83 FR 51022 - Self-Regulatory Organizations; MIAX PEARL, LLC; Notice of Filing of a Proposed Rule Change To Amend the Fee Schedule Regarding Connectivity Fees for Members and Non-Members; Suspension of and Order Instituting Proceedings To Determine Whether To Approve or Disapprove the Proposed Rule Change
SECURITIES AND EXCHANGE COMMISSION Federal Register Volume 83, Issue 196 (October 10, 2018)
Federal Register Volume 83, Issue 196 (October 10, 2018)
| Page Range | 51022-51026 | |
| FR Document | 2018-21922 |
[Federal Register Volume 83, Number 196 (Wednesday, October 10, 2018)] [Notices] [Pages 51022-51026] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-21922] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-84358; File No. SR-PEARL-2018-19 Self-Regulatory Organizations; MIAX PEARL, LLC; Notice of Filing of a Proposed Rule Change To Amend the Fee Schedule Regarding Connectivity Fees for Members and Non-Members; Suspension of and Order Instituting Proceedings To Determine Whether To Approve or Disapprove the Proposed Rule Change October 3, 2018. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that on September 18, 2018, MIAX PEARL, LLC (``MIAX PEARL'' or ``Exchange'') filed with the Securities and Exchange Commission (``Commission'') a proposed rule change as described in Items I and II below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons and is, pursuant to Section 19(b)(3)(C) of the Act, hereby: (i) Temporarily suspending the proposed rule change; and (ii) instituting proceedings to determine whether to approve or disapprove the proposed rule change. --------------------------------------------------------------------------- \1\ 15 U.S.C. 78s(b)(1). \2\ 17 CFR 240.19b-4. --------------------------------------------------------------------------- I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange is filing a proposal to amend the MIAX PEARL Fee Schedule (the ``Fee Schedule'') to modify certain of the Exchange's system connectivity fees. The text of the proposed rule change is available on the Exchange's website at http://www.miaxoptions.com/rule-filings/pearl at MIAX PEARL's principal office, and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Description of the Proposed Rule Change In its filing with the Commission, the Exchange 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 these 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 aspects 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 amend the Fee Schedule regarding connectivity to the Exchange. Specifically, the Exchange proposes to amend Sections 5(a) and (b) of the Fee Schedule to increase the network connectivity fees for the 1 Gigabit (``Gb'') fiber connection, the 10Gb fiber connection, and the 10Gb ultra-low latency (``ULL'') fiber connection, which are charged to both Members \3\ and non-Members of the Exchange for connectivity to the Exchange's primary/secondary facility. The Exchange also proposes to increase the network connectivity fees for the 1Gb and 10Gb fiber connections for connectivity to the Exchange's disaster recovery facility. These proposed fee increases are collectively referred to herein as the ``Proposed Fee Increases.'' --------------------------------------------------------------------------- \3\ The term ``Member'' means an individual or organization that is registered with the Exchange pursuant to Chapter II of the Exchange's Rules for purposes of trading on the Exchange as an ``Electronic Exchange Member'' or ``Market Maker.'' Members are deemed ``members'' under the Exchange Act. See Exchange Rule 100. --------------------------------------------------------------------------- The Exchange initially filed the Proposed Fee Increases on July 31, 2018, designating the Proposed Fee Increases effective August 1, 2018.\4\ The proposed rule change was published for comment in the Federal Register on August 13, 2018.\5\ The Commission received one comment letter on the proposal.\6\ The Proposed Fee Increases remained in effect until they were temporarily suspended pursuant to a suspension order (the ``Suspension Order'') issued by the Commission.\7\ The Suspension Order also instituted proceedings to determine whether to approve or disapprove the proposed rule change.\8\ --------------------------------------------------------------------------- \4\ See Securities Exchange Act Release No. 83785 (August 7, 2018), 83 FR 40101 (August 13, 2018)(SR-PEARL-2018-16). \5\ Id. \6\ See Letter from Tyler Gellasch, Executive Director, The Healthy Markets Association, to Brent J. Fields, Secretary, Commission, dated September 4, 2018 (``Healthy Markets Letter''). \7\ See Securities Exchange Act Release No. 34-84177 (September 17, 2018). \8\ Id. --------------------------------------------------------------------------- The Healthy Markets Letter argued that the Exchange did not provide sufficient information in its filing to support a finding that the proposal is consistent with the Act. Specifically, the Healthy Markets Letter objected to the Exchange's reliance on the fees of other exchanges to demonstrate that its fee increases are consistent with the Act. In addition, the Healthy Markets Letter argued that the Exchange did not offer any details to support its basis for asserting that the proposed fee increases are consistent with the Act. The Exchange is now re-filing the Proposed Fee Increases, and is also providing additional detail regarding the basis for the Proposed Fee Increases. The proposed rule change is immediately effective upon filing with the Commission pursuant to Section 19(b)(3)(A) of the Act. The Exchange currently offers various bandwidth alternatives for connectivity to the Exchange, consisting of a 1Gb fiber connection, a 10Gb fiber connection, and a 10Gb ULL fiber connection. The 10Gb ULL offering uses an ultra-low latency switch, which provides faster processing of messages sent to it in comparison to the switch used for the other types of connectivity. The Exchange currently assesses the following monthly network connectivity fees to both Members and non- Members for connectivity to the Exchange's primary/secondary facility: (a) $1,100 for the 1Gb connection; (b) $5,500 for the 10Gb connection; and (c) $8,500.00 for the 10Gb ULL connection. The Exchange also assesses to both Members and non-Members a monthly per connection network connectivity fee of $500 for each 1Gb connection to the disaster recovery facility and a monthly per connection network connectivity fee of $2,500 for each 10Gb connection to the disaster recovery facility. The Exchange's MIAX Express Network Interconnect (``MENI'') can be configured to provide Members and non-Members of the Exchange network connectivity to the trading platforms, [[Page 51023]] market data systems, test systems, and disaster recovery facilities of both the Exchange and its affiliate, Miami International Securities Exchange (``MIAX Options''), via a single, shared connection. Members and non-Members utilizing the MENI to connect to the trading platforms, market data systems, test systems and disaster recovery facilities of the Exchange and MIAX Options via a single, shared connection are assessed only one monthly network connectivity fee per connection, regardless of the trading platforms, market data systems, test systems, and disaster recovery facilities accessed via such connection. The Exchange proposes to increase the monthly network connectivity fees for such connections for both Members and non-Members. The network connectivity fees for connectivity to the Exchange's primary/secondary facility will be increased as follows: (a) From $1,100 to $1,400 for the 1Gb connection; (b) from $5,500 to $6,100 for the 10Gb connection; and (c) from $8,500 to $9,300 for the 10Gb ULL connection. The network connectivity fees for connectivity to the Exchange's disaster recovery facility will be increased as follows: (a) From $500 to $550 for the 1Gb connection; and (b) from $2,500 to $2,750 for the 10Gb connection. The Exchange believes that it is reasonable and appropriate to increase its fees charged for use of its connectivity to partially offset increased costs associated with maintaining and enhancing a state-of-the-art exchange network infrastructure in the U.S. options industry. The Exchange notes that other exchanges have similar connectivity alternatives for their participants, including similar low-latency connectivity. For example, Nasdaq PHLX LLC (``Phlx''), NYSE Arca, Inc. (``Arca''), NYSE American LLC (``NYSE American'') and Nasdaq ISE, LLC (``ISE'') all offer a 1Gb, 10Gb and 10Gb low latency ethernet connectivity alternatives to each of their participants.\9\ The Exchange further notes that Phlx, ISE, Arca and NYSE American each charge higher rates for such similar connectivity to primary and secondary facilities.\10\ Additionally, the Exchange's proposed connectivity fees to its disaster recovery facility are within the range of the fees charged by other exchanges for similar connectivity alternatives.\11\ The Exchange believes that it is reasonable and appropriate to increase its fees charged for use of its connectivity to partially offset increased costs associated with maintaining and enhancing a state-of-the-art exchange network infrastructure in the U.S. options industry. --------------------------------------------------------------------------- \9\ See Phlx and ISE Rules, General Equity and Options Rules, General 8, Section 1(b). Phlx and ISE each charge a monthly fee of $2,500 for each 1Gb connection, $10,000 for each 10Gb connection and $15,000 for each 10Gb Ultra connection, which the equivalent of the Exchange's 10Gb ULL connection. See also NYSE American Fee Schedule, Section V.B, and Arca Fees and Charges, Co-Location Fees. NYSE American and Arca each charge a monthly fee of $5,000 for each 1Gb circuit, $14,000 for each 10Gb circuit and $22,000 for each 10Gb LX circuit, which the equivalent of the Exchange's 10Gb ULL connection. \10\ Id. \11\ See Nasdaq ISE Schedule of Fees, IX(D) (charging $3,000 for disaster recovery testing & relocation services); see also Cboe Exchange, Inc. (``CBOE'') Fees Schedule, p. 14, Cboe Command Connectivity Charges (charging a monthly fee of $2,000 for a 1Gb disaster recovery network access port and a monthly fee of $6,000 for a 10Gb disaster recovery network access port). --------------------------------------------------------------------------- In particular, the Exchange's increased costs associated with supporting its network are due to several factors, including increased costs associated with maintaining and expanding a team of highly- skilled network engineers, increasing fees charged by the Exchange's third-party data center operator, and costs associated with projects and initiatives designed to improve overall network performance and stability, through the Exchange's R&D efforts. For example, the Exchange has had to hire additional network engineering staff in the last year, and plans to hire additional staff in the coming months. Further, the Exchange contracts with a third-party data center provider for its data center space. The Exchange does not operate its own data centers. Other exchange operators do operate their own data centers. Thus, they can better control data center costs. They also operate them as profit centers. Conversely, the Exchange is subject to fee increases from its data center provider, which the Exchange experienced in the last year. Further, the Exchange invests significant resources in network R&D to improve the overall performance and stability of its network. For example, the Exchange has a number of network monitoring tools (some of which were developed in-house, and some of which are licensed from third-parties), that continually monitor, detect, and report network performance, many of which serve as significant value- adds to the Exchange's Members and enable the Exchange to provide a high level of customer service. These tools detect and report performance issues, and thus enable the Exchange to proactively notify a Member (and the SIPs) when the Exchange detects a problem with a Member's connectivity. The costs associated with the maintenance and improvement of existing tools and the development of new tools resulted in increased cost to the Exchange. Certain recently developed network aggregation and monitoring tools provide the Exchange with the ability to measure network traffic with a much more granular level of variability. This is important as Exchange Members demand a higher level of network determinism and the ability to measure variability in terms of single digit nanoseconds. Also, the Exchange routinely conducts R&D projects to improve the performance of the network's hardware infrastructure. As an example, in the last year, the Exchange's R&D efforts resulted in a performance improvement in its network switches, requiring the purchase of new switching equipment, and thus resulting in increased costs. In sum, the costs associated with maintaining and enhancing a state-of-the-art exchange network infrastructure in the U.S. options industry is a significant expense for the Exchange that continues to increase, and thus the Exchange believes that it is reasonable to offset some of those increased costs by increasing its network connectivity fees, as proposed herein. Overall, the Proposed Fee Increases are projected to offset only a portion of the Exchange's increased network connectivity costs. 2. Statutory Basis The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act \12\ in general, and furthers the objectives of Section 6(b)(4) of the Act \13\ in particular, in that it provides for the equitable allocation of reasonable dues, fees and other charges among Exchange Members and issuers and other persons using any facility or system which the Exchange operates or controls. The Exchange also believes the proposal furthers the objectives of Section 6(b)(5) of the Act \14\ in that it is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general to protect investors and the public interest and is not designed to permit unfair discrimination between customer, issuers, brokers and dealers. --------------------------------------------------------------------------- \12\ 15 U.S.C. 78f(b). \13\ 15 U.S.C. 78f(b)(4). \14\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- The Exchange believes that its proposal is consistent with Section 6(b)(4) of the Act because the fees assessed for connectivity allow the [[Page 51024]] Exchange to cover the costs associated with providing and maintaining the necessary hardware and other infrastructure to support this technology. The Exchange believes that the proposal to increase the fees for connectivity alternatives is fair, equitable and not unreasonably discriminatory because the increased fees are assessed equally among all users of the applicable connections. As discussed above, Phlx and ISE each offer different connections with respect to latency, and Arca and NYSE American both offer similar connectivity alternatives.\15\ Despite this, Phlx, ISE, Arca and NYSE American charge a higher fee than the Exchange currently charges for similar connections to primary and secondary facilities.\16\ Furthermore, the connectivity fees for the disaster recovery facilities of other exchanges are within the range of the proposed fees of the Exchange.\17\ For these reasons, the Exchange believes the proposed increase in the fees for the fiber connectivity to the Exchange is reasonable and not unfairly discriminatory. --------------------------------------------------------------------------- \15\ See supra note 9. \16\ Id. \17\ See supra note 11. --------------------------------------------------------------------------- The Exchange believes that the proposal to increase the fees for connectivity alternatives is fair, equitable and not unreasonably discriminatory because the increased fees will only partially offset the Exchange's increased costs associated with maintaining its network infrastructure. In particular, the Exchange's increased costs associated with supporting its network are due to several factors, including increased costs associated with maintaining and expanding a team of highly-skilled network engineers, increasing fees charged by the Exchange's third-party data center operator, and costs associated with projects and initiatives designed to improve overall network performance and stability, through the Exchange's R&D efforts. For example, the Exchange has had to hire additional network engineering staff in the last year, and plans to hire additional staff in the coming months. Further, the Exchange contracts with a third-party data center provider for its data center space. The Exchange does not operate its own data centers. Other exchange operators do operate their own data centers. Thus, they can better control data center costs. They also operate their data centers as profit centers. Conversely, the Exchange is subject to fee increases from its data center provider, which the Exchange experienced in the last year. Further, the Exchange invests significant resources in network R&D to improve the overall performance and stability of its network. For example, the Exchange has a number of network monitoring tools (some of which were developed in- house, and some of which are licensed from third-parties), that continually monitor, detect, and report network performance, many of which serve as significant value-adds to the Exchange's Members and enable the Exchange to provide a high level of customer service. These tools detect and report performance issues, and thus enable the Exchange to proactively notify a Member (and the SIPs) when the Exchange detects a problem with a Member's connectivity. The costs associated with the maintenance and improvement of existing tools and the development of new tools resulted in increased cost to the Exchange. Certain recently developed network aggregation and monitoring tools provide the Exchange with the ability to measure network traffic with a much more granular level of variability. This is important as Exchange Members demand a higher level of network determinism and the ability to measure variability in terms of single digit nanoseconds. Also, the Exchange routinely conducts R&D projects to improve the performance of the network's hardware infrastructure. As an example, in the last year, the Exchange's R&D efforts resulted in a performance improvement in its network switches, requiring the purchase of new switching equipment, and thus resulting in increased costs. In sum, the costs associated with maintaining and enhancing a state-of-the-art exchange network infrastructure in the U.S. options industry is a significant expense for the Exchange that continues to increase, and thus the Exchange believes that it is fair, equitable, and not unreasonably discriminatory to offset some of those increased costs by increasing its network connectivity fees, as proposed herein. Overall, the Proposed Fee Increases are projected to offset only a portion of the Exchange's increased network connectivity costs. The Exchange also believes that its proposal is consistent with Section 6(b)(5) of the Act \18\ because all MIAX PEARL participants have the opportunity to subscribe to the Exchange's connections. There is also no differentiation among MIAX PEARL participants with regard to the fees charged for these services. --------------------------------------------------------------------------- \18\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- B. Self-Regulatory Organization's Statement on Burden on Competition MIAX PEARL does not believe that the proposed rule changes will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. On the contrary, the Exchange believes that the proposed changes should increase both intermarket and intramarket competition. Specifically, the Exchange believes that the changes will promote competition by increasing the connectivity fees to become more within the range of comparable fees assessed by other competing exchanges.\19\ --------------------------------------------------------------------------- \19\ See supra note 9. --------------------------------------------------------------------------- The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges. The Exchange believes that the proposed changes reflect this competitive environment. To the extent that this purpose is achieved, all the Exchange's market participants should benefit from the improved market liquidity. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others Written comments were neither solicited nor received. III. Suspension of the Proposed Rule Change Pursuant to Section 19(b)(3)(C) of the Act,\20\ at any time within 60 days of the date of filing of a proposed rule change pursuant to Section 19(b)(1) of the Act,\21\ the Commission summarily may temporarily suspend the change in the rules of a self-regulatory organization (``SRO'') if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. As discussed below, the Commission believes a temporary suspension of the proposed rule change is necessary and appropriate to allow for additional analysis of the proposed rule change's consistency with the Act and the rules thereunder. --------------------------------------------------------------------------- \20\ 15 U.S.C. 78s(b)(3)(C). \21\ 15 U.S.C. 78s(b)(1). --------------------------------------------------------------------------- Identical fee increases to those proposed herein were originally filed on [[Page 51025]] July 31, 2018, and designated effective August 1, 2018.\22\ That proposal, PEARL-2018-16, was published for comment in the Federal Register on August 13, 2018.\23\ The Commission received one comment letter on that proposal.\24\ On September 17, 2018, pursuant to Section 19(b)(3)(C) of the Act, the Commission: (1) Temporarily suspended the proposed rule change; and (2) instituted proceedings to determine whether to approve or disapprove the proposal.\25\ The instant filing proposes identical fees and raises similar concerns as to whether they are consistent with the Act.\26\ --------------------------------------------------------------------------- \22\ See supra note 4, and accompanying text. \23\ See supra note 5, and accompanying text. \24\ See supra note 6. \25\ See Securities Exchange Act Release No. 84177, 83 FR 47953 (September 21, 2018). \26\ See id. --------------------------------------------------------------------------- When exchanges file their proposed rule changes with the Commission, including fee filings like the Exchange's present proposal, they are required to provide a statement supporting the proposal's basis under the Act and the rules and regulations thereunder applicable to the exchange.\27\ The instructions to Form 19b-4, on which exchanges file their proposed rule changes, specify that such statement ``should be sufficiently detailed and specific to support a finding that the proposed rule change is consistent with [those] requirements.'' \28\ --------------------------------------------------------------------------- \27\ See 17 CFR 240.19b-4 (Item 3 entitled ``Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change''). \28\ Id. --------------------------------------------------------------------------- Among other things, exchange proposed rule changes are subject to Section 6 of the Act, including Sections 6(b)(4), (5), and (8), which requires the rules of an exchange to (1) provide for the equitable allocation of reasonable fees among members, issuers, and other persons using the exchange's facilities; \29\ (2) perfect the mechanism of a free and open market and a national market system, protect investors and the public interest, and not be designed to permit unfair discrimination between customers, issuers, brokers, or dealers; \30\ and (3) not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.\31\ --------------------------------------------------------------------------- \29\ 15 U.S.C. 78f(b)(4). \30\ 15 U.S.C. 78f(b)(5). \31\ 15 U.S.C. 78f(b)(8). --------------------------------------------------------------------------- In temporarily suspending the Exchange's fee change, the Commission intends to further consider whether increasing certain connectivity fees to the Exchange is consistent with the statutory requirements applicable to a national securities exchange under the Act. In particular, the Commission will consider whether the proposed rule change satisfies the standards under the Act and the rules thereunder requiring, among other things, that an exchange's rules provide for the equitable allocation of reasonable fees among members, issuers, and other persons using its facilities; not permit unfair discrimination between customers, issuers, brokers or dealers; and do not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.\32\ --------------------------------------------------------------------------- \32\ See 15 U.S.C. 78f(b)(4), (5), and (8), respectively. --------------------------------------------------------------------------- Therefore, the Commission finds that it is appropriate in the public interest, for the protection of investors, and otherwise in furtherance of the purposes of the Act, to temporarily suspend the proposed rule changes.\33\ --------------------------------------------------------------------------- \33\ For purposes of temporarily suspending the proposed rule change, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). --------------------------------------------------------------------------- IV. Proceedings To Determine Whether To Approve or Disapprove the Proposed Rule Change The Commission is instituting proceedings pursuant to Sections 19(b)(3)(C) \34\ and 19(b)(2)(B) of the Act \35\ to determine whether the proposed rule change should be approved or disapproved. Institution of proceedings does not indicate that the Commission has reached any conclusions with respect to any of the issues involved. Rather, the Commission seeks and encourages interested persons to provide additional comment on the proposed rule change to inform the Commission's analysis of whether to disapprove the proposed rule change. --------------------------------------------------------------------------- \34\ 15 U.S.C. 78s(b)(3)(C). Once the Commission temporarily suspends a proposed rule change, Section 19(b)(3)(C) of the Act requires that the Commission institute proceedings under Section 19(b)(2)(B) to determine whether a proposed rule change should be approved or disapproved. \35\ 15 U.S.C. 78s(b)(2)(B). --------------------------------------------------------------------------- Pursuant to Section 19(b)(2)(B) of the Act,\36\ the Commission is providing notice of the grounds for possible disapproval under consideration: --------------------------------------------------------------------------- \36\ 15 U.S.C. 78s(b)(2)(B). ---------------------------------------------------------------------------Section 6(b)(4) of the Act, which requires that the rules of a national securities exchange ``provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities,'' \37\ --------------------------------------------------------------------------- \37\ 15 U.S.C. 78f(b)(4). --------------------------------------------------------------------------- Section 6(b)(5) of the Act, which requires, among other things, that the rules of a national securities exchange be ``designed to perfect the operation of a free and open market and a national market system'' and ``protect investors and the public interest,'' and not be ``designed to permit unfair discrimination between customers, issuers, brokers, or dealers,'' \38\ and --------------------------------------------------------------------------- \38\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- Section 6(b)(8) of the Act, which requires that the rules of a national securities exchange ``not impose any burden on competition not necessary or appropriate in furtherance of the purposes of [the Act].'' \39\ --------------------------------------------------------------------------- \39\ 15 U.S.C. 78f(b)(8). --------------------------------------------------------------------------- As noted above, the proposal increases connectivity fees for physical connections to the Exchange. The Exchange states that this fee increase would partially offset costs associated with providing and maintaining this technology.\40\ In the instant filing the Exchange states that its increased costs relate to maintaining and expanding a team of highly-skilled network engineers, increasing fees charged by the Exchange's third-party data center operator, and costs associated with projects and initiatives designed to improve overall network performance and stability.\41\ --------------------------------------------------------------------------- \40\ See supra Section II.A.1. \41\ See id. --------------------------------------------------------------------------- Under the Commission's Rules of Practice, the ``burden to demonstrate that a proposed rule change is consistent with the [Act] and the rules and regulations issued thereunder . . . is on the [SRO] that proposed the rule change.'' \42\ The description of a proposed rule change, its purpose and operation, its effect, and a legal analysis of its consistency with applicable requirements must all be sufficiently detailed and specific to support an affirmative Commission finding,\43\ and any failure of an SRO to provide this information may result in the Commission not having a sufficient basis to make an affirmative finding that a proposed rule change is consistent with the Act and the applicable rules and regulations.\44\ --------------------------------------------------------------------------- \42\ Rule 700(b)(3), Commission Rules of Practice, 17 CFR 201.700(b)(3). \43\ See id. \44\ See id. --------------------------------------------------------------------------- The Commission is instituting proceedings to allow for additional consideration and comment on the issues raised herein, including as to whether the proposed fees are consistent with the Act, and specifically, with its requirements that exchange fees be reasonable and equitably allocated; be designed to perfect the mechanism of a free and open market and the national market system, protect investors and the public [[Page 51026]] interest, and not be unfairly discriminatory; or not impose an unnecessary or inappropriate burden on competition.\45\ --------------------------------------------------------------------------- \45\ See 15 U.S.C. 78f(b)(4), (5), and (8). --------------------------------------------------------------------------- V. Commission's Solicitation of Comments The Commission requests written views, data, and arguments with respect to the concerns identified above as well as any other relevant concerns. Such comments should be submitted by October 31, 2018. Rebuttal comments should be submitted by November 14, 2018. Although there do not appear to be any issues relevant to approval or disapproval which would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.\46\ --------------------------------------------------------------------------- \46\ 15 U.S.C. 78s(b)(2). Section 19(b)(2) of the Act grants the Commission flexibility to determine what type of proceeding--either oral or notice and opportunity for written comments--is appropriate for consideration of a particular proposal by an SRO. See Securities Acts Amendments of 1975, Report of the Senate Committee on Banking, Housing and Urban Affairs to Accompany S. 249, S. Rep. No. 75, 94th Cong., 1st Sess. 30 (1975). --------------------------------------------------------------------------- The Commission asks that commenters address the sufficiency and merit of the Exchange's statements in support of the proposal, in addition to any other comments they may wish to submit about the proposed rule change. Interested persons are invited to submit written data, views, and arguments concerning the proposed rule change, 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 rule-comments@sec.gov. Please include File Number SR-PEARL-2018-19 on the subject line. Paper Comments Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090. All submissions should refer to File Number SR-PEARL-2018-19. 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 website (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for website viewing and printing in the Commission's Public Reference Room, 100 F Street NE, Washington, DC 20549 on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-PEARL-2018-19 and should be submitted on or before October 31, 2018. Rebuttal comments should be submitted by November 14, 2018. VI. Conclusion It is therefore ordered, pursuant to Section 19(b)(3)(C) of the Act,\47\ that File Number SR-PEARL-2018-19 be and hereby is, temporarily suspended. In addition, the Commission is instituting proceedings to determine whether the proposed rule change should be approved or disapproved. --------------------------------------------------------------------------- \47\ 15 U.S.C. 78s(b)(3)(C). \48\ 17 CFR 200.30-3(a)(57) and (58). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.\48\ Eduardo A. Aleman, Assistant Secretary. [FR Doc. 2018-21922 Filed 10-9-18; 8:45 am] BILLING CODE 8011-01-P
![51022 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Notices
filing also will be available for (the ‘‘Fee Schedule’’) to modify certain comment letter on the proposal.6 The
inspection and copying at the principal of the Exchange’s system connectivity Proposed Fee Increases remained in
office of the Exchange. All comments fees. effect until they were temporarily
received will be posted without change. The text of the proposed rule change suspended pursuant to a suspension
Persons submitting comments are is available on the Exchange’s website at order (the ‘‘Suspension Order’’) issued
cautioned that we do not redact or edit http://www.miaxoptions.com/rule- by the Commission.7 The Suspension
personal identifying information from filings/pearl at MIAX PEARL’s principal Order also instituted proceedings to
comment submissions. You should office, and at the Commission’s Public determine whether to approve or
submit only information that you wish Reference Room. disapprove the proposed rule change.8
to make available publicly. All The Healthy Markets Letter argued
II. Self-Regulatory Organization’s that the Exchange did not provide
submissions should refer to File
Description of the Proposed Rule sufficient information in its filing to
Number SR–NYSE–2018–42, and
Change support a finding that the proposal is
should be submitted on or before
October 31, 2018. In its filing with the Commission, the consistent with the Act. Specifically, the
For the Commission, by the Division of Exchange included statements Healthy Markets Letter objected to the
Trading and Markets, pursuant to delegated concerning the purpose of and basis for Exchange’s reliance on the fees of other
authority.17 the proposed rule change and discussed exchanges to demonstrate that its fee
Eduardo A. Aleman, any comments it received on the increases are consistent with the Act. In
Assistant Secretary. proposed rule change. The text of these addition, the Healthy Markets Letter
[FR Doc. 2018–21909 Filed 10–9–18; 8:45 am]
statements may be examined at the argued that the Exchange did not offer
places specified in Item IV below. The any details to support its basis for
BILLING CODE P
Exchange has prepared summaries, set asserting that the proposed fee increases
forth in sections A, B, and C below, of are consistent with the Act. The
SECURITIES AND EXCHANGE the most significant aspects of such Exchange is now re-filing the Proposed
COMMISSION statements. Fee Increases, and is also providing
additional detail regarding the basis for
[Release No. 34–84358; File No. SR– A. Self-Regulatory Organization’s the Proposed Fee Increases. The
PEARL–2018–19 Statement of the Purpose of, and proposed rule change is immediately
Statutory Basis for, the Proposed Rule effective upon filing with the
Self-Regulatory Organizations; MIAX Change Commission pursuant to Section
PEARL, LLC; Notice of Filing of a
1. Purpose 19(b)(3)(A) of the Act.
Proposed Rule Change To Amend the The Exchange currently offers various
Fee Schedule Regarding Connectivity The Exchange proposes to amend the bandwidth alternatives for connectivity
Fees for Members and Non-Members; Fee Schedule regarding connectivity to to the Exchange, consisting of a 1Gb
Suspension of and Order Instituting the Exchange. Specifically, the fiber connection, a 10Gb fiber
Proceedings To Determine Whether To Exchange proposes to amend Sections connection, and a 10Gb ULL fiber
Approve or Disapprove the Proposed 5(a) and (b) of the Fee Schedule to connection. The 10Gb ULL offering uses
Rule Change increase the network connectivity fees an ultra-low latency switch, which
for the 1 Gigabit (‘‘Gb’’) fiber provides faster processing of messages
October 3, 2018.
connection, the 10Gb fiber connection, sent to it in comparison to the switch
Pursuant to Section 19(b)(1) of the and the 10Gb ultra-low latency (‘‘ULL’’)
Securities Exchange Act of 1934 used for the other types of connectivity.
fiber connection, which are charged to The Exchange currently assesses the
(‘‘Act’’),1 and Rule 19b–4 thereunder,2
both Members 3 and non-Members of the following monthly network connectivity
notice is hereby given that on
Exchange for connectivity to the fees to both Members and non-Members
September 18, 2018, MIAX PEARL, LLC
Exchange’s primary/secondary facility. for connectivity to the Exchange’s
(‘‘MIAX PEARL’’ or ‘‘Exchange’’) filed
The Exchange also proposes to increase primary/secondary facility: (a) $1,100
with the Securities and Exchange
the network connectivity fees for the for the 1Gb connection; (b) $5,500 for
Commission (‘‘Commission’’) a
1Gb and 10Gb fiber connections for the 10Gb connection; and (c) $8,500.00
proposed rule change as described in
connectivity to the Exchange’s disaster for the 10Gb ULL connection. The
Items I and II below, which Items have
recovery facility. These proposed fee Exchange also assesses to both Members
been prepared by the Exchange. The
increases are collectively referred to and non-Members a monthly per
Commission is publishing this notice to
herein as the ‘‘Proposed Fee Increases.’’ connection network connectivity fee of
solicit comments on the proposed rule The Exchange initially filed the
change from interested persons and is, $500 for each 1Gb connection to the
Proposed Fee Increases on July 31, 2018, disaster recovery facility and a monthly
pursuant to Section 19(b)(3)(C) of the designating the Proposed Fee Increases
Act, hereby: (i) Temporarily suspending per connection network connectivity fee
effective August 1, 2018.4 The proposed of $2,500 for each 10Gb connection to
the proposed rule change; and (ii) rule change was published for comment
instituting proceedings to determine the disaster recovery facility.
in the Federal Register on August 13, The Exchange’s MIAX Express
whether to approve or disapprove the 2018.5 The Commission received one
proposed rule change. Network Interconnect (‘‘MENI’’) can be
configured to provide Members and
I. Self-Regulatory Organization’s 3 The term ‘‘Member’’ means an individual or
non-Members of the Exchange network
Statement of the Terms of Substance of organization that is registered with the Exchange
connectivity to the trading platforms,
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pursuant to Chapter II of the Exchange’s Rules for
the Proposed Rule Change purposes of trading on the Exchange as an
The Exchange is filing a proposal to ‘‘Electronic Exchange Member’’ or ‘‘Market Maker.’’ 6 See Letter from Tyler Gellasch, Executive
Members are deemed ‘‘members’’ under the Director, The Healthy Markets Association, to Brent
amend the MIAX PEARL Fee Schedule Exchange Act. See Exchange Rule 100. J. Fields, Secretary, Commission, dated September
4 See Securities Exchange Act Release No. 83785 4, 2018 (‘‘Healthy Markets Letter’’).
17 17 CFR 200.30–3(a)(12). (August 7, 2018), 83 FR 40101 (August 13, 7 See Securities Exchange Act Release No. 34–
1 15 U.S.C. 78s(b)(1). 2018)(SR–PEARL–2018–16). 84177 (September 17, 2018).
2 17 CFR 240.19b–4. 5 Id. 8 Id.
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![Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Notices 51025
July 31, 2018, and designated effective national securities exchange under the be ‘‘designed to perfect the operation of
August 1, 2018.22 That proposal, Act. In particular, the Commission will a free and open market and a national
PEARL–2018–16, was published for consider whether the proposed rule market system’’ and ‘‘protect investors
comment in the Federal Register on change satisfies the standards under the and the public interest,’’ and not be
August 13, 2018.23 The Commission Act and the rules thereunder requiring, ‘‘designed to permit unfair
received one comment letter on that among other things, that an exchange’s discrimination between customers,
proposal.24 On September 17, 2018, rules provide for the equitable issuers, brokers, or dealers,’’ 38 and
pursuant to Section 19(b)(3)(C) of the allocation of reasonable fees among • Section 6(b)(8) of the Act, which
Act, the Commission: (1) Temporarily members, issuers, and other persons requires that the rules of a national
suspended the proposed rule change; using its facilities; not permit unfair securities exchange ‘‘not impose any
and (2) instituted proceedings to discrimination between customers, burden on competition not necessary or
determine whether to approve or issuers, brokers or dealers; and do not appropriate in furtherance of the
disapprove the proposal.25 The instant impose any burden on competition not purposes of [the Act].’’ 39
filing proposes identical fees and raises necessary or appropriate in furtherance As noted above, the proposal
similar concerns as to whether they are of the purposes of the Act.32 increases connectivity fees for physical
consistent with the Act.26 Therefore, the Commission finds that connections to the Exchange. The
When exchanges file their proposed it is appropriate in the public interest, Exchange states that this fee increase
rule changes with the Commission, for the protection of investors, and would partially offset costs associated
including fee filings like the Exchange’s otherwise in furtherance of the purposes with providing and maintaining this
present proposal, they are required to of the Act, to temporarily suspend the technology.40 In the instant filing the
provide a statement supporting the proposed rule changes.33 Exchange states that its increased costs
proposal’s basis under the Act and the relate to maintaining and expanding a
IV. Proceedings To Determine Whether team of highly-skilled network
rules and regulations thereunder
To Approve or Disapprove the engineers, increasing fees charged by
applicable to the exchange.27 The
Proposed Rule Change the Exchange’s third-party data center
instructions to Form 19b–4, on which
exchanges file their proposed rule The Commission is instituting operator, and costs associated with
changes, specify that such statement proceedings pursuant to Sections projects and initiatives designed to
‘‘should be sufficiently detailed and 19(b)(3)(C) 34 and 19(b)(2)(B) of the improve overall network performance
specific to support a finding that the Act 35 to determine whether the and stability.41
proposed rule change should be Under the Commission’s Rules of
proposed rule change is consistent with
approved or disapproved. Institution of Practice, the ‘‘burden to demonstrate
[those] requirements.’’ 28
proceedings does not indicate that the that a proposed rule change is
Among other things, exchange
Commission has reached any consistent with the [Act] and the rules
proposed rule changes are subject to
conclusions with respect to any of the and regulations issued thereunder . . .
Section 6 of the Act, including Sections
issues involved. Rather, the Commission is on the [SRO] that proposed the rule
6(b)(4), (5), and (8), which requires the change.’’ 42 The description of a
rules of an exchange to (1) provide for seeks and encourages interested persons
to provide additional comment on the proposed rule change, its purpose and
the equitable allocation of reasonable operation, its effect, and a legal analysis
fees among members, issuers, and other proposed rule change to inform the
Commission’s analysis of whether to of its consistency with applicable
persons using the exchange’s requirements must all be sufficiently
facilities; 29 (2) perfect the mechanism of disapprove the proposed rule change.
Pursuant to Section 19(b)(2)(B) of the detailed and specific to support an
a free and open market and a national affirmative Commission finding,43 and
market system, protect investors and the Act,36 the Commission is providing
notice of the grounds for possible any failure of an SRO to provide this
public interest, and not be designed to information may result in the
permit unfair discrimination between disapproval under consideration:
• Section 6(b)(4) of the Act, which Commission not having a sufficient
customers, issuers, brokers, or basis to make an affirmative finding that
dealers; 30 and (3) not impose any requires that the rules of a national
securities exchange ‘‘provide for the a proposed rule change is consistent
burden on competition not necessary or with the Act and the applicable rules
appropriate in furtherance of the equitable allocation of reasonable dues,
and regulations.44
purposes of the Act.31 fees, and other charges among its
The Commission is instituting
In temporarily suspending the members and issuers and other persons proceedings to allow for additional
Exchange’s fee change, the Commission using its facilities,’’ 37 consideration and comment on the
intends to further consider whether • Section 6(b)(5) of the Act, which issues raised herein, including as to
increasing certain connectivity fees to requires, among other things, that the whether the proposed fees are
the Exchange is consistent with the rules of a national securities exchange consistent with the Act, and
statutory requirements applicable to a specifically, with its requirements that
32 See 15 U.S.C. 78f(b)(4), (5), and (8),
respectively. exchange fees be reasonable and
22 See supra note 4, and accompanying text. 33 For purposes of temporarily suspending the equitably allocated; be designed to
23 See supra note 5, and accompanying text.
24 See supra note 6.
proposed rule change, the Commission has perfect the mechanism of a free and
25 See Securities Exchange Act Release No. 84177,
considered the proposed rule’s impact on open market and the national market
efficiency, competition, and capital formation. See system, protect investors and the public
83 FR 47953 (September 21, 2018). 15 U.S.C. 78c(f).
26 See id.
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34 15 U.S.C. 78s(b)(3)(C). Once the Commission
27 See 17 CFR 240.19b–4 (Item 3 entitled ‘‘Self- 38 15 U.S.C. 78f(b)(5).
temporarily suspends a proposed rule change,
Regulatory Organization’s Statement of the Purpose 39 15 U.S.C. 78f(b)(8).
Section 19(b)(3)(C) of the Act requires that the
of, and Statutory Basis for, the Proposed Rule Commission institute proceedings under Section 40 See supra Section II.A.1.
Change’’). 19(b)(2)(B) to determine whether a proposed rule 41 See id.
28 Id. change should be approved or disapproved. 42 Rule 700(b)(3), Commission Rules of Practice,
29 15 U.S.C. 78f(b)(4). 35 15 U.S.C. 78s(b)(2)(B). 17 CFR 201.700(b)(3).
30 15 U.S.C. 78f(b)(5). 36 15 U.S.C. 78s(b)(2)(B). 43 See id.
31 15 U.S.C. 78f(b)(8). 37 15 U.S.C. 78f(b)(4). 44 See id.
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![51026 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Notices
interest, and not be unfairly amendments, all written statements public meeting on Monday, October 29,
discriminatory; or not impose an with respect to the proposed rule 2018 in Multi-Purpose Room LL–006 at
unnecessary or inappropriate burden on change that are filed with the the Commission’s headquarters, 100 F
competition.45 Commission, and all written Street NE, Washington, DC. The meeting
communications relating to the will begin at 9:30 a.m. (EDT) and will
V. Commission’s Solicitation of
proposed rule change between the be open to the public, except for the
Comments
Commission and any person, other than period during lunch when the
The Commission requests written those that may be withheld from the Committee will meet in an
views, data, and arguments with respect public in accordance with the administrative work session. The public
to the concerns identified above as well provisions of 5 U.S.C. 552, will be portions of the meeting will be webcast
as any other relevant concerns. Such available for website viewing and on the Commission’s website at
comments should be submitted by printing in the Commission’s Public www.sec.gov. Persons needing special
October 31, 2018. Rebuttal comments Reference Room, 100 F Street NE, accommodations to take part because of
should be submitted by November 14, Washington, DC 20549 on official a disability should notify the contact
2018. Although there do not appear to business days between the hours of persons listed below. The public is
be any issues relevant to approval or 10:00 a.m. and 3:00 p.m. Copies of the invited to submit written statements to
disapproval which would be facilitated filing also will be available for the Committee. The meeting will
by an oral presentation of views, data, inspection and copying at the principal include updates and presentations from
and arguments, the Commission will office of the Exchange. All comments the subcommittees.
consider, pursuant to Rule 19b–4, any received will be posted without change. DATES: The public meeting will be held
request for an opportunity to make an Persons submitting comments are on Monday, October 29, 2018. Written
oral presentation.46 cautioned that we do not redact or edit
The Commission asks that statements should be received on or
personal identifying information from before October 24, 2018.
commenters address the sufficiency and comment submissions. You should
merit of the Exchange’s statements in ADDRESSES: The meeting will be held at
submit only information that you wish
support of the proposal, in addition to the Commission’s headquarters, 100 F
to make available publicly. All
any other comments they may wish to Street NE, Washington, DC. Written
submissions should refer to File
submit about the proposed rule change. statements may be submitted by any of
Number SR–PEARL–2018–19 and
Interested persons are invited to submit the following methods:
should be submitted on or before
written data, views, and arguments October 31, 2018. Rebuttal comments Electronic Statements
concerning the proposed rule change, should be submitted by November 14,
including whether the proposed rule • Use the Commission’s internet
2018. submission form (http://www.sec.gov/
change is consistent with the Act.
Comments may be submitted by any of VI. Conclusion rules/other.shtml); or
the following methods: • Send an email message to rule-
It is therefore ordered, pursuant to
comments@sec.gov. Please include File
Electronic Comments Section 19(b)(3)(C) of the Act,47 that File
Number 265–30 on the subject line; or
Number SR–PEARL–2018–19 be and
• Use the Commission’s internet
hereby is, temporarily suspended. In Paper Statements
comment form (http://www.sec.gov/
addition, the Commission is instituting • Send paper statements in triplicate
rules/sro.shtml); or
• Send an email to rule-comments@ proceedings to determine whether the to Brent J. Fields, Federal Advisory
sec.gov. Please include File Number SR– proposed rule change should be Committee Management Officer,
PEARL–2018–19 on the subject line. approved or disapproved. Securities and Exchange Commission,
For the Commission, by the Division of 100 F Street NE, Washington, DC
Paper Comments Trading and Markets, pursuant to delegated 20549–1090.
• Send paper comments in triplicate authority.48
All submissions should refer to File No.
to Brent J. Fields, Secretary, Securities Eduardo A. Aleman,
265–30. This file number should be
and Exchange Commission, 100 F Street Assistant Secretary. included on the subject line if email is
NE, Washington, DC 20549–1090. [FR Doc. 2018–21922 Filed 10–9–18; 8:45 am] used. To help us process and review
All submissions should refer to File BILLING CODE 8011–01–P your statement more efficiently, please
Number SR–PEARL–2018–19. This file use only one method. The Commission
number should be included on the will post all statements on the
subject line if email is used. To help the SECURITIES AND EXCHANGE Commission’s internet website at SEC
Commission process and review your COMMISSION website at (http://www.sec.gov/
comments more efficiently, please use [Release No. 34–84356; File No. 265–30] comments/265-30/265-30.shtml).
only one method. The Commission will Statements also will be available for
post all comments on the Commission’s Fixed Income Market Structure website viewing and printing in the
internet website (http://www.sec.gov/ Advisory Committee Commission’s Public Reference Room,
rules/sro.shtml). Copies of the 100 F Street NE, Room 1580,
submission, all subsequent AGENCY: Securities and Exchange
Commission. Washington, DC 20549, on official
business days between the hours of
45 See 15 U.S.C. 78f(b)(4), (5), and (8). ACTION: Notice of meeting.
10:00 a.m. and 3:00 p.m. All statements
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46 15 U.S.C. 78s(b)(2). Section 19(b)(2) of the Act
grants the Commission flexibility to determine what SUMMARY: The Securities and Exchange received will be posted without change.
type of proceeding—either oral or notice and Commission Fixed Income Market Persons submitting comments are
opportunity for written comments—is appropriate Structure Advisory Committee is cautioned that we do not redact or edit
for consideration of a particular proposal by an personal identifying information from
SRO. See Securities Acts Amendments of 1975,
providing notice that it will hold a
Report of the Senate Committee on Banking,
submissions. You should submit only
Housing and Urban Affairs to Accompany S. 249, 47 15 U.S.C. 78s(b)(3)(C). information that you wish to make
S. Rep. No. 75, 94th Cong., 1st Sess. 30 (1975). 48 17 CFR 200.30–3(a)(57) and (58). available publicly.
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Document Created: 2018-10-10 17:39:19
Document Modified: 2018-10-10 17:39:19
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| FR Citation | 83 FR 51022 |
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