[Federal Register Volume 76, Number 211 (Tuesday, November 1, 2011)]
[Notices]
[Pages 67522-67523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28202]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-65625; File No. SR-NYSEARCA-2011-74]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
of Proposed Rule Change Expanding the Scope of Potential ``Users'' of
Its Co-Location Services To Include Any Market Participant That
Requests To Receive Co-Location Services Directly From the Exchange and
Amending Its Fee Schedule To Establish a Fee for Users That Host Their
Customers at the Exchange's Data Center
October 26, 2011.
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 October 14, 2011, 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 expand the scope of potential ``Users'' of
its co-location services to include any market participant that
requests to receive co-location services directly from the Exchange. In
addition, the Exchange proposes to amend its Fee Schedule to establish
a fee for Users that host their customers at the Exchange's data
center. The text of the proposed rule change is available at the
Exchange, the Commission's Public Reference Room, and http://www.nyse.com.
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 operates a data center in Mahwah, New Jersey from
which it provides co-location services to Users.\4\ For purposes of its
co-location services, the term ``User'' currently includes any ETP
Holder or Sponsored Participant who is authorized to obtain access to
the NYSE Arca Marketplace pursuant to NYSE Arca Equities Rule 7.29 (see
NYSE Arca Equities Rule 1.1(yy)).\5\ The Exchange proposes to expand
the scope of potential Users of its co-location services to include any
market participant that requests to receive co-location services
directly from the Exchange.\6\ Under the proposed rule change, Users
could therefore include ETP Holders, Sponsored Participants, non-ETP
Holder broker-dealers and vendors. The Exchange anticipates that the
potential additional Users would provide, for example, hosting, service
bureau, technical support, risk management, order routing and market
data delivery services to their customers while the User is co-located
in the Exchange's data center.\7\ As is the case with all Exchange co-
location arrangements, neither a User, nor any of its customers, would
be permitted to submit orders directly to the Exchange unless such User
or customer is an ETP Holder or a Sponsored Participant. All existing
co-location terms, conditions, facilities, services, and applicable
fees would apply to these potential new Users.
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\4\ See Securities Exchange Act Release No. 63275 (November 8,
2010), 75 FR 70048 (November 16, 2010) (SR-NYSEArca-2010-100).
\5\ Id. at note 7.
\6\ As is the case today, prospective Users must agree to, and
be capable of satisfying, any applicable co-location fees,
requirements, terms and conditions established from time to time by
the Exchange.
\7\ The Exchange anticipates that a User's customer(s) could
include, under certain circumstances, other Users of the Exchange's
co-location services.
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The Exchange also proposes to amend its Fee Schedule to establish a
fee applicable to Users that provide hosting services to their
customers (``Hosted Users'') at the Exchange's data center. ``Hosting''
would be a service offered by a User to a Hosted User and could
include, for example, a User supporting its Hosted User's technology,
whether hardware or software, through the User's co-location space.
Specifically, the Exchange proposes to charge each User a fee of
$500.00 per month for each Hosted User that the User hosts in the
Exchange's data center. Users would independently set fees for their
Hosted Users and the Exchange would not receive a share of any such
fees.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Securities Exchange Act of 1934 (the
``Act''),\8\ in general, and furthers the objectives of Section 6(b)(4)
\9\ and 6(b)(5) of the Act,\10\ in particular, because it provides for
the equitable allocation of reasonable dues, fees, and other charges
among its members and issuers and other persons using its facilities
and is designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, to remove
impediments to and perfect the mechanism of a free and open market
[[Page 67523]]
and a national market system, and, in general, to protect investors and
the public interest.
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\8\ 15 U.S.C. 78f(b).
\9\ 15 U.S.C. 78f(b)(4).
\10\ 15 U.S.C. 78f(b)(5).
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The Exchange's proposal to expand the scope of potential Users of
its co-location services to include any market participant that
requests to receive co-location services directly from the Exchange
would increase access to the Exchange's co-location facilities by
allowing additional types of Users to use those facilities. In this
regard, co-location services would be offered by the Exchange to these
additional types of Users, as is the case today for existing Users, 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.
Additionally, the proposed hosting fee would be applied uniformly
for comparable services provided by the Exchange and would not unfairly
discriminate between similarly situated Users of co-location services.
In this regard, the proposed hosting capability and related fee would
be applicable to all interested Users that provide hosting services. In
addition, the Exchange believes that the proposed hosting fee is
reasonable in that it is designed to defray applicable expenses
incurred or resources expended by the Exchange related to such
services, including, but not limited to, configuration of Users'
connections to their Hosted User customers and subsequent monitoring
thereof by Exchange staff.
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.
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 self-regulatory organization consents, the Commission
will:
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 Number SR-NYSEARCA-2011-74 on the subject line.
Paper Comments
Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEARCA-2011-74. 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 on
official business days between the hours of 10 a.m. and 3 p.m. Copies
of such filing also will be available for inspection and copying at the
principal office of NYSE. 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 Number
SR-NYSEARCA-2011-74, and should be submitted on or before November 22,
2011.
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\11\ 17 CFR 200.30-3(a)(12).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2011-28202 Filed 10-31-11; 8:45 am]
BILLING CODE 8011-01-P