upon entering the grounds of the Mahwah Data Center, 
the proposed connection to CME Group Data and the existing third party 
wireless connection to CME Group Data would follow the same route 
within the Mahwah Data Center: Both would enter through a meet me room, 
connect to equipment in colocation, and then connect to any Users that 
are customers.\28\ The Exchanges state that therefore they do not 
believe that IDS has an advantage over the third party in providing the 
proposed connectivity.\29\
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    \26\ See id.
    \27\ See id.
    \28\ See id.
    \29\ See id.
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    In addition, the Exchanges state that IDS already offers fiber 
connections to CME Group market data to Users, and believe that at 
least two third party market participants also offer such fiber 
connections to CME Group market data.\30\ The Exchanges moreover state 
that a User may create a proprietary wireless connection or connect 
through another User in order to connect to CME Group market data, and 
believe that at least two market participants already provide wireless 
connectivity to CME Group market data to other data centers in New 
Jersey.\31\
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    \30\ See id. According to the Exchanges, market participants' 
considerations in determining what connectivity to purchase may 
include latency; the amount of network uptime; the equipment that 
the network uses; the cost of the connection; and the applicable 
contractual provisions. See id. The Exchanges state that wireless 
messages have lower latency than messages travelling through fiber 
optics. The Exchanges also state that, as a general rule, wireless 
networks have less uptime than fiber networks. See id. at 64562. In 
this regard, the Exchanges claim that fiber network connections may 
be more attractive to some market participants, as they are more 
reliable and less susceptible to weather conditions. See id. at 
64563.
    \31\ See id.
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    The Exchanges also argue that the proposed pricing is reasonable 
because it would allow the Exchanges to defray or cover the costs 
associated with offering Users a wireless connection to CME Group Data, 
while providing Users the benefit of receiving CME Group Data within 
colocation and with a lower latency over fiber optic options.\32\ In 
this regard, the Exchanges further claim that in order to offer the 
proposed wireless connection to CME Group Data, they must provide, 
maintain, and operate the Mahwah Data Center facility hardware and 
technology infrastructure.\33\
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    \32\ See id. at 64563-64. With respect to the proposed non-
recurring charge when a User initially purchases a wireless 
connection to CME Group Data, the Exchanges also state that the 
costs associated with installing wireless connections are 
incrementally higher than those associated with installing fiber 
optics-based solutions. See id. at 64564.
    \33\ See id.
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    The Exchanges argue that the proposals provide for an equitable 
allocation of fees and are not unfairly discriminatory, again 
contending that the proposed services are voluntary and that 
alternatives to them are available.\34\ The Exchanges also argue that 
proposed services would be available to all Users on an equal basis, 
and that all Users that voluntarily select wireless connections to CME 
Group Data would be charged the same amount for the same services.\35\
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    \34\ See id. at 64564-65.
    \35\ See id.
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    Lastly, the Exchanges argue that the proposed rule changes do not 
impose an

[[Page 73028]]

unnecessary or inappropriate burden on competition, likewise contending 
that the proposed services are voluntary and that alternatives to them 
are available.\36\ The Exchanges reiterate their argument that they 
operate in a highly competitive market in which exchanges and other 
vendors offer colocation services as a means to facilitate the trading 
and other market activities of those market participants who believe 
that colocation enhances the efficiency of their operations.\37\ 
According to the Exchanges, the proposals do not affect competition 
among national securities exchanges or among members of the Exchanges, 
but rather between IDS and its commercial competitors.\38\
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    \36\ See id. at 64565.
    \37\ See id.
    \38\ See id.
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    When exchanges file their proposed rule changes with the 
Commission, including fee filings, they are required to provide a 
statement supporting the proposal's basis under the Act and the rules 
and regulations thereunder applicable to the exchange.\39\ The 
instructions to Form 19b-4, on which exchanges file their proposed rule 
changes, specify that such statement ``should be sufficiently detailed 
and specific to support a finding that the proposed rule change is 
consistent with [those] requirements.'' \40\
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    \39\ See 17 CFR 240.19b-4 (Item 3 entitled ``Self-Regulatory 
Organization's Statement of the Purpose of, and Statutory Basis for, 
the Proposed Rule Change'').
    \40\ See id.
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    Section 6 of the Act, including Sections 6(b)(4), (5), and (8), 
require the rules of an exchange to: (1) Provide for the equitable 
allocation of reasonable fees among members, issuers, and other persons 
using the exchange's facilities; \41\ (2) perfect the mechanism of a 
free and open market and a national market system, protect investors 
and the public interest, and not be designed to permit unfair 
discrimination between customers, issuers, brokers, or dealers; \42\ 
and (3) not impose any burden on competition not necessary or 
appropriate in furtherance of the purposes of the Act.\43\
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    \41\ 15 U.S.C. 78f(b)(4).
    \42\ 15 U.S.C. 78f(b)(5).
    \43\ 15 U.S.C. 78f(b)(8).
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    In temporarily suspending the Exchanges' proposed rule changes, the 
Commission intends to further consider whether the proposed fees for 
wireless connectivity to CME Group Data are consistent with the 
statutory requirements applicable to a national securities exchange 
under the Act. In particular, the Commission will consider whether the 
proposed rule changes satisfy the standards under the Act and the rules 
thereunder requiring, among other things, that an exchange's rules 
provide for the equitable allocation of reasonable fees among members, 
issuers, and other persons using its facilities; not permit unfair 
discrimination between customers, issuers, brokers or dealers; and do 
not impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act.\44\
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    \44\ See 15 U.S.C. 78f(b)(4), (5), and (8), respectively.
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    Therefore, the Commission finds that it is appropriate in the 
public interest, for the protection of investors, and otherwise in 
furtherance of the purposes of the Act, to temporarily suspend the 
proposed rule changes.\45\
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    \45\ For purposes of temporarily suspending the proposed rule 
changes, the Commission has considered the proposed rules' impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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IV. Proceedings To Determine Whether To Approve or Disapprove the 
Proposed Rule Changes

    In addition to temporarily suspending the proposals, the Commission 
also hereby institutes proceedings pursuant to Sections 19(b)(3)(C) 
\46\ and 19(b)(2)(B) of the Act \47\ to determine whether the 
Exchanges' proposed rule changes should be approved or disapproved. 
Institution of proceedings does not indicate that the Commission has 
reached any conclusions with respect to any of the issues involved. 
Rather, the Commission seeks and encourages interested persons to 
provide additional comment on the proposed rule changes to inform the 
Commission's analysis of whether to approve or disapprove the proposed 
rule changes.
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    \46\ 15 U.S.C. 78s(b)(3)(C). Once the Commission temporarily 
suspends a proposed rule change, Section 19(b)(3)(C) of the Act 
requires that the Commission institute proceedings under Section 
19(b)(2)(B) to determine whether a proposed rule change should be 
approved or disapproved.
    \47\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Act,\48\ the Commission is 
providing notice of the grounds for possible disapproval under 
consideration:
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    \48\ Id. Section 19(b)(2)(B) of the Act also provides that 
proceedings to determine whether to disapprove a proposed rule 
change must be concluded within 180 days of the date of publication 
of notice of the filing of the proposed rule change. See id. The 
time for conclusion of the proceedings may be extended for up to 60 
days if the Commission finds good cause for such extension and 
publishes its reasons for so finding, or if the exchange consents to 
the longer period. See id.
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     Whether the Exchanges have demonstrated how their proposed 
fees are consistent with Section 6(b)(4) of the Act, 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;'' \49\
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    \49\ 15 U.S.C. 78f(b)(4).
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     Whether the Exchanges have demonstrated how their proposed 
fees are consistent with Section 6(b)(5) of the Act, which requires, 
among other things, that the rules of a national securities exchange 
not be ``designed to permit unfair discrimination between customers, 
issuers, brokers, or dealers;'' \50\ and
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    \50\ 15 U.S.C. 78f(b)(5).
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     Whether the Exchanges have demonstrated how their proposed 
fees are consistent with Section 6(b)(8) of the Act, which requires 
that the rules of a national securities exchange ``not impose any 
burden on competition not necessary or appropriate in furtherance of 
the purposes of [the Act].'' \51\
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    \51\ 15 U.S.C. 78f(b)(8).
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    As discussed in Section III above, the Exchanges made various 
arguments in support of their proposals. The Commission believes that 
there are questions as to whether the Exchanges have provided 
sufficient information to demonstrate that the proposed fees are 
consistent with the Act and the rules thereunder.
    Under the Commission's Rules of Practice, the ``burden to 
demonstrate that a proposed rule change is consistent with the [Act] 
and the rules and regulations issued thereunder . . . is on the [SRO] 
that proposed the rule change.'' \52\ The description of a proposed 
rule change, its purpose and operation, its effect, and a legal 
analysis of its consistency with applicable requirements must all be 
sufficiently detailed and specific to support an affirmative Commission 
finding,\53\ and any failure of an SRO to provide this information may 
result in the Commission not having a sufficient basis to make an 
affirmative finding that a proposed rule change is consistent with the 
Act and the applicable rules and regulations.\54\
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    \52\ 17 CFR 201.700(b)(3).
    \53\ See id.
    \54\ See id.
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    The Commission is instituting proceedings to allow for additional 
consideration and comment on the issues raised herein, including as to 
whether the proposed fees are consistent with the Act, and 
specifically, with its requirements that the rules of a national 
securities exchange provide for the equitable allocation of reasonable 
dues, fees, and other charges among its members,

[[Page 73029]]

issuers, and other persons using its facilities' are designed to 
perfect the operation of a free and open market and a national market 
system, and to protect investors and the public interest; are not 
designed to permit unfair discrimination between customers, issuers, 
brokers, or dealers; and do not impose any burden on competition that 
is not necessary or appropriate in furtherance of the purposes of the 
Act; as well as any other provision of the Act, or the rules and 
regulations thereunder.\55\
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    \55\ See 15 U.S.C. 78f(b)(4), (5), and (8).
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V. Commission's Solicitation of Comments

    The Commission requests written views, data, and arguments with 
respect to the concerns identified above as well as any other relevant 
concerns. Such comments should be submitted by January 13, 2022. 
Rebuttal comments should be submitted by January 27, 2022. Although 
there do not appear to be any issues relevant to approval or 
disapproval that would be facilitated by an oral presentation of views, 
data, and arguments, the Commission will consider, pursuant to Rule 
19b-4, any request for an opportunity to make an oral presentation.\56\
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    \56\ 15 U.S.C. 78s(b)(2). Section 19(b)(2) of the Act grants the 
Commission flexibility to determine what type of proceeding--either 
oral or notice and opportunity for written comments--is appropriate 
for consideration of a particular proposal by an SRO. See Securities 
Acts Amendments of 1975, Report of the Senate Committee on Banking, 
Housing and Urban Affairs to Accompany S. 249, S. Rep. No. 75, 94th 
Cong., 1st Sess. 30 (1975).
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    The Commission asks that commenters address the sufficiency and 
merit of the Exchanges' statements in support of the proposals, in 
addition to any other comments they may wish to submit about the 
proposed rule changes.
    Interested persons are invited to submit written data, views, and 
arguments concerning the proposed rule changes, including whether the 
proposed rule changes are 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 Nos. SR-NYSE-2021-67, SR-NYSEAMER-2021-43, SR-NYSEArca-2021-97, 
SR-NYSECHX-2021-17, SR-NYSENAT-2021-23 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 Nos. SR-NYSE-2021-67, SR-NYSEAMER-
2021-43, SR-NYSEArca-2021-97, SR-NYSECHX-2021-17, and SR-NYSENAT-2021-
23. The 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 changes that 
are filed with the Commission, and all written communications relating 
to the proposed rule changes 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 such filing also will be 
available for inspection and copying at the principal office of the 
Exchanges. 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 publicly available. All 
submissions should refer to File Nos. SR-NYSE-2021-67, SR-NYSEAMER-
2021-43, SR-NYSEArca-2021-97, SR-NYSECHX-2021-17, and SR-NYSENAT-2021-
23 and should be submitted on or before January 13, 2022. Rebuttal 
comments should be submitted by January 27, 2022.

VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(3)(C) of the 
Act,\57\ that File Nos. SR-NYSE-2021-67, SR-NYSEAMER-2021-43, SR-
NYSEArca-2021-97, SR-NYSECHX-2021-17, and SR-NYSENAT-2021-23, be and 
hereby are, temporarily suspended. In addition, the Commission is 
instituting proceedings to determine whether the proposed rule changes 
should be approved or disapproved.
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    \57\ 15 U.S.C. 78s(b)(3)(C).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\58\
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    \58\ 17 CFR 200.30-3(a)(57) and (58).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-27815 Filed 12-22-21; 8:45 am]
BILLING CODE 8011-01-P