81_FR_23851 81 FR 23773 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Establishing Fees Relating to End Users and Amending the Definition of “Affiliate,” as Well as Amending the Arca Options Fee Schedule and the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services to Reflect the Changes

81 FR 23773 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Establishing Fees Relating to End Users and Amending the Definition of “Affiliate,” as Well as Amending the Arca Options Fee Schedule and the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services to Reflect the Changes

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 81, Issue 78 (April 22, 2016)

Page Range23773-23779
FR Document2016-09322

Federal Register, Volume 81 Issue 78 (Friday, April 22, 2016)
[Federal Register Volume 81, Number 78 (Friday, April 22, 2016)]
[Notices]
[Pages 23773-23779]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-09322]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-77641; File No. SR-NYSEARCA-2016-19]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
of Proposed Rule Change Establishing Fees Relating to End Users and 
Amending the Definition of ``Affiliate,'' as Well as Amending the Arca 
Options Fee Schedule and the NYSE Arca Equities Schedule of Fees and 
Charges for Exchange Services to Reflect the Changes

April 18, 2016.
    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 April 4, 2016, NYSE Arca, Inc. (the ``Exchange'' or 
``NYSE Arca'') 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 establish fees relating to end users and 
amend the definition of ``affiliate,'' as well as to amend the co-
location section of the Arca Options Fee Schedule (the ``Options Fee 
Schedule'') and, through its wholly owned subsidiary NYSE Arca 
Equities, Inc. (``NYSE Arca Equities''), the NYSE Arca Equities 
Schedule of Fees and Charges for Exchange Services (the ``Equities Fee 
Schedule'' and, together with the Options Fee Schedule, the ``Fee 
Schedules'') to reflect the changes. The Exchange proposes that the 
changes be effective the first of the month following approval by the 
Securities and Exchange Commission (``Commission'').
    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 establish fees relating to certain end 
users and amend the definition of ``affiliate,'' as well as to amend 
the co-location \4\ section of the Fee Schedules to reflect the 
changes. The Exchange proposes that the changes be effective the first 
of

[[Page 23774]]

the month following approval by the Securities and Exchange Commission.
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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. 
63275 (November 8, 2010), 75 FR 70048 (November 16, 2010) (SR-
NYSEArca-2010-100). The Exchange operates a data center in Mahwah, 
New Jersey (the ``data center'') from which it provides co-location 
services to Users.
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    Information flows over existing network connections in two formats:
     Multicast format, which is a format in which information 
is sent one-way from the Exchange to multiple recipients at once, like 
a radio broadcast; and
     Unicast format, which is a format that allows one-to-one 
communication, similar to a phone line, in which information is sent to 
and from the Exchange.
Fees for Rebroadcasting Users Related to Their Multicast End Users
    As a general matter, market data is broadcast to Users \5\ in 
multicast format. Users can rebroadcast data they receive in multicast 
format to their customers \6\ if they choose. The Exchange proposes to 
add to its co-location Fee Schedules definitions of a ``Rebroadcasting 
User'' and a ``Multicast End User.''
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    \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. 76010 (September 29, 2015), 80 FR 60197 
(October 5, 2015) (SR-NYSEArca-2015-82). As specified in the Fee 
Schedules, a User that incurs co-location fees for a particular co-
location service pursuant thereto would not be subject to co-
location fees for the same co-location service charged by the 
Exchange's affiliates New York Stock Exchange LLC and NYSE MKT LLC. 
See Securities Exchange Act Release No. 70173 (August 13, 2013), 78 
FR 50459 (August 19, 2013) (SR-NYSEArca-2013-80).
    \6\ As used in the context of the proposed fees, the term 
``customer'' refers to any person who has a contractual relationship 
with a User or the customer of a User for the provision to that 
customer of unicast or multicast services. A customer of a User may 
include another User or a ``Hosted Customer,'' as that term is 
defined in the Fee Schedules.

    A ``Rebroadcasting User'' would be a User that rebroadcasts to 
its customers data received from the Exchange in multicast format, 
unless such User normalizes the raw market data before sending it to 
its customers.
    A ``Multicast End User'' would be a customer of a Rebroadcasting 
User, or a customer of a Rebroadcasting User's Multicast End User 
customer, to whom the Rebroadcasting User or its Multicast End User 
sends data received from the Exchange in multicast format, other 
than an Affiliate of the Rebroadcasting User. A Multicast End User 
may be, but is not required to be, another User or a Hosted 
Customer.

    The Exchange proposes that a User that normalizes raw market data 
before sending it to its customers would not be a ``Rebroadcasting 
User.'' Such normalized data is altered before rebroadcasting, and is 
no longer in the form received from the Exchange. For example, a User 
may opt to normalize the raw data distributed by the Exchange and its 
affiliates by altering it to put it in viewable or algorithmic form, 
such as by putting it though a feed handler. In addition, the Exchange 
proposes that a User that rebroadcasts data received from third parties 
would not be a ``Rebroadcasting User,'' as the data would not be 
received from the Exchange.
    A Rebroadcasting User may have more than one connection to a single 
Multicast End User. The multicast format permits a Multicast End User 
to rebroadcast the data received. Each of such customers is also 
considered a Multicast End User, irrespective of whether it receives 
the data from a Rebroadcasting User or another Multicast End User.\7\
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    \7\ The Exchange is not aware of any customer of a Multicast End 
User that rebroadcasts data, but if such a relationship did exist, 
the customer would also be considered a Multicast End User.
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    The Exchange proposes to charge Rebroadcasting Users fees relating 
to each Multicast End User as follows:
     If the Rebroadcasting User has one or two connections, 
either directly or through another Multicast End User, to a Multicast 
End User, the Rebroadcasting User would be subject to a $1,700 monthly 
charge.
     If the Rebroadcasting User has more than two connections 
to a Multicast End User, either directly or through another Multicast 
End User, the Rebroadcasting User would be subject to a $1,700 monthly 
charge for the first two connections (in the aggregate) and $850 for 
each additional connection.\8\
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    \8\ For example, if a Rebroadcasting User has three connections 
to one Multicast End User, the Rebroadcasting User would be charged 
$2,550 per month with respect to such Multicast End User: $1,700 per 
month for the first two connections plus $850 per month for the 
third connection. If a Rebroadcasting User has one connection to a 
Multicast End User that itself has three customers that are also 
Multicast End Users, each with one or two connections, the Exchange 
would charge the Rebroadcasting User $6,800 per month, that is, 
$1,700 per month for each Multicast End User.
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Fees for Transmittal Users Related to Their Unicast End Users
    Messages, such as those to send an order or related to clearing a 
trade, are transmitted in unicast format. A User may enable one or more 
of its customers to transmit messages in unicast format to and from the 
Exchange. For example, a User that is a service bureau or extranet may 
use such connections to facilitate order routing and clearing by its 
customers. The Exchange proposes to add to its co-location Fee 
Schedules definitions of a ``Transmittal User'' and a ``Unicast End 
User.''

    A ``Transmittal User'' would be a User that enables its 
customers, or the customers of its customers, to transmit messages 
to and from the Exchange using the unicast format.
    A ``Unicast End User'' would be a customer of a Transmittal 
User, or a customer of a Transmittal User's Unicast End User 
customer, for whom the Transmittal User or its Unicast End User 
customer enables the transmission of messages to and from the 
Exchange in unicast format, other than a customer that (a) is an 
Affiliate of the Transmittal User or (b) sends all unicast 
transmissions through a floor participant, such as a floor broker. A 
Unicast End User may be, but is not required to be, a User or a 
Hosted Customer.

    A Transmittal User may establish more than one connection for a 
single Unicast End User. The unicast format permits a Unicast End User 
to enable one or more of its customers to transmit messages to and from 
the Unicast End User. Each of such customers is also considered a 
Unicast End User.\9\
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    \9\ The Exchange is not aware of any customer of a Unicast End 
User that enables its customers to transmit messages, but if such a 
relationship did exist, the customer would also be considered a 
Unicast End User.
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    The Exchange proposes to charge Transmittal Users fees relating to 
each Unicast End User as follows:
     If the Transmittal User has one or two connections to the 
Unicast End User, either directly or through another Unicast End User, 
the Transmittal User would be subject to a $1,500 monthly charge.
     If the Transmittal User has more than two connections to 
the Unicast End User, either directly or through another Unicast End 
User, the Transmittal User would be subject to a $1,500 monthly charge 
for the first two connections (in the aggregate) and $750 for each 
additional connection.\10\
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    \10\ For example, if a Transmittal User has three connections to 
one Unicast End User, the Transmittal User would be charged $2,250 
per month with respect to such Unicast End User: $1,500 per month 
plus $750 per month. If a Transmittal User has one connection to a 
Unicast End User that itself has three customers that are also 
Unicast End Users, each with one or two connections, the Exchange 
would charge the Transmittal User $6,000 per month, that is, $1,500 
per month for each Unicast End User.
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    If a Transmittal User's customer sends all unicast transmissions 
through a floor participant, such as a floor broker, that customer 
would not be considered a Unicast End User even if such customer is 
enabled to use unicast communications. Accordingly, the Transmittal 
User would not be charged with respect to its connection to such 
customer.
    A User may be both a Rebroadcasting User and a Transmittal User.
Definition of Affiliate
    The proposed fees would not apply to a Multicast End User that is 
an ``Affiliate'' of a Rebroadcasting User or

[[Page 23775]]

a Unicast End User that is an ``Affiliate'' of a Transmittal User.
    Presently, for purposes of co-location fees the ``Affiliate'' of a 
User is defined as ``any other User or Hosted Customer that is under 
50% or greater common ownership or control of the first User.'' \11\ 
The Exchange proposes to revise the definition of ``Affiliate'' for 
clarity and to include Affiliates of Multicast and Unicast End Users. 
The proposed definition would be as follows:
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    \11\ The Exchange added a definition of ``Affiliate'' for co-
location fees in connection with its partial cabinet solution 
bundles. See Exchange Act Release No. 76616 (Dec. 10, 2015), 80 FR 
78282 (December 16, 2015) (SR-NYSEArca-2015-102).

    An ``Affiliate'' of a User is any other User or Hosted Customer 
that is under common control with, controls, or is controlled by, 
the first User, provided that: (1) An ``Affiliate'' of a 
Rebroadcasting User is any Multicast End User that is under common 
control with, controls, or is controlled by the Rebroadcasting User; 
and (2) an ``Affiliate'' of a Transmittal User is any Unicast End 
User that is under common control with, controls, or is controlled 
by the Transmittal User. For purposes of this definition, 
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``control'' means ownership or control of 50% or greater.

    The Exchange proposes to amend the current definition of Affiliate 
to clarify that the control relationship does not exist only when a 
User or Hosted Customer is under the common ownership or control of the 
first User. Instead, an Affiliate relationship exists whenever the two 
entities are under common control and irrespective of which entity 
controls the other. In addition, the Exchange proposes to move the 
description of what ``control'' means to the end of the definition, to 
allow for addition of the definitions of Affiliate of Rebroadcasting 
Users and Transmittal Users.\12\
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    \12\ The proposed definition of Affiliate does not encompass two 
Multicast End Users or Unicast End Users. Accordingly, if a 
Rebroadcasting User or Transmittal User had two Multicast End Users 
or Unicast End Users, respectively, that were under common control 
or one controlled the other, they would be treated as two end users 
for purposes of the proposed fees.
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    By using the same concept of ``control'' for the definitions of 
Affiliate of Rebroadcasting Users and Transmittal Users as for the 
general definition, the Exchange believes that the expanded definition 
would be consistent in its application across the co-location related 
fees.
Support for Rebroadcasting Users and Transmittal Users
    The Exchange incurs expenses and expends resources in connection 
with the support of Rebroadcasting Users and Transmittal Users. Some 
such costs are indirect, including those associated with overhead and 
technology infrastructure, administrative, maintenance and operational 
costs. Since the inception of co-location, there have been numerous 
network infrastructure improvements performed and administrative 
controls established. Additionally, the Exchange has automated 
retransmission facilities for most of its Users that receive multicast 
transmissions. These facilities benefit Rebroadcasting Users by 
reducing their operational costs associated with retransmissions to 
Multicast End Users that are also Users. The network infrastructure has 
been expanded to keep pace with the increased number of services 
available to Users, including Rebroadcasting and Transmittal Users, 
which, in turn, has increased the administrative and operational costs 
associated with delivery by Rebroadcasting Users and Transmittal Users 
to their Multicast End Users and Unicast End Users, respectively. The 
higher fees proposed in connection with the multicast format reflect 
the Exchange's experience that there are higher maintenance costs 
associated with supporting and rebroadcasting the multicast format, 
largely due to bandwidth requirements.
    Based on its experience, the Exchange generally provides more 
direct support to Rebroadcasting Users and Transmittal Users than other 
Users, typically in the form of network support for the services that 
Rebroadcasting Users and Transmittal Users provide their Multicast End 
Users and Unicast End Users, respectively.\13\ Typically when an issue 
arises, the Exchange and the applicable Rebroadcasting User or 
Transmittal User would conduct a review to determine the cause of an 
issue, with the participation of the relevant Multicast or Unicast End 
User. Based on its experience, the Exchange finds that when the User is 
a Rebroadcasting User or Transmittal User, pinpointing the issue and 
providing the needed network support becomes more complicated because 
each entity involved has its own infrastructure and administration.\14\ 
As a result, as a general matter the Exchange has a greater 
administrative burden and incurs greater operational costs to support 
Rebroadcasting Users and Transmittal Users than other Users.
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    \13\ For example, if a Multicast End User had an issue such as a 
loss of connection to the multicast service or dropping packets of 
data (i.e., portions of the data are dropped), the Exchange would 
work with the Rebroadcasting User to determine the issue and, if it 
was related to Exchange services, remedy it.
    \14\ The Exchange notes that in its experience not all Users 
have detailed monitoring for their networks, and some Rebroadcasting 
Users and Transmittal Users do not troubleshoot within their own 
networks to see where the cause lies before asking the Exchange for 
support.
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    By contrast, in its experience the Exchange has found that entities 
that are Affiliates typically act as one entity, with one 
infrastructure, one administration, and one network support group. 
Accordingly, when the Exchange provides network support to a User 
rebroadcasting or transmitting multicast or unicast data to Affiliate 
end users, the Exchange is effectively supporting one entity, 
irrespective of how many Affiliate end users are involved. As a result, 
its administrative burden and operational costs are reduced in 
comparison to when it supports a Rebroadcasting User or Transmittal 
User rebroadcasting or transmitting to a Multicast End User or Unicast 
End User, respectively.\15\ In the Exchange's experience, this is true 
irrespective of whether the Affiliate end user is itself a User or is 
located outside of co-location. Accordingly, the Exchange proposes to 
exclude Affiliates, including those Affiliates that are not Users, from 
the definitions of Multicast End Users and Unicast End Users.
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    \15\ By comparison, as noted above, when the Exchange provides 
support to a Rebroadcasting User or Transmittal User regarding 
issues related to its Multicast or Unicast End Users, the Exchange 
works with as many separate entities as there are parties involved.
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    The Exchange does not provide network support for end users that 
receive normalized data. Because the normalized data is altered, the 
User that normalizes and then rebroadcasts normalized data acts as the 
source of the feed. As a result the User does not need the Exchange's 
assistance if an issue arises with its normalized feed. Accordingly, 
the Exchange proposes to exclude a User that normalizes data from the 
definition of Rebroadcasting User.
    Rebroadcasting Users and Transmittal Users need network support, 
and the Exchange provides it, irrespective of whether their Multicast 
or Unicast End Users are Users. For this reason, the Exchange provides 
Rebroadcasting Users and Transmittal Users support related to their 
Multicast and Unicast End Users both inside and outside of co-location. 
Accordingly, the Exchange proposes not to limit the definitions of 
Multicast End Users and Unicast End Users to end users that are also 
Users.
Rebroadcasting User and Transmittal User Reporting
    In order to assess the proposed fees accurately, the Exchange 
proposes that Rebroadcasting Users and Transmittal Users be required to 
report the following

[[Page 23776]]

to the Exchange on a monthly basis: (a) The number of their Multicast 
End Users and Unicast End Users, and (b) the number of connections to 
each such Multicast End User and Unicast End User. A User that excludes 
an Affiliate from its list of Multicast End Users or Unicast End Users 
consistent with the proposed definitions may be required to certify to 
the Exchange the Affiliate status of such end user.\16\ The Exchange 
proposes to revise the Fee Schedules accordingly.
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    \16\ The Exchange may review available information regarding the 
Affiliate status of an end user and reserves the right to request 
additional information to verify the Affiliate status of such 
entity. The Exchange would approve a request to exclude an Affiliate 
unless it determines that the certification is not accurate. The 
Exchange believes that this procedure is consistent with the 
certification procedures relating to its Partial Cabinet Solution 
bundles. See Exchange Act Release No. 76616, supra note 11, at 7402.
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    Users that are not Rebroadcasting Users or Transmittal Users may be 
asked to certify as much to the Exchange.
    Users may independently set fees that they charge Multicast End 
Users and Unicast End Users. The Exchange would not be a party to the 
contractual relationship between Rebroadcasting Users and Transmittal 
Users and their customers and would not receive a share of any fees 
charged by Rebroadcasting Users and Transmittal Users for their 
services.
General
    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, 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; \17\ 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.\18\
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    \17\ 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 others with access to the Exchange's trading 
and execution systems. 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 users that have access to the Exchange's trading and 
execution systems, although Users that receive co-location services 
normally would expect reduced latencies in sending orders to, and 
receiving market data from, the Exchange.
    \18\ See Securities Exchange Act Release No. 70173, supra note 5 
at 50459. The Exchange's affiliates have also submitted 
substantially the same proposed rule change. See SR-NYSE-2015-11 and 
SR-NYSEMKT-2015-15.
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Technical Change
    Finally, the Exchange proposes to delete the obsolete text in the 
Fee Schedules related to the Hosting Fee of $500 per Hosted Customer 
that was in effect until December 31, 2015. In addition, the Exchange 
proposes to delete the ``Effective January 1, 2016'' text that precedes 
the current description of the $1,000 monthly charge per cabinet per 
Hosted Customer for each cabinet in which such Hosted Customer is 
hosted because it is no longer necessary as these fees are current 
fees.
    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,\19\ in general, and furthers the 
objectives of Sections 6(b)(5) of the Act,\20\ 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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    \19\ 15 U.S.C. 78f(b).
    \20\ 15 U.S.C. 78f(b)(5).
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    The Exchange also believes that the proposed rule change is 
consistent with Section 6(b)(4) of the Act,\21\ 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. Overall, the Exchange believes that the 
proposed change is consistent with the Act because the Exchange offers 
the co-location services described herein as a convenience to Users, 
but in so doing incurs certain costs, including costs related to the 
Data Center facility, hardware and equipment and costs related to 
personnel required for installation and ongoing monitoring, support and 
maintenance of such services.
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    \21\ 15 U.S.C. 78f(b)(4).
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    The Exchange believes that the proposal is not designed to permit 
unfair discrimination between customers, issuers, brokers or dealers. 
Co-location services would continue to be offered by the Exchange in a 
manner that would not unfairly discriminate between or among market 
participants that are otherwise capable of satisfying any applicable 
co-location fees, requirements, terms and conditions established from 
time to time by the Exchange. The proposed end user-related 
definitions, fees and reporting requirements would be applied uniformly 
to all Users providing multicast and unicast connections and would not 
unfairly discriminate between similarly situated Users of co-location 
services.
    In addition, the proposed end user fees would fairly and equitably 
allocate the costs associated with maintaining the Data Center 
facility, hardware and equipment and related to personnel required for 
installation and ongoing monitoring, support and maintenance of such 
service among all Users.
    In the absence of the proposed end user fees, no charges would be 
assessed related to the benefit that Multicast End Users and Unicast 
End Users receive from these services through the Rebroadcasting or 
Transmittal User from whom they receive data, and the Rebroadcasting or 
Transmittal Users would thus receive disproportionate benefits.
    The Exchange believes that the proposed fees are reasonable in that 
they are designed to defray applicable expenses incurred and resources 
expended by the Exchange in support of Rebroadcasting Users and 
Transmittal Users, including those associated with overhead and 
technology infrastructure, administrative, maintenance and operational 
costs, such as the costs of maintaining multiple connections with 
multiple providers. The Exchange incurs expenses and expends resources 
in connection with the support of Rebroadcasting Users and Transmittal 
Users. Some such costs are indirect, including those associated with 
overhead and technology infrastructure, administrative, maintenance and 
operational costs. Since the inception of co-location, there have been 
numerous network infrastructure improvements

[[Page 23777]]

performed and administrative controls established.
    Additionally, the Exchange has automated retransmission facilities 
for most of its Users that receive multicast transmissions. These 
facilities benefit Rebroadcasting Users by reducing their operational 
costs associated with retransmissions to Multicast End Users that are 
also Users. The network infrastructure has been expanded to keep pace 
with the increased number of services available to Users, including 
Rebroadcasting and Transmittal Users, which, in turn, has increased the 
administrative and operational costs associated with delivery by 
Rebroadcasting Users and Transmittal Users to their Multicast End Users 
and Unicast End Users, respectively. The Exchange believes that the 
proposed higher fees proposed in connection with the multicast format 
are reasonable because they reflect the Exchange's experience that 
there are higher maintenance costs associated with supporting and 
rebroadcasting the multicast format, largely due to bandwidth 
requirements.
    In addition, based on its experience, the Exchange believes that 
the proposed fees are reasonable in that, as a general matter, the 
Exchange has a greater administrative burden and incurs greater 
operational costs to support Rebroadcasting Users and Transmittal Users 
than other Users. The Exchange generally provides more direct support 
to Rebroadcasting Users and Transmittal Users than other Users, 
typically in the form of network support for the services that 
Rebroadcasting Users and Transmittal Users provide their Multicast End 
Users and Unicast End Users, respectively. Typically when an issue 
arises, the Exchange and the applicable Rebroadcasting User or 
Transmittal User would conduct a review to determine the cause of an 
issue, with the participation of the relevant Multicast or Unicast End 
User. Based on its experience, the Exchange finds that when the User is 
a Rebroadcasting User or Transmittal User, pinpointing the issue and 
providing the needed network support becomes more complicated because 
each entity involved has its own infrastructure and administration.
    The Exchange believes that it is reasonable to charge 
Rebroadcasting Users and Transmittal Users the proposed fees 
irrespective of whether their Multicast or Unicast End User is a User, 
because the Exchange provides Rebroadcasting Users and Transmittal 
Users support related to their Multicast and Unicast End Users that are 
outside of co-location as well as those that are Users. If the proposed 
fees were limited to Rebroadcasting Users and Transmittal Users whose 
Multicast or Unicast End Users were themselves Users, no charges would 
be assess related to the benefit that end users outside of co-location 
received from these services through the rebroadcasting or transmitting 
User from whom they received data. As a result, the Rebroadcasting 
Users and Transmittal Users whose Multicast or Unicast End Users were 
themselves Users would support a disproportionate share of the 
Exchange's administrative burden and operational costs relating to end 
users, and the rebroadcasting or transmitting Users would receive 
disproportionate benefits.
    In addition, the Exchange believes that it is reasonable to charge 
the same amount for one or two connections because it would encourage 
Users and their customers to establish two connections and thereby 
create redundancy in the connections.
    The Exchange believes that the proposed amendments to the 
definition of Affiliates regarding the control relationship are 
reasonable because they would make the definition more accessible and 
transparent and provide market participants with clarity as to what 
entities are considered Affiliates, ensuring that Users exclude all 
possible Affiliates from the proposed fees and the existing fees for 
Partial Cabinet Solution bundles. The Exchange believes that setting 
the common ownership or control threshold in the definition of 
Affiliates of Multicast End Users and Unicast End Users at 50% is 
reasonable because it is the same threshold as in the current 
definition of Affiliates.
    Expanding the definition of Affiliates, adding the definitions of 
Multicast End User, Rebroadcasting User, Unicast End User, and 
Transmittal User, and adding the proposed note on the reporting 
requirements to the Fee Schedules would make such definitions and 
requirements accessible and transparent and provide market participants 
with clarity as to the application of the proposed fees. The Exchange 
believes that the proposal would remove impediments to, and perfect the 
mechanisms of, a free and open market and a national market system and, 
in general, protect investors and the public interest because by 
including the definitions and reporting requirements in the Fee 
Schedules, the proposed change would provide all Users with clarity as 
to the availability and application of co-location services and fees. 
Such end user-related definitions, fees and reporting requirements 
would be applied uniformly to all Users providing multicast and unicast 
connections and would not unfairly discriminate between similarly 
situated Users of co-location services.
    The Exchange believes that excluding Affiliates from the 
definitions of Multicast End Users and Unicast End Users is reasonable 
because, in its experience, when the Exchange provides network support 
to a User rebroadcasting or transmitting multicast or unicast data to 
Affiliate end users, the Exchange's administrative burden and 
operational costs are reduced in comparison to when it supports a 
Rebroadcasting User or Transmittal User rebroadcasting or transmitting 
multicast or unicast data to a Multicast End User or Unicast End User, 
respectively. In its experience, entities that are Affiliates typically 
act as one entity, with one infrastructure, one administration, and one 
network support group. Accordingly, when the Exchange provides network 
support to a User rebroadcasting or transmitting multicast or unicast 
data to Affiliate end users, the Exchange is effectively supporting one 
entity, irrespective of how many Affiliate end users are involved.
    The Exchange believes that having the definition of Affiliates 
encompass non-Users is reasonable because in its experience entities 
that are Affiliates typically act as one entity irrespective of whether 
one or more of them are not Users. If the definition did not encompass 
non-Users, a User would have to pay the proposed fee if it rebroadcast 
or transmitted multicast or unicast data to an end user that was not a 
User but otherwise met the definition of Affiliate. However, the 
Exchange would incur the same costs irrespective of whether the end 
user is itself a User or is located outside of co-location. 
Accordingly, the Exchange believes that having the definition of 
Affiliates encompass non-Users avoids disparate treatment of a 
Rebroadcasting User or Transmittal User that has a non-User as its 
Affiliate, as compared to one that has a User as its Affiliate.
    The Exchange believes that it is reasonable that, under the 
proposed definition, two Multicast End Users or Unicast End Users would 
not be considered Affiliates even if they otherwise met the 
requirements of the definition. The Exchange has no direct contract 
with a Rebroadcasting User's Multicast End Users for connectivity to 
Exchange data, or with a Transmittal User's Unicast End Users for the 
transmission of messages to and from the Exchange. As a result, the 
Exchange would not be able to independently ascertain which Multicast 
and

[[Page 23778]]

Transmittal Users met the definition of Affiliates, and would have no 
standing to require such Multicast and Unicast End Users to report 
their Affiliates. The Exchange believes it would create an unnecessary 
administrative burden on Users to require Rebroadcasting Users and 
Transmittal Users to determine which, if any, of their Multicast and 
Unicast End Users were affiliated, and to report such to the Exchange.
    The Exchange believes that the proposal to exclude Affiliates from 
the definitions of Multicast End User and Unicast End User is not 
designed to permit unfair discrimination between customers, issuers, 
brokers or dealers because the proposed rule avoids disparate treatment 
of Users that have divided their various business activities among 
separate corporate entities, as compared to Users that operate those 
business activities within a single corporate entity. In addition, the 
inclusion of non-Users in the definition of Affiliates is not designed 
to permit unfair discrimination between customers, issuers, brokers or 
dealers because the proposed rule avoids disparate treatment of Users 
that have Affiliates that are not Users, as compared to Users whose 
Affiliates are all Users.
    The Exchange believes that the proposal to exclude from the 
definition of Multicast End Users a User that normalizes raw data 
before rebroadcasting it to its customers is reasonable and is not 
designed to permit unfair discrimination between customers, issuers, 
brokers or dealers because a User that normalizes and then rebroadcasts 
normalized data acts as the source of the feed, and so does not need 
the Exchange's assistance if an issue arises with its normalized feed. 
As a result, the Exchange does not incur the same costs in relation to 
end users of normalized data as it does in relation to Multicast End 
Users.
    The Exchange believes that the proposal to exclude from the 
definition of Unicast End User those customers of a Transmittal User 
(and customers of Users' customers) that send all orders to a Floor 
broker for representation on the Exchange is reasonable because it 
would encourage sending orders to Floor brokers for execution, thereby 
encouraging additional displayed liquidity on the Exchange. This would 
encourage the execution of transactions on a public registered 
exchange, thereby promoting public price discovery--an objective fully 
consistent with the Act.\22\ The Exchange believes the proposed changes 
are equitable and not unfairly discriminatory because they would 
continue to encourage member organizations to send orders to the Floor 
for execution, thereby contributing to robust levels of liquidity on 
the Floor, which benefits all market participants.
---------------------------------------------------------------------------

    \22\ See Exchange Act Release No. 73333 (October 9, 2014), 79 FR 
62223 (October 16, 2014) (SR-NYSE-2014-32 and SR-NYSEMKT-2014-56) 
(``The Commission also notes that . . . the ALO limit order is 
designed to provide displayed liquidity to the market and thereby 
contribute to public price discovery--an objective that is fully 
consistent with the Act''); see also 15 U.S.C. 78k-1(a)(1)(c)(iii) 
and (iv) (objectives for the national market system include assuring 
the availability of information with respect to quotations in 
securities and the practicability of brokers executing investors' 
orders in the best market).
---------------------------------------------------------------------------

    The Exchange believes that the proposal to have Users report the 
number of their Multicast End Users and Unicast End Users and the 
number of connections to each such Multicast End User and Unicast End 
User is reasonable because it will ensure that the proposed fees are 
assessed accurately and will provide market participants with clarity 
as to how the fees will be assessed.
    For the reasons above, the proposed change would not unfairly 
discriminate between or among market participants that are otherwise 
capable of satisfying any applicable co-location fees, requirements, 
terms and conditions established from time to time by the Exchange.
    Finally, the Exchange believes that it is subject to significant 
competitive forces, as described below in the Exchange's statement 
regarding the burden on competition.
    For these reasons, the Exchange believes that the proposal is 
consistent with the Act.

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

    In accordance with Section 6(b)(8) of the Act,\23\ the Exchange 
believes that the proposed rule change would not impose any burden on 
competition that is not necessary or appropriate in furtherance of the 
purposes of the Act because any market participants that are otherwise 
capable of satisfying any applicable co-location fees, requirements, 
terms and conditions established from time to time by the Exchange 
could have access to the co-location services provided in the Data 
Center. This is also true because, in addition to the services being 
completely voluntary, they are available to all Users on an equal basis 
(i.e., the same range of products and services are available to all 
Users). The proposed end user-related definitions, fees and reporting 
requirements would be applied uniformly to all Users providing 
multicast and unicast connections.
---------------------------------------------------------------------------

    \23\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    In addition, the Exchange believes that the proposed end user fees 
would not impose any burden on competition that is not necessary or 
appropriate in furtherance of the purposes of the Act because they 
would fairly and equitably allocate the costs associated with 
maintaining the Data Center facility, hardware and equipment and 
related to personnel required for installation and ongoing monitoring, 
support and maintenance of such service among all Users, as well as 
applicable expenses incurred and resources expended by the Exchange in 
support of Rebroadcasting Users and Transmittal Users. In the absence 
of the proposed end user fees, no charges would be assessed related to 
the benefit that Multicast End Users and Unicast End Users receive from 
these services through the Rebroadcasting or Transmittal User from whom 
they receive data, and the Rebroadcasting or Transmittal Users would 
thus receive disproportionate benefits.
    The Exchange believes that the proposed end user fees would not 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act because the Exchange has 
tailored the proposed definition of Affiliate to include User and non-
User Affiliates. If the proposed fees were limited to Rebroadcasting 
Users and Transmittal Users whose Multicast or Unicast End Users were 
themselves Users, no charges would be assessed relating to the benefit 
that end users outside of co-location received from these services 
through the rebroadcasting or transmitting User from whom they received 
data. As a result, the Rebroadcasting Users and Transmittal Users whose 
Multicast or Unicast End Users were themselves Users would support a 
disproportionate share of the Exchange's administrative burden and 
operational costs relating to end users, and the rebroadcasting or 
transmitting Users would receive disproportionate benefits.
    The Exchange believes that the proposed end user fees would not 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act because the Exchange has 
excluded Affiliates from the proposed definitions of Multicast End 
Users and Unicast End Users. As a result, the proposed end user fees 
exclude fees related to end users that, in the Exchange's experience, 
typically act as one entity, with one infrastructure and one 
administration.
    The Exchange believes that the proposal to exclude from the 
definition

[[Page 23779]]

of Unicast End User those customers of a Transmittal User (and 
customers of Users' customers) that send all orders to a Floor broker 
for representation on the Exchange is reasonable because it would 
encourage providing liquidity on the Exchange, thereby contributing to 
the Exchange's competitiveness with other markets. In addition, the 
Exchange believes that expanding the definition of Affiliates and 
adding the definitions of Multicast End User, Rebroadcasting User, 
Unicast End User, and Transmittal User to the Fee Schedules would make 
such definitions accessible and transparent and provide market 
participants with clarity as to the availability and application of the 
proposed fees.
    Finally, the Exchange notes that it operates in a highly 
competitive market in which market participants can readily favor 
competing venues if, for example, they deem fee levels at a particular 
venue to be excessive or if they determine that another venue's 
products and services are more competitive than on the Exchange. In 
such an environment, the Exchange must continually review, and consider 
adjusting, the services it offers as well as any corresponding fees and 
credits to remain competitive with other exchanges. For the reasons 
described above, the Exchange believes that the proposed rule change 
reflects this competitive environment.

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

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

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

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the Exchange consents, the Commission shall: (a) By order approve 
or disapprove such proposed rule change, or (b) institute proceedings 
to determine whether the proposed rule change should be disapproved.

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-NYSEARCA-2016-19 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-NYSEARCA-2016-19. 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-NYSEARCA-2016-19, and should be 
submitted on or before May 13, 2016.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\24\
---------------------------------------------------------------------------

    \24\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-09322 Filed 4-21-16; 8:45 am]
 BILLING CODE 8011-01-P



                                                                                   Federal Register / Vol. 81, No. 78 / Friday, April 22, 2016 / Notices                                                 23773

                                                  regarding the controls in place to                      communications relating to the                        solicit comments on the proposed rule
                                                  address the potential conflicts of                      proposed rule change between the                      change from interested persons.
                                                  interest that may arise in the listing and              Commission and any person, other than
                                                                                                                                                                I. Self-Regulatory Organization’s
                                                  trading of Affiliate Securities on the                  those that may be withheld from the
                                                                                                                                                                Statement of the Terms of the Substance
                                                  Exchange. Based on the foregoing, the                   public in accordance with the
                                                                                                                                                                of the Proposed Rule Change
                                                  Commission believes that waiving the                    provisions of 5 U.S.C. 552, will be
                                                  30-day operative delay is consistent                    available for Web site viewing and                       The Exchange proposes to establish
                                                  with the protection of investors and the                printing in the Commission’s Public                   fees relating to end users and amend the
                                                  public interest.15 The Commission                       Reference Room, 100 F Street NE.,                     definition of ‘‘affiliate,’’ as well as to
                                                  hereby grants the Exchange’s request                    Washington, DC 20549, on official                     amend the co-location section of the
                                                  and designates the proposal operative                   business days between the hours of                    Arca Options Fee Schedule (the
                                                  upon filing.                                            10:00 a.m. and 3:00 p.m. Copies of the                ‘‘Options Fee Schedule’’) and, through
                                                     At any time within 60 days of the                    filing also will be available for                     its wholly owned subsidiary NYSE Arca
                                                  filing of the proposed rule change, the                 inspection and copying at the principal               Equities, Inc. (‘‘NYSE Arca Equities’’),
                                                  Commission summarily may                                office of the Exchange. All comments                  the NYSE Arca Equities Schedule of
                                                  temporarily suspend such rule change if                 received will be posted without change;               Fees and Charges for Exchange Services
                                                  it appears to the Commission that such                  the Commission does not edit personal                 (the ‘‘Equities Fee Schedule’’ and,
                                                  action is necessary or appropriate in the               identifying information from                          together with the Options Fee Schedule,
                                                  public interest, for the protection of                  submissions. You should submit only                   the ‘‘Fee Schedules’’) to reflect the
                                                  investors, or otherwise in furtherance of               information that you wish to make                     changes. The Exchange proposes that
                                                  the purposes of the Act. If the                         available publicly. All submissions                   the changes be effective the first of the
                                                  Commission takes such action, the                       should refer to File Number SR–                       month following approval by the
                                                  Commission shall institute proceedings                  BatsBYX–2016–05 and should be                         Securities and Exchange Commission
                                                  to determine whether the proposed rule                  submitted on or before May 13, 2016.                  (‘‘Commission’’).
                                                  should be approved or disapproved.
                                                                                                            For the Commission, by the Division of                 The proposed rule change is available
                                                  IV. Solicitation of Comments                            Trading and Markets, pursuant to delegated            on the Exchange’s Web site at
                                                    Interested persons are invited to                     authority.16                                          www.nyse.com, at the principal office of
                                                  submit written data, views, and                         Robert W. Errett,                                     the Exchange, and at the Commission’s
                                                  arguments concerning the foregoing,                     Deputy Secretary.                                     Public Reference Room.
                                                  including whether the proposed rule                     [FR Doc. 2016–09319 Filed 4–21–16; 8:45 am]           II. Self-Regulatory Organization’s
                                                  change is consistent with the Act.                      BILLING CODE 8011–01–P                                Statement of the Purpose of, and
                                                  Comments may be submitted by any of                                                                           Statutory Basis for, the Proposed Rule
                                                  the following methods:                                                                                        Change
                                                                                                          SECURITIES AND EXCHANGE
                                                  Electronic Comments                                                                                             In its filing with the Commission, the
                                                                                                          COMMISSION
                                                    • Use the Commission’s Internet                                                                             self-regulatory organization included
                                                  comment form (http://www.sec.gov/                                                                             statements concerning the purpose of,
                                                                                                          [Release No. 34–77641; File No. SR–
                                                  rules/sro.shtml); or                                    NYSEARCA–2016–19]                                     and basis for, the proposed rule change
                                                    • Send an email to rule-                                                                                    and discussed any comments it received
                                                  comments@sec.gov. Please include File                   Self-Regulatory Organizations; NYSE                   on the proposed rule change. The text
                                                  Number SR&BatsBYX–2016–05 on the                        Arca, Inc.; Notice of Filing of Proposed              of those statements may be examined at
                                                  subject line.                                           Rule Change Establishing Fees                         the places specified in Item IV below.
                                                  Paper Comments                                          Relating to End Users and Amending                    The Exchange has prepared summaries,
                                                                                                          the Definition of ‘‘Affiliate,’’ as Well as           set forth in sections A, B, and C below,
                                                     • Send paper comments in triplicate                  Amending the Arca Options Fee                         of the most significant parts of such
                                                  to Secretary, Securities and Exchange                   Schedule and the NYSE Arca Equities                   statements.
                                                  Commission, 100 F Street NE.,                           Schedule of Fees and Charges for
                                                  Washington, DC 20549–1090.                                                                                    A. Self-Regulatory Organization’s
                                                                                                          Exchange Services to Reflect the                      Statement of the Purpose of, and
                                                  All submissions should refer to File                    Changes
                                                  Number SR–BatsBYX–2016–05. This                                                                               Statutory Basis for, the Proposed Rule
                                                  file number should be included on the                   April 18, 2016.                                       Change
                                                  subject line if email is used. To help the                 Pursuant to Section 19(b)(1) 1 of the              1. Purpose
                                                  Commission process and review your                      Securities Exchange Act of 1934 (the
                                                  comments more efficiently, please use                                                                           The Exchange proposes to establish
                                                                                                          ‘‘Act’’) 2 and Rule 19b–4 thereunder,3                fees relating to certain end users and
                                                  only one method. The Commission will                    notice is hereby given that, on April 4,
                                                  post all comments on the Commission’s                                                                         amend the definition of ‘‘affiliate,’’ as
                                                                                                          2016, NYSE Arca, Inc. (the ‘‘Exchange’’               well as to amend the co-location 4
                                                  Internet Web site (http://www.sec.gov/                  or ‘‘NYSE Arca’’) filed with the
                                                  rules/sro.shtml). Copies of the                                                                               section of the Fee Schedules to reflect
                                                                                                          Securities and Exchange Commission                    the changes. The Exchange proposes
                                                  submission, all subsequent                              (the ‘‘Commission’’) the proposed rule
                                                  amendments, all written statements                                                                            that the changes be effective the first of
                                                                                                          change as described in Items I and II
                                                  with respect to the proposed rule
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                                                                                                          below, which Items have been prepared                    4 The Exchange initially filed rule changes
                                                  change that are filed with the                          by the self-regulatory organization. The              relating to its co-location services with the
                                                  Commission, and all written                             Commission is publishing this notice to               Securities and Exchange Commission
                                                                                                                                                                (‘‘Commission’’) in 2010. See Securities Exchange
                                                     15 For purposes only of waiving the 30-day                                                                 Act Release No. 63275 (November 8, 2010), 75 FR
                                                                                                            16 17 CFR 200.30–3(a)(12).
                                                  operative delay, the Commission has also                                                                      70048 (November 16, 2010) (SR–NYSEArca–2010–
                                                                                                            1 15 U.S.C. 78s(b)(1).
                                                  considered the proposed rule’s impact on                                                                      100). The Exchange operates a data center in
                                                                                                            2 15 U.S.C. 78a.
                                                  efficiency, competition, and capital formation. See                                                           Mahwah, New Jersey (the ‘‘data center’’) from
                                                  15 U.S.C. 78c(f).                                         3 17 CFR 240.19b–4.                                 which it provides co-location services to Users.



                                             VerDate Sep<11>2014   19:18 Apr 21, 2016   Jkt 238001   PO 00000   Frm 00100   Fmt 4703   Sfmt 4703   E:\FR\FM\22APN1.SGM   22APN1


                                                  23774                            Federal Register / Vol. 81, No. 78 / Friday, April 22, 2016 / Notices

                                                  the month following approval by the                      to put it in viewable or algorithmic                     A ‘‘Unicast End User’’ would be a customer
                                                  Securities and Exchange Commission.                      form, such as by putting it though a feed             of a Transmittal User, or a customer of a
                                                     Information flows over existing                       handler. In addition, the Exchange                    Transmittal User’s Unicast End User
                                                  network connections in two formats:                      proposes that a User that rebroadcasts                customer, for whom the Transmittal User or
                                                     • Multicast format, which is a format                                                                       its Unicast End User customer enables the
                                                                                                           data received from third parties would                transmission of messages to and from the
                                                  in which information is sent one-way                     not be a ‘‘Rebroadcasting User,’’ as the              Exchange in unicast format, other than a
                                                  from the Exchange to multiple                            data would not be received from the                   customer that (a) is an Affiliate of the
                                                  recipients at once, like a radio                         Exchange.                                             Transmittal User or (b) sends all unicast
                                                  broadcast; and                                             A Rebroadcasting User may have                      transmissions through a floor participant,
                                                     • Unicast format, which is a format                   more than one connection to a single                  such as a floor broker. A Unicast End User
                                                  that allows one-to-one communication,                    Multicast End User. The multicast                     may be, but is not required to be, a User or
                                                  similar to a phone line, in which                        format permits a Multicast End User to                a Hosted Customer.
                                                  information is sent to and from the                      rebroadcast the data received. Each of                   A Transmittal User may establish
                                                  Exchange.                                                such customers is also considered a                   more than one connection for a single
                                                  Fees for Rebroadcasting Users Related to                 Multicast End User, irrespective of                   Unicast End User. The unicast format
                                                  Their Multicast End Users                                whether it receives the data from a                   permits a Unicast End User to enable
                                                                                                           Rebroadcasting User or another                        one or more of its customers to transmit
                                                     As a general matter, market data is                   Multicast End User.7
                                                  broadcast to Users 5 in multicast format.                                                                      messages to and from the Unicast End
                                                                                                             The Exchange proposes to charge                     User. Each of such customers is also
                                                  Users can rebroadcast data they receive                  Rebroadcasting Users fees relating to                 considered a Unicast End User.9
                                                  in multicast format to their customers 6                 each Multicast End User as follows:                      The Exchange proposes to charge
                                                  if they choose. The Exchange proposes                      • If the Rebroadcasting User has one
                                                  to add to its co-location Fee Schedules                                                                        Transmittal Users fees relating to each
                                                                                                           or two connections, either directly or
                                                  definitions of a ‘‘Rebroadcasting User’’                                                                       Unicast End User as follows:
                                                                                                           through another Multicast End User, to
                                                  and a ‘‘Multicast End User.’’                                                                                     • If the Transmittal User has one or
                                                                                                           a Multicast End User, the
                                                                                                           Rebroadcasting User would be subject to               two connections to the Unicast End
                                                    A ‘‘Rebroadcasting User’’ would be a User                                                                    User, either directly or through another
                                                  that rebroadcasts to its customers data                  a $1,700 monthly charge.
                                                                                                             • If the Rebroadcasting User has more               Unicast End User, the Transmittal User
                                                  received from the Exchange in multicast
                                                  format, unless such User normalizes the raw              than two connections to a Multicast End               would be subject to a $1,500 monthly
                                                  market data before sending it to its                     User, either directly or through another              charge.
                                                  customers.                                               Multicast End User, the Rebroadcasting                   • If the Transmittal User has more
                                                    A ‘‘Multicast End User’’ would be a                    User would be subject to a $1,700                     than two connections to the Unicast End
                                                  customer of a Rebroadcasting User, or a                                                                        User, either directly or through another
                                                  customer of a Rebroadcasting User’s
                                                                                                           monthly charge for the first two
                                                                                                           connections (in the aggregate) and $850               Unicast End User, the Transmittal User
                                                  Multicast End User customer, to whom the                                                                       would be subject to a $1,500 monthly
                                                  Rebroadcasting User or its Multicast End                 for each additional connection.8
                                                  User sends data received from the Exchange
                                                                                                                                                                 charge for the first two connections (in
                                                                                                           Fees for Transmittal Users Related to                 the aggregate) and $750 for each
                                                  in multicast format, other than an Affiliate of
                                                  the Rebroadcasting User. A Multicast End                 Their Unicast End Users                               additional connection.10
                                                  User may be, but is not required to be,                     Messages, such as those to send an                    If a Transmittal User’s customer sends
                                                  another User or a Hosted Customer.                       order or related to clearing a trade, are             all unicast transmissions through a floor
                                                     The Exchange proposes that a User                     transmitted in unicast format. A User                 participant, such as a floor broker, that
                                                  that normalizes raw market data before                   may enable one or more of its customers               customer would not be considered a
                                                  sending it to its customers would not be                 to transmit messages in unicast format                Unicast End User even if such customer
                                                  a ‘‘Rebroadcasting User.’’ Such                          to and from the Exchange. For example,                is enabled to use unicast
                                                  normalized data is altered before                        a User that is a service bureau or                    communications. Accordingly, the
                                                  rebroadcasting, and is no longer in the                  extranet may use such connections to                  Transmittal User would not be charged
                                                  form received from the Exchange. For                     facilitate order routing and clearing by              with respect to its connection to such
                                                  example, a User may opt to normalize                     its customers. The Exchange proposes to               customer.
                                                  the raw data distributed by the                          add to its co-location Fee Schedules                     A User may be both a Rebroadcasting
                                                  Exchange and its affiliates by altering it               definitions of a ‘‘Transmittal User’’ and             User and a Transmittal User.
                                                                                                           a ‘‘Unicast End User.’’                               Definition of Affiliate
                                                    5 For purposes of the Exchange’s co-location             A ‘‘Transmittal User’’ would be a User that
                                                  services, a ‘‘User’’ means any market participant        enables its customers, or the customers of its           The proposed fees would not apply to
                                                  that requests to receive co-location services directly
                                                                                                           customers, to transmit messages to and from           a Multicast End User that is an
                                                  from the Exchange. See Securities Exchange Act                                                                 ‘‘Affiliate’’ of a Rebroadcasting User or
                                                  Release No. 76010 (September 29, 2015), 80 FR            the Exchange using the unicast format.
                                                  60197 (October 5, 2015) (SR–NYSEArca–2015–82).
                                                  As specified in the Fee Schedules, a User that             7 The Exchange is not aware of any customer of         9 The Exchange is not aware of any customer of

                                                  incurs co-location fees for a particular co-location     a Multicast End User that rebroadcasts data, but if   a Unicast End User that enables its customers to
                                                  service pursuant thereto would not be subject to co-     such a relationship did exist, the customer would     transmit messages, but if such a relationship did
                                                  location fees for the same co-location service           also be considered a Multicast End User.              exist, the customer would also be considered a
                                                  charged by the Exchange’s affiliates New York              8 For example, if a Rebroadcasting User has three   Unicast End User.
                                                  Stock Exchange LLC and NYSE MKT LLC. See                 connections to one Multicast End User, the               10 For example, if a Transmittal User has three
                                                  Securities Exchange Act Release No. 70173 (August        Rebroadcasting User would be charged $2,550 per       connections to one Unicast End User, the
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                                                  13, 2013), 78 FR 50459 (August 19, 2013) (SR–            month with respect to such Multicast End User:        Transmittal User would be charged $2,250 per
                                                  NYSEArca–2013–80).                                       $1,700 per month for the first two connections plus   month with respect to such Unicast End User:
                                                    6 As used in the context of the proposed fees, the     $850 per month for the third connection. If a         $1,500 per month plus $750 per month. If a
                                                  term ‘‘customer’’ refers to any person who has a         Rebroadcasting User has one connection to a           Transmittal User has one connection to a Unicast
                                                  contractual relationship with a User or the customer     Multicast End User that itself has three customers    End User that itself has three customers that are
                                                  of a User for the provision to that customer of          that are also Multicast End Users, each with one or   also Unicast End Users, each with one or two
                                                  unicast or multicast services. A customer of a User      two connections, the Exchange would charge the        connections, the Exchange would charge the
                                                  may include another User or a ‘‘Hosted Customer,’’       Rebroadcasting User $6,800 per month, that is,        Transmittal User $6,000 per month, that is, $1,500
                                                  as that term is defined in the Fee Schedules.            $1,700 per month for each Multicast End User.         per month for each Unicast End User.



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                                                                                   Federal Register / Vol. 81, No. 78 / Friday, April 22, 2016 / Notices                                                      23775

                                                  a Unicast End User that is an ‘‘Affiliate’’             with overhead and technology                             burden and incurs greater operational
                                                  of a Transmittal User.                                  infrastructure, administrative,                          costs to support Rebroadcasting Users
                                                    Presently, for purposes of co-location                maintenance and operational costs.                       and Transmittal Users than other Users.
                                                  fees the ‘‘Affiliate’’ of a User is defined             Since the inception of co-location, there                   By contrast, in its experience the
                                                  as ‘‘any other User or Hosted Customer                  have been numerous network                               Exchange has found that entities that are
                                                  that is under 50% or greater common                     infrastructure improvements performed                    Affiliates typically act as one entity,
                                                  ownership or control of the first                       and administrative controls established.                 with one infrastructure, one
                                                  User.’’ 11 The Exchange proposes to                     Additionally, the Exchange has                           administration, and one network
                                                  revise the definition of ‘‘Affiliate’’ for              automated retransmission facilities for                  support group. Accordingly, when the
                                                  clarity and to include Affiliates of                    most of its Users that receive multicast                 Exchange provides network support to a
                                                  Multicast and Unicast End Users. The                    transmissions. These facilities benefit                  User rebroadcasting or transmitting
                                                  proposed definition would be as                         Rebroadcasting Users by reducing their                   multicast or unicast data to Affiliate end
                                                  follows:                                                operational costs associated with                        users, the Exchange is effectively
                                                     An ‘‘Affiliate’’ of a User is any other User         retransmissions to Multicast End Users                   supporting one entity, irrespective of
                                                  or Hosted Customer that is under common                 that are also Users. The network                         how many Affiliate end users are
                                                  control with, controls, or is controlled by, the        infrastructure has been expanded to                      involved. As a result, its administrative
                                                  first User, provided that: (1) An ‘‘Affiliate’’ of      keep pace with the increased number of                   burden and operational costs are
                                                  a Rebroadcasting User is any Multicast End              services available to Users, including                   reduced in comparison to when it
                                                  User that is under common control with,                 Rebroadcasting and Transmittal Users,                    supports a Rebroadcasting User or
                                                  controls, or is controlled by the                                                                                Transmittal User rebroadcasting or
                                                  Rebroadcasting User; and (2) an ‘‘Affiliate’’ of
                                                                                                          which, in turn, has increased the
                                                  a Transmittal User is any Unicast End User              administrative and operational costs                     transmitting to a Multicast End User or
                                                  that is under common control with, controls,            associated with delivery by                              Unicast End User, respectively.15 In the
                                                  or is controlled by the Transmittal User. For           Rebroadcasting Users and Transmittal                     Exchange’s experience, this is true
                                                  purposes of this definition, ‘‘control’’ means          Users to their Multicast End Users and                   irrespective of whether the Affiliate end
                                                  ownership or control of 50% or greater.                 Unicast End Users, respectively. The                     user is itself a User or is located outside
                                                     The Exchange proposes to amend the                   higher fees proposed in connection with                  of co-location. Accordingly, the
                                                  current definition of Affiliate to clarify              the multicast format reflect the                         Exchange proposes to exclude Affiliates,
                                                  that the control relationship does not                  Exchange’s experience that there are                     including those Affiliates that are not
                                                  exist only when a User or Hosted                        higher maintenance costs associated                      Users, from the definitions of Multicast
                                                  Customer is under the common                            with supporting and rebroadcasting the                   End Users and Unicast End Users.
                                                  ownership or control of the first User.                 multicast format, largely due to                            The Exchange does not provide
                                                  Instead, an Affiliate relationship exists               bandwidth requirements.                                  network support for end users that
                                                  whenever the two entities are under                        Based on its experience, the Exchange                 receive normalized data. Because the
                                                  common control and irrespective of                      generally provides more direct support                   normalized data is altered, the User that
                                                  which entity controls the other. In                     to Rebroadcasting Users and Transmittal                  normalizes and then rebroadcasts
                                                  addition, the Exchange proposes to                      Users than other Users, typically in the                 normalized data acts as the source of the
                                                  move the description of what ‘‘control’’                form of network support for the services                 feed. As a result the User does not need
                                                  means to the end of the definition, to                  that Rebroadcasting Users and                            the Exchange’s assistance if an issue
                                                  allow for addition of the definitions of                Transmittal Users provide their                          arises with its normalized feed.
                                                  Affiliate of Rebroadcasting Users and                   Multicast End Users and Unicast End                      Accordingly, the Exchange proposes to
                                                  Transmittal Users.12                                    Users, respectively.13 Typically when                    exclude a User that normalizes data
                                                     By using the same concept of                         an issue arises, the Exchange and the                    from the definition of Rebroadcasting
                                                  ‘‘control’’ for the definitions of Affiliate            applicable Rebroadcasting User or                        User.
                                                  of Rebroadcasting Users and Transmittal                 Transmittal User would conduct a                            Rebroadcasting Users and Transmittal
                                                  Users as for the general definition, the                review to determine the cause of an                      Users need network support, and the
                                                  Exchange believes that the expanded                     issue, with the participation of the                     Exchange provides it, irrespective of
                                                  definition would be consistent in its                   relevant Multicast or Unicast End User.                  whether their Multicast or Unicast End
                                                  application across the co-location                      Based on its experience, the Exchange                    Users are Users. For this reason, the
                                                  related fees.                                           finds that when the User is a                            Exchange provides Rebroadcasting
                                                                                                          Rebroadcasting User or Transmittal                       Users and Transmittal Users support
                                                  Support for Rebroadcasting Users and                    User, pinpointing the issue and                          related to their Multicast and Unicast
                                                  Transmittal Users                                       providing the needed network support                     End Users both inside and outside of co-
                                                    The Exchange incurs expenses and                      becomes more complicated because                         location. Accordingly, the Exchange
                                                  expends resources in connection with                    each entity involved has its own                         proposes not to limit the definitions of
                                                  the support of Rebroadcasting Users and                 infrastructure and administration.14 As                  Multicast End Users and Unicast End
                                                  Transmittal Users. Some such costs are                  a result, as a general matter the                        Users to end users that are also Users.
                                                  indirect, including those associated                    Exchange has a greater administrative                    Rebroadcasting User and Transmittal
                                                    11 The Exchange added a definition of ‘‘Affiliate’’       13 For example, if a Multicast End User had an
                                                                                                                                                                   User Reporting
                                                  for co-location fees in connection with its partial     issue such as a loss of connection to the multicast        In order to assess the proposed fees
                                                  cabinet solution bundles. See Exchange Act Release      service or dropping packets of data (i.e., portions of   accurately, the Exchange proposes that
                                                  No. 76616 (Dec. 10, 2015), 80 FR 78282 (December        the data are dropped), the Exchange would work
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                                                  16, 2015) (SR–NYSEArca–2015–102).                       with the Rebroadcasting User to determine the issue
                                                                                                                                                                   Rebroadcasting Users and Transmittal
                                                    12 The proposed definition of Affiliate does not      and, if it was related to Exchange services, remedy      Users be required to report the following
                                                  encompass two Multicast End Users or Unicast End        it.
                                                  Users. Accordingly, if a Rebroadcasting User or             14 The Exchange notes that in its experience not        15 By comparison, as noted above, when the

                                                  Transmittal User had two Multicast End Users or         all Users have detailed monitoring for their             Exchange provides support to a Rebroadcasting
                                                  Unicast End Users, respectively, that were under        networks, and some Rebroadcasting Users and              User or Transmittal User regarding issues related to
                                                  common control or one controlled the other, they        Transmittal Users do not troubleshoot within their       its Multicast or Unicast End Users, the Exchange
                                                  would be treated as two end users for purposes of       own networks to see where the cause lies before          works with as many separate entities as there are
                                                  the proposed fees.                                      asking the Exchange for support.                         parties involved.



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                                                  23776                            Federal Register / Vol. 81, No. 78 / Friday, April 22, 2016 / Notices

                                                  to the Exchange on a monthly basis: (a)                  only to the Exchange or to the Exchange               location services described herein as a
                                                  The number of their Multicast End                        and one or both of its affiliates.18                  convenience to Users, but in so doing
                                                  Users and Unicast End Users, and (b)                                                                           incurs certain costs, including costs
                                                                                                           Technical Change
                                                  the number of connections to each such                                                                         related to the Data Center facility,
                                                  Multicast End User and Unicast End                          Finally, the Exchange proposes to                  hardware and equipment and costs
                                                  User. A User that excludes an Affiliate                  delete the obsolete text in the Fee                   related to personnel required for
                                                  from its list of Multicast End Users or                  Schedules related to the Hosting Fee of               installation and ongoing monitoring,
                                                  Unicast End Users consistent with the                    $500 per Hosted Customer that was in                  support and maintenance of such
                                                  proposed definitions may be required to                  effect until December 31, 2015. In                    services.
                                                  certify to the Exchange the Affiliate                    addition, the Exchange proposes to                       The Exchange believes that the
                                                  status of such end user.16 The Exchange                  delete the ‘‘Effective January 1, 2016’’              proposal is not designed to permit
                                                  proposes to revise the Fee Schedules                     text that precedes the current                        unfair discrimination between
                                                  accordingly.                                             description of the $1,000 monthly                     customers, issuers, brokers or dealers.
                                                                                                           charge per cabinet per Hosted Customer                Co-location services would continue to
                                                    Users that are not Rebroadcasting
                                                                                                           for each cabinet in which such Hosted                 be offered by the Exchange in a manner
                                                  Users or Transmittal Users may be asked
                                                                                                           Customer is hosted because it is no                   that would not unfairly discriminate
                                                  to certify as much to the Exchange.
                                                                                                           longer necessary as these fees are                    between or among market participants
                                                    Users may independently set fees that                  current fees.                                         that are otherwise capable of satisfying
                                                  they charge Multicast End Users and                         The proposed change is not otherwise               any applicable co-location fees,
                                                  Unicast End Users. The Exchange would                    intended to address any other issues                  requirements, terms and conditions
                                                  not be a party to the contractual                        relating to co-location services and/or               established from time to time by the
                                                  relationship between Rebroadcasting                      related fees, and the Exchange is not                 Exchange. The proposed end user-
                                                  Users and Transmittal Users and their                    aware of any problems that Users would                related definitions, fees and reporting
                                                  customers and would not receive a                        have in complying with the proposed                   requirements would be applied
                                                  share of any fees charged by                             change.                                               uniformly to all Users providing
                                                  Rebroadcasting Users and Transmittal                                                                           multicast and unicast connections and
                                                  Users for their services.                                2. Statutory Basis
                                                                                                                                                                 would not unfairly discriminate
                                                  General                                                     The Exchange believes that the                     between similarly situated Users of co-
                                                                                                           proposed rule change is consistent with               location services.
                                                     As is the case with all Exchange co-                  Section 6(b) of the Act,19 in general, and               In addition, the proposed end user
                                                  location arrangements, (i) neither a User                furthers the objectives of Sections                   fees would fairly and equitably allocate
                                                  nor any of the User’s customers would                    6(b)(5) of the Act,20 in particular,                  the costs associated with maintaining
                                                  be permitted to submit orders directly to                because it is designed to prevent                     the Data Center facility, hardware and
                                                  the Exchange unless such User or                         fraudulent and manipulative acts and                  equipment and related to personnel
                                                  customer is a Member, a Sponsored                        practices, to promote just and equitable              required for installation and ongoing
                                                  Participant or an agent thereof (e.g., a                 principles of trade, to foster cooperation            monitoring, support and maintenance of
                                                  service bureau providing order entry                     and coordination with persons engaged                 such service among all Users.
                                                  services); (ii) use of the co-location                   in regulating, clearing, settling,                       In the absence of the proposed end
                                                  services proposed herein would be                        processing information with respect to,               user fees, no charges would be assessed
                                                  completely voluntary and available to                    and facilitating transactions in                      related to the benefit that Multicast End
                                                  all Users on a non-discriminatory                        securities, to remove impediments to,                 Users and Unicast End Users receive
                                                  basis; 17 and (iii) a User would only                    and perfect the mechanisms of, a free                 from these services through the
                                                  incur one charge for the particular co-                  and open market and a national market                 Rebroadcasting or Transmittal User from
                                                  location service described herein,                       system and, in general, to protect                    whom they receive data, and the
                                                  regardless of whether the User connects                  investors and the public interest and                 Rebroadcasting or Transmittal Users
                                                                                                           because it is not designed to permit                  would thus receive disproportionate
                                                     16 The Exchange may review available                  unfair discrimination between                         benefits.
                                                  information regarding the Affiliate status of an end     customers, issuers, brokers, or dealers.                 The Exchange believes that the
                                                  user and reserves the right to request additional           The Exchange also believes that the                proposed fees are reasonable in that
                                                  information to verify the Affiliate status of such                                                             they are designed to defray applicable
                                                  entity. The Exchange would approve a request to          proposed rule change is consistent with
                                                  exclude an Affiliate unless it determines that the       Section 6(b)(4) of the Act,21 in                      expenses incurred and resources
                                                  certification is not accurate. The Exchange believes     particular, because it provides for the               expended by the Exchange in support of
                                                  that this procedure is consistent with the               equitable allocation of reasonable dues,              Rebroadcasting Users and Transmittal
                                                  certification procedures relating to its Partial                                                               Users, including those associated with
                                                  Cabinet Solution bundles. See Exchange Act               fees, and other charges among its
                                                  Release No. 76616, supra note 11, at 7402.               members, issuers and other persons                    overhead and technology infrastructure,
                                                     17 As is currently the case, Users that receive co-   using its facilities and does not unfairly            administrative, maintenance and
                                                  location services from the Exchange will not receive     discriminate between customers,                       operational costs, such as the costs of
                                                  any means of access to the Exchange’s trading and                                                              maintaining multiple connections with
                                                  execution systems that is separate from, or superior
                                                                                                           issuers, brokers or dealers. Overall, the
                                                  to, that of others with access to the Exchange’s         Exchange believes that the proposed                   multiple providers. The Exchange
                                                  trading and execution systems. In this regard, all       change is consistent with the Act                     incurs expenses and expends resources
                                                  orders sent to the Exchange enter the Exchange’s         because the Exchange offers the co-                   in connection with the support of
                                                  trading and execution systems through the same
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                                                                                                                                                                 Rebroadcasting Users and Transmittal
                                                  order gateway, regardless of whether the sender is
                                                  co-located in the data center or not. In addition, co-
                                                                                                             18 See Securities Exchange Act Release No. 70173,   Users. Some such costs are indirect,
                                                  located Users do not receive any market data or data     supra note 5 at 50459. The Exchange’s affiliates      including those associated with
                                                  service product that is not available to users that      have also submitted substantially the same            overhead and technology infrastructure,
                                                  have access to the Exchange’s trading and execution      proposed rule change. See SR–NYSE–2015–11 and
                                                                                                           SR–NYSEMKT–2015–15.                                   administrative, maintenance and
                                                  systems, although Users that receive co-location
                                                  services normally would expect reduced latencies
                                                                                                             19 15 U.S.C. 78f(b).                                operational costs. Since the inception of
                                                  in sending orders to, and receiving market data            20 15 U.S.C. 78f(b)(5).                             co-location, there have been numerous
                                                  from, the Exchange.                                        21 15 U.S.C. 78f(b)(4).                             network infrastructure improvements


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                                                                                   Federal Register / Vol. 81, No. 78 / Friday, April 22, 2016 / Notices                                           23777

                                                  performed and administrative controls                   Users. If the proposed fees were limited              be applied uniformly to all Users
                                                  established.                                            to Rebroadcasting Users and Transmittal               providing multicast and unicast
                                                     Additionally, the Exchange has                       Users whose Multicast or Unicast End                  connections and would not unfairly
                                                  automated retransmission facilities for                 Users were themselves Users, no                       discriminate between similarly situated
                                                  most of its Users that receive multicast                charges would be assess related to the                Users of co-location services.
                                                  transmissions. These facilities benefit                 benefit that end users outside of co-                    The Exchange believes that excluding
                                                  Rebroadcasting Users by reducing their                  location received from these services                 Affiliates from the definitions of
                                                  operational costs associated with                       through the rebroadcasting or                         Multicast End Users and Unicast End
                                                  retransmissions to Multicast End Users                  transmitting User from whom they                      Users is reasonable because, in its
                                                  that are also Users. The network                        received data. As a result, the                       experience, when the Exchange
                                                  infrastructure has been expanded to                     Rebroadcasting Users and Transmittal                  provides network support to a User
                                                  keep pace with the increased number of                  Users whose Multicast or Unicast End                  rebroadcasting or transmitting multicast
                                                  services available to Users, including                  Users were themselves Users would                     or unicast data to Affiliate end users, the
                                                  Rebroadcasting and Transmittal Users,                   support a disproportionate share of the               Exchange’s administrative burden and
                                                  which, in turn, has increased the                       Exchange’s administrative burden and                  operational costs are reduced in
                                                  administrative and operational costs                    operational costs relating to end users,              comparison to when it supports a
                                                  associated with delivery by                             and the rebroadcasting or transmitting                Rebroadcasting User or Transmittal User
                                                  Rebroadcasting Users and Transmittal                    Users would receive disproportionate                  rebroadcasting or transmitting multicast
                                                  Users to their Multicast End Users and                  benefits.                                             or unicast data to a Multicast End User
                                                  Unicast End Users, respectively. The                       In addition, the Exchange believes                 or Unicast End User, respectively. In its
                                                  Exchange believes that the proposed                     that it is reasonable to charge the same              experience, entities that are Affiliates
                                                  higher fees proposed in connection with                 amount for one or two connections                     typically act as one entity, with one
                                                  the multicast format are reasonable                     because it would encourage Users and                  infrastructure, one administration, and
                                                  because they reflect the Exchange’s                     their customers to establish two                      one network support group.
                                                  experience that there are higher                        connections and thereby create                        Accordingly, when the Exchange
                                                  maintenance costs associated with                       redundancy in the connections.                        provides network support to a User
                                                  supporting and rebroadcasting the                          The Exchange believes that the                     rebroadcasting or transmitting multicast
                                                  multicast format, largely due to                        proposed amendments to the definition                 or unicast data to Affiliate end users, the
                                                  bandwidth requirements.                                 of Affiliates regarding the control                   Exchange is effectively supporting one
                                                     In addition, based on its experience,                relationship are reasonable because they              entity, irrespective of how many
                                                  the Exchange believes that the proposed                 would make the definition more                        Affiliate end users are involved.
                                                  fees are reasonable in that, as a general               accessible and transparent and provide                   The Exchange believes that having the
                                                  matter, the Exchange has a greater                      market participants with clarity as to                definition of Affiliates encompass non-
                                                  administrative burden and incurs                        what entities are considered Affiliates,              Users is reasonable because in its
                                                  greater operational costs to support                    ensuring that Users exclude all possible              experience entities that are Affiliates
                                                  Rebroadcasting Users and Transmittal                    Affiliates from the proposed fees and                 typically act as one entity irrespective of
                                                  Users than other Users. The Exchange                    the existing fees for Partial Cabinet                 whether one or more of them are not
                                                  generally provides more direct support                  Solution bundles. The Exchange                        Users. If the definition did not
                                                  to Rebroadcasting Users and Transmittal                 believes that setting the common                      encompass non-Users, a User would
                                                  Users than other Users, typically in the                ownership or control threshold in the                 have to pay the proposed fee if it
                                                  form of network support for the services                definition of Affiliates of Multicast End             rebroadcast or transmitted multicast or
                                                  that Rebroadcasting Users and                           Users and Unicast End Users at 50% is                 unicast data to an end user that was not
                                                  Transmittal Users provide their                         reasonable because it is the same                     a User but otherwise met the definition
                                                  Multicast End Users and Unicast End                     threshold as in the current definition of             of Affiliate. However, the Exchange
                                                  Users, respectively. Typically when an                  Affiliates.                                           would incur the same costs irrespective
                                                  issue arises, the Exchange and the                         Expanding the definition of Affiliates,            of whether the end user is itself a User
                                                  applicable Rebroadcasting User or                       adding the definitions of Multicast End               or is located outside of co-location.
                                                  Transmittal User would conduct a                        User, Rebroadcasting User, Unicast End                Accordingly, the Exchange believes that
                                                  review to determine the cause of an                     User, and Transmittal User, and adding                having the definition of Affiliates
                                                  issue, with the participation of the                    the proposed note on the reporting                    encompass non-Users avoids disparate
                                                  relevant Multicast or Unicast End User.                 requirements to the Fee Schedules                     treatment of a Rebroadcasting User or
                                                  Based on its experience, the Exchange                   would make such definitions and                       Transmittal User that has a non-User as
                                                  finds that when the User is a                           requirements accessible and transparent               its Affiliate, as compared to one that has
                                                  Rebroadcasting User or Transmittal                      and provide market participants with                  a User as its Affiliate.
                                                  User, pinpointing the issue and                         clarity as to the application of the                     The Exchange believes that it is
                                                  providing the needed network support                    proposed fees. The Exchange believes                  reasonable that, under the proposed
                                                  becomes more complicated because                        that the proposal would remove                        definition, two Multicast End Users or
                                                  each entity involved has its own                        impediments to, and perfect the                       Unicast End Users would not be
                                                  infrastructure and administration.                      mechanisms of, a free and open market                 considered Affiliates even if they
                                                     The Exchange believes that it is                     and a national market system and, in                  otherwise met the requirements of the
                                                  reasonable to charge Rebroadcasting                     general, protect investors and the public             definition. The Exchange has no direct
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                                                  Users and Transmittal Users the                         interest because by including the                     contract with a Rebroadcasting User’s
                                                  proposed fees irrespective of whether                   definitions and reporting requirements                Multicast End Users for connectivity to
                                                  their Multicast or Unicast End User is a                in the Fee Schedules, the proposed                    Exchange data, or with a Transmittal
                                                  User, because the Exchange provides                     change would provide all Users with                   User’s Unicast End Users for the
                                                  Rebroadcasting Users and Transmittal                    clarity as to the availability and                    transmission of messages to and from
                                                  Users support related to their Multicast                application of co-location services and               the Exchange. As a result, the Exchange
                                                  and Unicast End Users that are outside                  fees. Such end user-related definitions,              would not be able to independently
                                                  of co-location as well as those that are                fees and reporting requirements would                 ascertain which Multicast and


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                                                  23778                            Federal Register / Vol. 81, No. 78 / Friday, April 22, 2016 / Notices

                                                  Transmittal Users met the definition of                 The Exchange believes the proposed                      applied uniformly to all Users providing
                                                  Affiliates, and would have no standing                  changes are equitable and not unfairly                  multicast and unicast connections.
                                                  to require such Multicast and Unicast                   discriminatory because they would                          In addition, the Exchange believes
                                                  End Users to report their Affiliates. The               continue to encourage member                            that the proposed end user fees would
                                                  Exchange believes it would create an                    organizations to send orders to the Floor               not impose any burden on competition
                                                  unnecessary administrative burden on                    for execution, thereby contributing to                  that is not necessary or appropriate in
                                                  Users to require Rebroadcasting Users                   robust levels of liquidity on the Floor,                furtherance of the purposes of the Act
                                                  and Transmittal Users to determine                      which benefits all market participants.                 because they would fairly and equitably
                                                  which, if any, of their Multicast and                      The Exchange believes that the                       allocate the costs associated with
                                                  Unicast End Users were affiliated, and                  proposal to have Users report the                       maintaining the Data Center facility,
                                                  to report such to the Exchange.                         number of their Multicast End Users                     hardware and equipment and related to
                                                     The Exchange believes that the                       and Unicast End Users and the number                    personnel required for installation and
                                                  proposal to exclude Affiliates from the                 of connections to each such Multicast                   ongoing monitoring, support and
                                                  definitions of Multicast End User and                   End User and Unicast End User is                        maintenance of such service among all
                                                  Unicast End User is not designed to                     reasonable because it will ensure that                  Users, as well as applicable expenses
                                                  permit unfair discrimination between                    the proposed fees are assessed                          incurred and resources expended by the
                                                  customers, issuers, brokers or dealers                  accurately and will provide market                      Exchange in support of Rebroadcasting
                                                  because the proposed rule avoids                        participants with clarity as to how the                 Users and Transmittal Users. In the
                                                  disparate treatment of Users that have                  fees will be assessed.                                  absence of the proposed end user fees,
                                                  divided their various business activities                  For the reasons above, the proposed                  no charges would be assessed related to
                                                  among separate corporate entities, as                   change would not unfairly discriminate                  the benefit that Multicast End Users and
                                                  compared to Users that operate those                    between or among market participants                    Unicast End Users receive from these
                                                  business activities within a single                     that are otherwise capable of satisfying                services through the Rebroadcasting or
                                                  corporate entity. In addition, the                      any applicable co-location fees,                        Transmittal User from whom they
                                                  inclusion of non-Users in the definition                requirements, terms and conditions                      receive data, and the Rebroadcasting or
                                                  of Affiliates is not designed to permit                 established from time to time by the                    Transmittal Users would thus receive
                                                  unfair discrimination between                           Exchange.                                               disproportionate benefits.
                                                  customers, issuers, brokers or dealers                                                                             The Exchange believes that the
                                                                                                             Finally, the Exchange believes that it
                                                  because the proposed rule avoids                                                                                proposed end user fees would not
                                                                                                          is subject to significant competitive
                                                  disparate treatment of Users that have                                                                          impose any burden on competition that
                                                                                                          forces, as described below in the
                                                  Affiliates that are not Users, as                                                                               is not necessary or appropriate in
                                                                                                          Exchange’s statement regarding the
                                                  compared to Users whose Affiliates are                                                                          furtherance of the purposes of the Act
                                                                                                          burden on competition.
                                                  all Users.                                                                                                      because the Exchange has tailored the
                                                                                                             For these reasons, the Exchange
                                                     The Exchange believes that the                                                                               proposed definition of Affiliate to
                                                                                                          believes that the proposal is consistent                include User and non-User Affiliates. If
                                                  proposal to exclude from the definition                 with the Act.
                                                  of Multicast End Users a User that                                                                              the proposed fees were limited to
                                                  normalizes raw data before                              B. Self-Regulatory Organization’s                       Rebroadcasting Users and Transmittal
                                                  rebroadcasting it to its customers is                   Statement on Burden on Competition                      Users whose Multicast or Unicast End
                                                  reasonable and is not designed to permit                                                                        Users were themselves Users, no
                                                                                                            In accordance with Section 6(b)(8) of
                                                  unfair discrimination between                                                                                   charges would be assessed relating to
                                                                                                          the Act,23 the Exchange believes that the
                                                  customers, issuers, brokers or dealers                                                                          the benefit that end users outside of co-
                                                                                                          proposed rule change would not impose                   location received from these services
                                                  because a User that normalizes and then                 any burden on competition that is not
                                                  rebroadcasts normalized data acts as the                                                                        through the rebroadcasting or
                                                                                                          necessary or appropriate in furtherance                 transmitting User from whom they
                                                  source of the feed, and so does not need                of the purposes of the Act because any
                                                  the Exchange’s assistance if an issue                                                                           received data. As a result, the
                                                                                                          market participants that are otherwise                  Rebroadcasting Users and Transmittal
                                                  arises with its normalized feed. As a                   capable of satisfying any applicable co-
                                                  result, the Exchange does not incur the                                                                         Users whose Multicast or Unicast End
                                                                                                          location fees, requirements, terms and                  Users were themselves Users would
                                                  same costs in relation to end users of                  conditions established from time to time
                                                  normalized data as it does in relation to                                                                       support a disproportionate share of the
                                                                                                          by the Exchange could have access to                    Exchange’s administrative burden and
                                                  Multicast End Users.                                    the co-location services provided in the
                                                     The Exchange believes that the                                                                               operational costs relating to end users,
                                                                                                          Data Center. This is also true because,                 and the rebroadcasting or transmitting
                                                  proposal to exclude from the definition                 in addition to the services being
                                                  of Unicast End User those customers of                                                                          Users would receive disproportionate
                                                                                                          completely voluntary, they are available                benefits.
                                                  a Transmittal User (and customers of                    to all Users on an equal basis (i.e., the
                                                  Users’ customers) that send all orders to                                                                          The Exchange believes that the
                                                                                                          same range of products and services are                 proposed end user fees would not
                                                  a Floor broker for representation on the                available to all Users). The proposed
                                                  Exchange is reasonable because it would                                                                         impose any burden on competition that
                                                                                                          end user-related definitions, fees and                  is not necessary or appropriate in
                                                  encourage sending orders to Floor                       reporting requirements would be
                                                  brokers for execution, thereby                                                                                  furtherance of the purposes of the Act
                                                  encouraging additional displayed                                                                                because the Exchange has excluded
                                                                                                          (‘‘The Commission also notes that . . . the ALO         Affiliates from the proposed definitions
                                                  liquidity on the Exchange. This would                   limit order is designed to provide displayed
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                                                  encourage the execution of transactions                 liquidity to the market and thereby contribute to
                                                                                                                                                                  of Multicast End Users and Unicast End
                                                  on a public registered exchange, thereby                public price discovery—an objective that is fully       Users. As a result, the proposed end
                                                  promoting public price discovery—an                     consistent with the Act’’); see also 15 U.S.C. 78k–     user fees exclude fees related to end
                                                                                                          1(a)(1)(c)(iii) and (iv) (objectives for the national   users that, in the Exchange’s experience,
                                                  objective fully consistent with the Act.22              market system include assuring the availability of
                                                                                                          information with respect to quotations in securities
                                                                                                                                                                  typically act as one entity, with one
                                                     22 See Exchange Act Release No. 73333 (October       and the practicability of brokers executing             infrastructure and one administration.
                                                  9, 2014), 79 FR 62223 (October 16, 2014) (SR–           investors’ orders in the best market).                     The Exchange believes that the
                                                  NYSE–2014–32 and SR–NYSEMKT–2014–56)                       23 15 U.S.C. 78f(b)(8).                              proposal to exclude from the definition


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                                                                                   Federal Register / Vol. 81, No. 78 / Friday, April 22, 2016 / Notices                                           23779

                                                  of Unicast End User those customers of                  Comments may be submitted by any of                   SECURITIES AND EXCHANGE
                                                  a Transmittal User (and customers of                    the following methods:                                COMMISSION
                                                  Users’ customers) that send all orders to
                                                  a Floor broker for representation on the                Electronic Comments                                   Submission for OMB Review;
                                                  Exchange is reasonable because it would                    • Use the Commission’s Internet                    Comment Request
                                                  encourage providing liquidity on the                    comment form (http://www.sec.gov/
                                                  Exchange, thereby contributing to the                                                                         Upon Written Request, Copies Available
                                                                                                          rules/sro.shtml); or                                   From: Securities and Exchange
                                                  Exchange’s competitiveness with other
                                                  markets. In addition, the Exchange                         • Send an email to rule-comments@                   Commission, Office of FOIA Services,
                                                  believes that expanding the definition of               sec.gov. Please include File No. SR–                   100 F Street NE., Washington, DC
                                                  Affiliates and adding the definitions of                NYSEARCA–2016–19 on the subject                        20549–2736.
                                                  Multicast End User, Rebroadcasting                      line.                                                 Extension:
                                                  User, Unicast End User, and Transmittal                                                                         Rule 606 of Regulation NMS, SEC File No.
                                                                                                          Paper Comments                                            270–489, OMB Control No. 3235–0541.
                                                  User to the Fee Schedules would make
                                                  such definitions accessible and                           • Send paper comments in triplicate                    Notice is hereby given that, pursuant
                                                  transparent and provide market                          to Secretary, Securities and Exchange                 to the Paperwork Reduction Act of 1995
                                                  participants with clarity as to the                     Commission, 100 F Street NE.,                         (44 U.S.C. 3501 et seq.) (‘‘PRA’’), the
                                                  availability and application of the                     Washington, DC 20549–1090.                            Securities and Exchange Commission
                                                  proposed fees.                                                                                                (‘‘Commission’’) has submitted to the
                                                     Finally, the Exchange notes that it                  All submissions should refer to File No.              office of Management and Budget
                                                  operates in a highly competitive market                 SR–NYSEARCA–2016–19. This file                        (‘‘OMB’’) a request for approval of
                                                  in which market participants can                        number should be included on the                      extension of the previously approved
                                                  readily favor competing venues if, for                  subject line if email is used. To help the            collection of information provided for in
                                                  example, they deem fee levels at a                      Commission process and review your                    Rule 606 of Regulation NMS (‘‘Rule
                                                  particular venue to be excessive or if                  comments more efficiently, please use                 606’’) (17 CFR 242.606) under the
                                                  they determine that another venue’s                     only one method. The Commission will                  Securities Exchange Act of 1934 (15
                                                  products and services are more                          post all comments on the Commission’s                 U.S.C. 78a et. seq.).
                                                  competitive than on the Exchange. In                    Internet Web site (http://www.sec.gov/                   Rule 606 (formerly known as Rule
                                                  such an environment, the Exchange                       rules/sro.shtml). Copies of the                       11Ac1–6) requires broker-dealers to
                                                  must continually review, and consider                   submission, all subsequent                            prepare and disseminate quarterly order
                                                  adjusting, the services it offers as well               amendments, all written statements                    routing reports. Much of the information
                                                  as any corresponding fees and credits to                with respect to the proposed rule                     needed to generate these reports already
                                                  remain competitive with other                           change that are filed with the                        should be collected by broker-dealers in
                                                  exchanges. For the reasons described                    Commission, and all written                           connection with their periodic
                                                  above, the Exchange believes that the                   communications relating to the                        evaluations of their order routing
                                                  proposed rule change reflects this                      proposed rule change between the                      practices. Broker-dealers must conduct
                                                  competitive environment.                                Commission and any person, other than                 such evaluations to fulfill the duty of
                                                  C. Self-Regulatory Organization’s                       those that may be withheld from the                   best execution that they owe their
                                                  Statement on Comments on the                            public in accordance with the                         customers.
                                                  Proposed Rule Change Received From                      provisions of 5 U.S.C. 552, will be                      The collection of information
                                                  Members, Participants, or Others                        available for Web site viewing and                    obligations of Rule 606 apply to broker-
                                                                                                          printing in the Commission’s Public                   dealers that route non-directed customer
                                                    No written comments were solicited                    Reference Room, 100 F Street NE.,                     orders in covered securities. The
                                                  or received with respect to the proposed                Washington, DC 20549 on official                      Commission estimates that out of the
                                                  rule change.                                            business days between the hours of                    currently 4,240 broker-dealers that are
                                                  III. Date of Effectiveness of the                       10:00 a.m. and 3:00 p.m. Copies of such               subject to the collection of information
                                                  Proposed Rule Change and Timing for                     filing also will be available for                     obligations of Rule 606, clearing brokers
                                                  Commission Action                                       inspection and copying at the principal               bear a substantial portion of the burden
                                                     Within 45 days of the date of                        office of the Exchange. All comments                  of complying with the reporting and
                                                  publication of this notice in the Federal               received will be posted without change;               recordkeeping requirements of Rule 606
                                                  Register or within such longer period (i)               the Commission does not edit personal                 on behalf of small to mid-sized
                                                  as the Commission may designate up to                   identifying information from                          introducing firms. There currently are
                                                  90 days of such date if it finds such                   submissions. You should submit only                   approximately 185 clearing brokers. In
                                                  longer period to be appropriate and                     information that you wish to make                     addition, there are approximately 81
                                                  publishes its reasons for so finding or                 available publicly. All submissions                   introducing brokers that receive funds
                                                  (ii) as to which the Exchange consents,                 should refer to File No. SR–                          or securities from their customers.
                                                  the Commission shall: (a) By order                      NYSEARCA–2016–19, and should be                       Because at least some of these firms also
                                                  approve or disapprove such proposed                     submitted on or before May 13, 2016.                  may have greater involvement in
                                                  rule change, or (b) institute proceedings                                                                     determining where customer orders are
                                                                                                            For the Commission, by the Division of
                                                  to determine whether the proposed rule                                                                        routed for execution, they have been
                                                                                                          Trading and Markets, pursuant to delegated
                                                                                                                                                                included, along with clearing brokers, in
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                                                  change should be disapproved.                           authority.24
                                                                                                                                                                estimating the total burden of Rule 606.
                                                  IV. Solicitation of Comments                            Robert W. Errett,                                        The Commission staff estimates that
                                                    Interested persons are invited to                     Deputy Secretary.                                     each firm significantly involved in order
                                                  submit written data, views, and                         [FR Doc. 2016–09322 Filed 4–21–16; 8:45 am]           routing practices incurs an average
                                                  arguments concerning the foregoing,                     BILLING CODE 8011–01–P                                burden of 40 hours to prepare and
                                                  including whether the proposed rule                                                                           disseminate a quarterly report required
                                                  change is consistent with the Act.                        24 17   CFR 200.30–3(a)(12).                        by Rule 606, or a burden of 160 hours


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Document Created: 2017-08-22 23:37:55
Document Modified: 2017-08-22 23:37:55
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation81 FR 23773 

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