Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Notices 11345 

9 15 U.S.C. 78s(b)(3)(A)(ii). 

10 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

4The 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. 62960 (September 21, 2010), 75 FR 

59310 (September 27, 2010) (SR–NYSE–2010–56). 

The Exchange is an indirect subsidiary of 

Intercontinental Exchange, Inc. (‘‘ICE’’). Through its 

ICE Data Services (‘‘IDS’’) business, ICE operates a 

data center in Mahwah, New Jersey (the ‘‘data 

center’’), from which the Exchange provides colocation services to Users. 

5For 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. 76008 (September 29, 2015), 80 FR 

60190 (October 5, 2015) (SR–NYSE–2015–40). As 

specified in the New York Stock Exchange Price 

List (‘‘Price List’’), 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 NYSE American LLC, NYSE 

Arca, Inc., NYSE Chicago, Inc., and NYSE National, 

Inc. (together, the ‘‘Affiliate SROs’’). Each Affiliate 

SRO has submitted substantially the same proposed 

rule change to propose the changes described 

herein. See SR–NYSEAMER–2021–08, SR– 

NYSEArca–2021–11, SR–NYSECHX–2021–02, and 

SR–NYSENAT–2021–03. 

6See Securities Exchange Act Release No. 90732 

(December 18, 2020), 85 FR 84443 (December 28, 

2020) (SR–NYSE–2020–73, SR–NYSEAMER–2020– 

66, SR–NYSEArca–2020–82, SR–NYSECHX–2020– 

26, and SR–NYSENAT–2020–28) (Notice of Filings 

of Amendment No. 1 and Order Granting Approval 

of Proposed Rule Changes, Each as Modified by 

Amendment No. 1, Amending the Exchanges’ CoLocation Services To Establish Procedures for the 

Allocation of Cabinets to Co-Located Users if 

Cabinet Inventory Falls Below Certain Thresholds). 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

The foregoing rule change has become 

effective pursuant to Section 

19(b)(3)(A)(ii) of the Act.9

At any time within 60 days of the 

filing of the proposed rule change, the 

Commission summarily may 

temporarily suspend such rule change if 

it appears to the Commission that such 

action is: (i) Necessary or appropriate in 

the public interest; (ii) for the protection 

of investors; or (iii) otherwise in 

furtherance of the purposes of the Act. 

If the Commission takes such action, the 

Commission shall institute proceedings 

to determine whether the proposed rule 

should be approved or 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 rule-comments@

sec.gov. Please include File Number SR– 

Phlx–2021–09 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 

Number SR–Phlx–2021–09. 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–Phlx–2021–09 and should 

be submitted on or before March 17, 

2021. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.10

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2021–03724 Filed 2–23–21; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–91154; File No. SR–NYSE– 

2021–12] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Notice of 

Filing of Proposed Rule Change To 

Establish Procedures for the 

Allocation of Power to Its Co-Located 

Users 

February 18, 2021. 

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 February 

4, 2021, New York Stock Exchange LLC 

(‘‘NYSE’’ or the ‘‘Exchange’’) filed with 

the Securities and Exchange 

Commission (the ‘‘Commission’’) the 

proposed rule change as described in 

Items I, II, and III below, which Items 

have been prepared by the selfregulatory organization. The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

change from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to establish 

procedures for the allocation of power 

to its co-located Users. The proposed 

rule change is available on the 

Exchange’s website 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 the 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The Exchange proposes to establish 

procedures for the allocation of power 

to its co-located 4 Users.5

Recently, the Exchange added 

procedures for the allocation of cabinets 

(‘‘Existing Procedures’’) 6 in colocation 

should it become needed, which 

procedures are not currently being used. 


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7See Securities Exchange Act Release No. 71122 

(December 18, 2013), 78 FR 77739 (December 24, 

2013) (SR–NYSE–2013–81). 

8See Id. at 77740. 

9See Securities Exchange Act Release No. 70913 

(November 21, 2013), 78 FR 70987 (November 27, 

2013) (SR–NYSE–2013–74). 

10Securities Exchange Act Release No. 62732 

(August 16, 2010), 75 FR 51512 (August 20, 2010) 

(SR–NYSE–2010–56), at note 5. ‘‘Reserved cabinet 

space’’ is a PNU cabinet. See 78 FR 70987, 70987– 

70988, supra note 9. 

11For example, if there was 365 kW unallocated 

power capacity in co-location and a User requested 

to purchase cabinets and Additional Power that 

would, together, total 55 kW, the purchasing limits 

in General Note 7 would not apply to the User’s 

purchase of the first 15 kW, whether those kW were 

in the form of cabinets or Additional Power. Once 

the power threshold was reached, the combined 

limits would be activated, limiting the User’s 

purchase of additional cabinets and Additional 

Power. In all, the User would be permitted to 

purchase a total of 47 kW out of its original order 

of 55 kW. The User could choose whether the 47 

kW was in the form of cabinets, Additional Power, 

or both. 

12Consistent with the Existing Procedures, the 

Proposed Procedures would provide that, as 

additional power and cabinets became available, 

the Exchange would offer it to the User at the top 

of the combined waitlist. Power may become 

available if, for example, (a) a User vacates a 

dedicated or partial cabinet or relinquishes 

Additional Power or (b) IDS builds additional 

capacity. Cabinets may become available if, for 

example, a User vacates a dedicated or partial 

cabinet. 

In addition, Users have had an 

unprecedented demand for power, 

largely driven by the demands caused 

by volatile market conditions related to 

the COVID–19 pandemic and higher 

than usual trading volumes. The 

Exchange is currently working to 

expand the amount of power and 

number of cabinets available in 

colocation. To complement the 

procedures for allocation of colocation 

cabinets, the Exchange believes it would 

be prudent to have procedures in place 

for the allocation of power, should such 

allocation be necessary. The Exchange 

accordingly proposes to expand the 

Existing Procedures to incorporate 

procedures for the allocation of power 

(‘‘Proposed Procedures’’). 

Background 

Users currently have two options for 

purchasing power. First, a User may 

purchase a new dedicated or partial 

cabinet, which comes with power. The 

User pays an initial fee and a monthly 

fee based on the number of kilowatts 

(‘‘kW’’) contracted for the cabinet. The 

dedicated cabinets have a standard 

power allocation of either 4 kW or 8 kW 

(the ‘‘Standard Cabinet Power’’). Partial 

cabinets are available in increments of 

eight-rack units of space, and each 

eight-rack unit may be allocated 1 or 2 

kW. The Exchange allocates cabinets on 

a first-come/first-serve basis. 

Second, a User may request power 

upgrades to dedicated cabinets in 

addition to the Standard Cabinet 

Power.7 Users may request that such 

additional power (‘‘Additional Power’’) 

be allocated to a cabinet when it is first 

set up or later. A User with a dedicated 

cabinet, for example, may develop its 

infrastructure in a manner that allows it 

to expand the hardware within that 

cabinet by adding Additional Power. 

Because it could add Additional Power 

to its existing cabinet, the User would 

not need an additional cabinet. Adding 

Additional Power may entail 

overhauling wiring, circuitry and 

hardware for the dedicated cabinet so 

that it can handle the increased power.8

The Exchange also offers cabinets that 

do not have power: Cabinets for which 

power is not utilized (‘‘PNU cabinets’’). 

PNU cabinets are reserved cabinet space 

that are not active, and that can be 

converted to a powered, dedicated 

cabinet when the User requests it.9

Although PNU cabinets do not use 

power, when the Exchange establishes a 

PNU cabinet, it allocates unused power 

capacity to it, depending on the User’s 

requirements. The allocated power is 

kept in reserve for the PNU cabinet, and, 

upon the User’s request, the PNU 

cabinet may be powered and used 

promptly. 

If additional power or cabinets are 

needed, the Exchange may use 

established measures to convert PNU 

cabinets: 

[i]f reserved cabinet space becomes needed 

for use, the reserving User will have 30 

business days to formally contract with the 

Exchange for full payment for the reserved 

cabinet space needed or the space will be 

reassigned.10

The Exchange proposes to provide 

additional detail regarding the 

conversion of PNU cabinets in the 

Proposed Procedures. 

Proposed Procedures 

Like the Existing Procedures, the 

Proposed Procedures would be set forth 

in General Notes 7 and 8. General Note 

7 would be amended to provide that, if 

the amount of power or cabinets 

available fell below specified 

thresholds, Users would be subject to 

purchasing limits. General Note 7 would 

also specify when the purchasing limits 

would cease to apply. Consistent with 

the Existing Procedures, the amended 

General Note 7 would provide that if a 

User requests a number of Standard 

Cabinets and/or amount of Additional 

Power that would cause the unallocated 

power capacity to be below the 

specified power and cabinet thresholds, 

the purchasing limits would apply only 

to the portion of the User’s order below 

the relevant threshold.11

The Exchange proposes that, if either 

the Cabinet Threshold or the Power 

Threshold, or if both the Cabinet 

Threshold and Power Threshold are 

reached, all Users with PNU cabinets 

would be required to either convert or 

relinquish them, consistent with the 

applicable provisions. Doing so would 

allow all cabinets and power to be 

available for active use. As a result, no 

User would be subject to limitations on 

its ability to purchase and use cabinets 

or power at the same time that PNU 

cabinets were dormant. 

General Note 8 would be amended to 

provide that, if the amount of power or 

cabinets available fell to zero, Users 

seeking to purchase power or cabinets 

would be put on a waitlist. The waitlist 

provisions for power would be 

substantially similar to those for 

cabinets in the Existing Procedures.12 In 

both General Notes 7 and 8, the 

Proposed Procedures would also state 

how the Existing Procedures regarding 

cabinets and the new procedures 

regarding power would relate to each 

other. In each case, the Proposed 

Procedures would state what the 

threshold amount of power and cabinets 

would be to discontinue the limits, 

which would allow the Exchange to 

return to offering PNU cabinets. Finally, 

in clarifying changes, the existing text of 

General Notes 7 and 8 would be 

amended to change ‘‘Purchasing Limits’’ 

to ‘‘Cabinet Limits’’ and ‘‘waitlist’’ to 

‘‘Cabinet Waitlist’’ and to delete 

redundant text. 

Proposed Amendments to General Note 

7 

The Exchange proposes to amend 

General Note 7 as follows (additions 

italicized, deletions in [brackets]): 

7. Cabinet and Power Purchasing Limits. If 

(i) unallocated cabinet inventory is at or 

below 40 cabinets, whether or not such 

cabinets are configured to be subdivided into 

partial cabinets (‘‘Cabinet Threshold’’), or (ii) 

the unallocated power capacity in colocation is at or below 350 kW (the ‘‘Power 

Threshold’’), the following limits on the 

purchase of new cabinets (‘‘Purchasing 

Limits’’) will apply: 

a. Cabinet Limits. If only the Cabinet 

Threshold is reached, the following measures 

(the ‘‘Cabinet Limits’’) will apply: 

• All Users with PNU cabinets will be 

required to either convert [its]their PNU 

cabinets into dedicated cabinets or relinquish 

[its]their PNU cabinets [before being 

permitted to purchase new cabinets]. The 

Exchange will notify each User with a PNU 

cabinet that the User has 30 business days to 

decide whether to contract to convert the 

PNU cabinet to a dedicated cabinet. If the 

User does not contract to use the PNU 


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Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Notices 11347 

cabinet as a dedicated cabinet within such 

time, the PNU cabinet will be relinquished. 

• [Once the Cabinet Threshold is reached, 

t]The Exchange will limit each User’s 

purchase of new cabinets (dedicated and 

partial) to a maximum of four dedicated 

cabinets. The maximum may be comprised of 

a mix of dedicated and partial cabinets, with 

two partial cabinets counting as one 

dedicated cabinet. 

• If a User requests, in writing, a number 

of cabinets that, if provided, would cause the 

available cabinet inventory to be below 40 

cabinets, the [Purchasing]Cabinet Limits will 

only apply to the portion of the User’s order 

below the Cabinet Threshold. 

• A User will have to wait 30 days from 

the date of its signed order form before 

purchasing new cabinets again. 

• If the Cabinet Threshold is reached, the 

Exchange will cease offering or providing 

new PNU cabinets to all Users and Users will 

not be permitted to convert a currently used 

dedicated cabinet to a PNU cabinet. 

• When unallocated cabinet inventory is 

more than 40 cabinets, the Exchange will 

discontinue the [Purchasing]Cabinet Limits. 

b. Combined Limits. If only the Power 

Threshold is reached or both the Cabinet 

Threshold and the Power Threshold are 

reached, the following measures (the 

‘‘Combined Limits’’) will apply: 

• All Users with PNU cabinets will be 

required to either convert their PNU cabinets 

into dedicated cabinets or relinquish their 

PNU cabinets. The Exchange will notify each 

User with a PNU cabinet that the User has 

30 business days to decide whether to 

contract to convert the PNU cabinet to a 

dedicated cabinet. If the User does not 

contract to use the PNU cabinet as a 

dedicated cabinet within such time, the PNU 

cabinet will be relinquished. 

• A User may purchase either or both of 

the following, so long as the combined power 

usage of such purchases is no more than a 

maximum of 32 kW: 

a. New cabinets (dedicated and partial), 

subject to a maximum of four dedicated 

cabinets with standard power allocations of 

4 kW or 8 kW (‘‘Standard Cabinets’’). The 

purchase may be comprised of a mix of 

dedicated and partial cabinets, with two 

partial cabinets counting as one dedicated 

cabinet. 

b. Additional power for new or existing 

cabinets. 

• If a User requests, in writing, a number 

of Standard Cabinets and/or an amount of 

additional power that, if provided, would 

cause the unallocated power capacity to be 

below the Power Threshold or Cabinet 

Threshold, the Combined Limits would apply 

only to the portion of the User’s order below 

the relevant threshold. 

• A User will have to wait 30 days from the 

date of its signed order form before 

purchasing new Standard Cabinets or 

additional power again. 

• If the Power Threshold or Cabinet 

Threshold is reached, the Exchange will 

cease offering or providing new PNU cabinets 

to all Users and Users will not be permitted 

to convert a currently used dedicated cabinet 

to a PNU cabinet. 

• When unallocated power capacity is 

above the Power Threshold, the Exchange 

will discontinue the Combined Limits. If at 

that time the unallocated cabinet inventory is 

40 or fewer cabinets, the Cabinet Limits 

would enter into effect. 

c. Applicability. If the Cabinet Threshold is 

reached before the Power Threshold, the 

Cabinet Limits will be in effect until the 

Power Threshold is reached, after which the 

Combined Limits will apply. 

Proposed Amendments to General Note 

8 

The Exchange proposes to amend 

General Note 8 as follows (additions 

italicized, deletions in [brackets]): 

8. Cabinet and Combined Waitlists. 

a. Cabinet Waitlist. Unless a Combined 

Waitlist is in effect, t[T]he Exchange will 

create a cabinet waitlist (‘‘Cabinet Waitlist’’) 

if the available cabinet inventory is zero, or 

a User requests, in writing, a number of 

cabinets that, if provided, would cause the 

available inventory to be zero. The Exchange 

will place Users seeking cabinets on a 

Cabinet [w]Waitlist, as follows: 

• Users with PNU cabinets will not be 

required to either convert their PNU cabinets 

into dedicated cabinets or relinquish their 

PNU cabinets in accordance with the 

measures set forth in General Note 7(a), 

above. [placed on the waitlist if the User 

could meet its new cabinet request by 

converting its PNU cabinets to dedicated 

cabinets. A User will only be placed on the 

waitlist for the portion of its new cabinet 

request that exceeds its existing PNU 

cabinets, subject to the Purchasing 

Limitations.] 

• A User will be placed on the Cabinet 

[w]Waitlist based on the date its signed order 

is received. A User may only have one order 

for new cabinets on the Cabinet [w]Waitlist 

at a time, and the order is subject to the 

[Purchasing]Cabinet Limits. If a User changes 

the size of its order while it is on the Cabinet 

Waitlist, it will maintain its place on the 

Cabinet Waitlist, and will remain subject to 

the Cabinet Limits. 

• As cabinets become available, the 

Exchange will offer them to the User at the 

top of the Cabinet [w]Waitlist. If the User’s 

order is completed, it will be removed from 

the Cabinet [w]Waitlist. If the User’s order is 

not completed, it will remain at the top of the 

Cabinet [w]Waitlist. 

• A User will be removed from the Cabinet 

[w]Waitlist (a) at the User’s request or (b) if 

the User turns down an offer of a cabinet of 

the same size it requested in its order. If the 

Exchange offers the User a cabinet of a 

different size than the User requested in its 

order, the User may turn down the offer and 

remain at the top of the Cabinet [w]Waitlist 

until its order is completed. 

• A User that is removed from the Cabinet 

[w]Waitlist but subsequently submits a new 

written order for cabinets will be added back 

to the bottom of the Cabinet [w]Waitlist. 

• When unallocated cabinet inventory is 

more than 10 cabinets, the Exchange will 

cease use of the Cabinet [w]Waitlist. 

b. Combined Waitlist. The Exchange would 

create a power and cabinet waitlist 

(‘‘Combined Waitlist’’) if the unallocated 

power capacity is zero, or if a User requests, 

in writing, an amount of power (whether 

power allocated to a Standard Cabinet or 

additional power) that, if provided, would 

cause the unallocated power capacity to be 

below zero. The Exchange would place Users 

seeking cabinets or power on the Combined 

Waitlist, as follows: 

• All Users with PNU cabinets will be 

required to either convert their PNU cabinets 

into dedicated cabinets or relinquish their 

PNU cabinets in accordance with the 

measures set forth in General Note 7(b), 

above. 

• If a Cabinet Waitlist exists when the 

requirements to create a Combined Waitlist 

are met, the Cabinet Waitlist will 

automatically convert to the Combined 

Waitlist. If a Combined Waitlist exists when 

the requirements to create a Cabinet Waitlist 

are met, no new waitlist will be created, and 

the Combined Waitlist will continue in effect. 

• A User will be placed on the Combined 

Waitlist based on the date its signed order for 

cabinets and/or additional power is received. 

A User may only have one order for new 

cabinets and/or additional power on the 

Combined Waitlist at a time, and the order 

would be subject to the Combined Limits. If 

a User changes the size of its order while it 

is on the Combined Waitlist, it will maintain 

its place on the Combined Waitlist, and will 

remain subject to the Combined Limits. 

• As additional power and/or cabinets 

become available, the Exchange will offer 

them to the User at the top of the Combined 

Waitlist. If the User’s order is completed, the 

order will be removed from the Combined 

Waitlist. If the User’s order is not completed, 

it will remain at the top of the Combined 

Waitlist. 

• A User will be removed from the 

Combined Waitlist (a) at the User’s request; 

(b) if the User turns down an offer that is the 

same as its order (e.g. the offer includes 

cabinets of the same size and/or the amount 

of additional power that the User requested 

in its order). If the Exchange offers the User 

an offer that is different than its order, the 

User may turn down the offer and remain at 

the top of the Combined Waitlist until its 

order is completed. 

• A User that is removed from the 

Combined Waitlist but subsequently submits 

a new written order for cabinets and/or 

additional power will be added back to the 

bottom of the waitlist. 

• If the Combined Waitlist is in effect, 

when unallocated power capacity in colocation is at 100 kW, the Exchange will 

cease use of the waitlist. If at that time the 

unallocated cabinet inventory is 10 or fewer 

cabinets, the Cabinet Limits would enter into 

effect. 

The proposed change would apply the 

same way to all types and sizes of 

market participants. As is currently the 

case, the purchase of any colocation 

service is completely voluntary and the 

Price List is applied uniformly to all 

Users. 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 


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11348 Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Notices 

13 15 U.S.C. 78f(b). 

14 15 U.S.C. 78f(b)(4) and (5). 

15See Securities Exchange Act Release No. 62397 

(June 28, 2010), 75 FR 38860 (July 6, 2010) (SR– 

NASDAQ–2010–019). 

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,13 in general, and 

furthers the objectives of Sections 

6(b)(4) and (5) of the Act,14 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. In addition, 

it is designed 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. 

The Proposed Rule Change Is 

Reasonable and Equitable 

The Exchange believes that the 

proposed rule change is reasonable and 

equitable for the following reasons. 

The Exchange believes that User 

demand for power will continue. The 

Exchange is currently working to 

expand the amount of power and 

number of cabinets available in 

colocation. Nevertheless, the Exchange 

believes that it would be reasonable for 

it to put in place the Proposed 

Procedures to establish the allocation of 

power and cabinets on an equitable 

basis, consistent with the Established 

Procedures. The Proposed Procedures 

would establish a rational, objective 

procedure that would be applied 

uniformly by the Exchange to all Users 

that requested new cabinets or 

Additional Power. 

The Exchange believes that 

integrating the procedures for the 

allocation of power with the Existing 

Procedures would be reasonable, 

because cabinets are provided with 

power. Having both power and cabinets 

covered by the Proposed Procedures 

would ensure that the procedures for all 

relevant services are consistent and 

coordinated. Having the Proposed 

Procedures state what would occur if 

the Cabinet Threshold and Power 

Threshold are reached at different times, 

and how the Cabinet Waitlist and 

Combined Waitlist interrelate, is 

reasonable for the same reason. 

The Exchange believes that following 

the Existing Procedures’ two-tier 

structure of establishing, first, a 

purchasing limitation on order size, and 

second, a waitlist, would be a 

reasonable method to respond to 

increasing demand for power and 

cabinets in the future. The Exchange 

notes that the Existing Procedures are 

consistent with the Nasdaq procedures 

for allocating cabinets if its cabinet 

inventory shrinks to zero.15 The 

Exchange believes that it is reasonable 

to amend the Existing Procedures to 

clarify what would occur if a User 

changes the size of its order while it is 

on the Cabinet Waitlist. 

The Exchange believes that the 

proposed Power Threshold is reasonable 

and equitable. Based on experience, the 

Exchange believes that the Power 

Threshold of 350 kW is reasonable and 

appropriate because it is sufficiently 

low that it would not be triggered 

repeatedly, yet it offers a reasonable 

buffer during which the Combined 

Limits would apply before the 

Combined Waitlist would become 

effective. 

The Exchange believes that the 

proposed Combined Limits are 

reasonable and equitable. Based on its 

experience with co-location and 

purchasing trends over the last few 

years, the Exchange believes that in 

most cases the amount of power that a 

User would be allowed to buy under the 

proposed Combined Limits, whether in 

the form of cabinets or Additional 

Power, would be sufficient for a User’s 

needs while leaving a margin for 

potential growth. 

Further, the Exchange believes that, 

by establishing a waitlist on the basis of 

the date it receives signed orders, 

limiting the size and number of orders 

a User may have on the waitlist at any 

one time, stating what happens if a User 

changes its order while on the waitlist, 

and removing a User from the waitlist 

if it turns down an offer that is the same 

as what it requested, the Combined 

Waitlist is largely consistent with the 

Existing Procedures and reasonably 

designed to prevent Users from utilizing 

the waitlist as a method to obtain a 

greater portion of the power and 

cabinets available, thereby facilitating a 

more equitable distribution. Similarly, 

the Exchange believes that by requiring 

a 30-day delay before a User subject to 

the Combined Limits could purchase 

Standard Cabinets or Additional Power 

again, the Proposed Procedure is 

reasonably designed to prevent a User 

from obtaining a greater portion of the 

power and cabinets available. 

The Exchange believes that the 

proposed change is reasonable and 

equitable because the Exchange would 

only place limits on Users’ ability to 

purchase Standard Cabinets or 

Additional Power if either or both the 

Power Threshold and Cabinet Threshold 

are reached. Similarly, the Exchange 

believes that the proposed change is 

reasonable and equitable because the 

Combined Waitlist would only be 

created if unallocated power capacity in 

co-location is zero, or if a User requests, 

in writing, an amount of power 

(whether power allocated to a Standard 

Cabinet or Additional Power) that, if 

provided, would cause the unallocated 

power capacity to be below zero, and 

because there would be an established 

threshold for cessation of the Combined 

Waitlist. 

The Exchange believes that it would 

be reasonable and equitable to require 

Users with PNU cabinets to either 

convert their PNU cabinets into 

dedicated cabinets or relinquish them if 

either or both the Cabinet Threshold 

and Power Threshold are reached. 

Doing so would make the power 

reserved for PNU cabinets and the 

cabinets themselves available to meet 

User demand for power and cabinets. As 

a result, no User would be subject to 

limitations on its ability to purchase and 

use power or cabinets at the same time 

that PNU cabinets were dormant. The 

Exchange believes that the measure is 

therefore reasonably designed to prevent 

a User from reserving, but not using, 

power or cabinets at a time when other 

Users are subject to limitations, 

facilitating a more equitable 

distribution. 

The Proposed Procedures would 

provide additional specificity to the 

existing PNU cabinet provision 

permitting conversion of PNU cabinets, 

by stating what the relevant thresholds 

would be, when the Exchange would 

require Users to decide whether to 

convert their PNU cabinets, and when 

PNU cabinets would be offered again, 

thereby increasing transparency and 

adding clarity. 

The Exchange believes that the 

proposed change would be a reasonable 

method for the Exchange to 

accommodate demand for power and 

cabinets on an equitable basis, while 

allowing all Users that currently have a 

PNU cabinet to have a choice between 

converting their PNU cabinet to a 

dedicated cabinet or relinquishing it. 

The Exchange notes that Nasdaq’s colocation customers that have a ‘‘Cabinet 


khammond on DSKJM1Z7X2PROD with NOTICES
Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Notices 11349 

16Co-location customers may either contract with 

Nasdaq for full payment or have the cabinet 

reassigned. Securities Exchange Act Release No. 

62354 (June 22, 2010), 75 FR 38860 (July 6, 2010) 

(SR–Nasdaq–2010–019). 17 15 U.S.C. 78f(b)(8). 

Proximity Option’’ have a similar choice 

if Nasdaq determines that the reserved 

data center space is needed for use.16

Finally, the Exchange believes that it 

would be fair and equitable to require 

all Users with PNU cabinets to be 

subject to the same measures if the 

Cabinet Threshold or Power Threshold 

were met. 

The Proposed Rule Change Would 

Protect Investors and the Public Interest 

The Exchange believes that the 

proposed rule change would perfect the 

mechanisms of a free and open market 

and a national market system and, in 

general, protect investors and the public 

interest for the following reasons. 

The Exchange believes that User 

demand for cabinets and power will 

continue. In this context, the proposed 

rule change would allow the Exchange 

to protect investors and the public 

interest, first, by setting limits on Users’ 

ability to purchase power, and second, 

by using a waitlist to allocate any 

unallocated cabinets and power on a 

first come-first served rolling basis. 

Based on experience, the Exchange 

believes that the Power Threshold is 

sufficiently low that it would not be 

triggered repeatedly, which would 

protect investors and the public interest. 

Similarly, based on its experience with 

co-location and purchasing trends over 

the last few years, the Exchange believes 

that in most cases the amount of power 

that a User would be allowed to buy 

under the proposed Combined Limits, 

whether in the form of cabinets or 

Additional Power, would be sufficient 

for a User’s needs while leaving a 

margin for potential growth, which 

would protect investors and the public 

interest. 

In addition, the Proposed Procedures 

would protect investors and the public 

interest in that they are designed to 

prevent Users from utilizing the 

Combined Limit and waitlist procedures 

to obtain a greater portion of the power 

and cabinets available, thereby 

facilitating a more equitable 

distribution. 

The Exchange believes that it would 

protect investors and the public interest 

to require Users with PNU cabinets to 

either convert their PNU cabinets into 

dedicated cabinets or relinquish them if 

either or both the Cabinet Threshold 

and Power Threshold are reached. 

Doing so would mean that no User 

would be subject to limitations on its 

ability to purchase and use power or 

cabinets at the same time that PNU 

cabinets were dormant. The Exchange 

believes that the measure is therefore 

reasonably designed to prevent a User 

from reserving but not using power or 

cabinets at a time when other Users are 

subject to limitations. 

The proposed rule change would 

protect investors and the public interest 

because the proposed revised General 

Notes would articulate rational, 

objective procedures consistent with the 

Existing Procedures and PNU cabinet 

provisions, and would serve to reduce 

any potential for confusion on how 

cabinets and power would be allocated 

if a shortage in one or the other were to 

arise in the future, and would thereby 

make the Price List more transparent 

and reduce any potential ambiguity. 

The Proposed Change Is Not Unfairly 

Discriminatory 

The Exchange believes that the 

proposed change is not unfairly 

discriminatory for the following 

reasons. 

The proposed change would apply 

equally to all types and sizes of market 

participants. If the Proposed Procedures 

were in place, all Users would be able 

to identify the permitted cabinet and 

power options and the procedures that 

would apply to them in the event that 

unallocated cabinet or power supply 

runs low in the future. All Users with 

PNU cabinets would be subject to the 

same measures if the Cabinet Threshold 

or Power Threshold were met. The 

Proposed Procedures would assist the 

Exchange in accommodating demand 

for co-location services, and power and 

cabinets in particular, on an equitable 

basis. 

For the reasons above, the proposed 

changes do 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. 

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,17 the Exchange believes that the 

proposed rule change will not impose 

any burden on competition that is not 

necessary or appropriate in furtherance 

of the purposes of the Act. 

Intramarket Competition 

The Exchange does not believe that 

the proposed change would place any 

burden on intramarket competition that 

is not necessary or appropriate. The 

proposed change would not apply 

differently to distinct types or sizes of 

market participants. Rather, it would 

apply to all Users equally. 

The Exchange believes that, if 

triggered, the imposition of the 

Combined Limits or Combined Waitlist 

would not impose a burden on a User’s 

ability to compete that is not necessary 

or appropriate. The Exchange believes 

that User demand for power will 

continue in the future, and the 

Exchange is presently working to 

expand the amount of power and 

number of cabinets available in 

colocation. In this context, the Exchange 

believes that it would be reasonable for 

it to put in place the Proposed 

Procedures to expand on the Existing 

Procedures and establish a method for 

allocating not just cabinets but also 

power on an equitable basis. 

The Exchange would only follow the 

Proposed Procedures and place limits 

on Users’ ability to purchase new power 

and cabinets if either or both the 

proposed Power Threshold and existing 

Cabinet Threshold were met, as 

specified in the proposed General Notes. 

Similarly, the Exchange would only 

create the Proposed Waitlist if the 

unallocated power capacity is zero, or if 

a User requests, in writing, an amount 

of power that, if provided, would cause 

the unallocated power capacity to be 

below zero. Based on its experience 

with co-location and purchasing trends 

over the last few years, the Exchange 

believes that in most cases the amount 

of power that a User would be allowed 

to buy under the proposed Combined 

Limits, whether in the form of cabinets 

or Additional Power, would be 

sufficient for a User’s needs while 

leaving a margin for potential growth. 

The Exchange believes that the 

proposed revised General Notes would 

articulate rational, objective procedures 

consistent with the Existing Procedures 

and PNU cabinet provisions, and would 

serve to reduce any potential for 

confusion on how power and cabinets 

would be allocated if a shortage in one 

or the other were to arise in the future, 

and would thereby make the Price List 

more transparent and reduce any 

potential ambiguity. 

The Exchange believes that it would 

not impose a burden on a User’s ability 

to compete that is not necessary or 

appropriate to require Users with PNU 

cabinets to either convert or relinquish 

their PNU cabinets if either or both the 


khammond on DSKJM1Z7X2PROD with NOTICES
11350 Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Notices 

18See Securities Exchange Act Release No. 51808 

(June 9, 2005), 70 FR 37496, 37499 (June 29, 2005). 

19 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

Cabinet Threshold and Power Threshold 

are reached. Doing so would make the 

power reserved for PNU cabinets and 

the cabinets themselves available to 

meet User demand for power and 

cabinets. As a result, no User would be 

subject to limitations on its ability to 

purchase and use power or cabinets at 

the same time that PNU cabinets were 

dormant. A User does not require a PNU 

cabinet to trade on the Exchange, and 

whether or not a User has a PNU cabinet 

has no effect on such User’s orders 

going to, or trade data coming from, the 

Exchange, or the User’s ability to utilize 

other co-location services. Rather, the 

proposed change would assist the 

Exchange in accommodating demand 

for co-location services on an equitable 

basis. 

Use of any co-location service is 

completely voluntary, and each market 

participant is able to determine whether 

to use co-location services based on the 

requirements of its business operations. 

Intermarket Competition 

The Exchange does not believe that 

the proposed change would impose any 

burden on intermarket competition that 

is not necessary or appropriate. 

The Exchange operates in a highly 

competitive market in which exchanges 

and other vendors (i.e., Hosting Users) 

offer co-location services as a means to 

facilitate the trading and other market 

activities of those market participants 

who believe that co-location enhances 

the efficiency of their operations. 

Accordingly, fees charged for colocation services are constrained by the 

active competition for the order flow of, 

and other business from, such market 

participants. 

The Commission has repeatedly 

expressed its preference for competition 

over regulatory intervention in 

determining prices, products, and 

services in the securities markets. 

Specifically, in Regulation NMS, the 

Commission highlighted the importance 

of market forces in determining prices 

and SRO revenues and, also, recognized 

that current regulation of the market 

system ‘‘has been remarkably successful 

in promoting market competition in its 

broader forms that are most important to 

investors and listed companies.’’ 18

The proposed rule change would 

protect investors and the public interest 

because the proposed revised General 

Notes would articulate rational, 

objective procedures consistent with the 

Existing Procedures and PNU cabinet 

provisions, and would serve to reduce 

any potential for confusion on how 

cabinets and power would be allocated 

if a shortage in one or the other were to 

arise in the future, and would thereby 

make the Price List more transparent 

and reduce any potential ambiguity. 

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 up to 90 days (i) as the 

Commission may designate 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 

the 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 rule-comments@

sec.gov. Please include File Number SR– 

NYSE–2021–12 on the subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Securities and Exchange Commission, 

100 F Street NE, Washington, DC 

20549–1090. 

All submissions should refer to File 

Number SR–NYSE–2021–12. 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–NYSE–2021–12 and should 

be submitted on or before March 17, 

2021. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.19

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2021–03720 Filed 2–23–21; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–91155; File No. SR– 

NYSEAMER–2021–08] 

Self-Regulatory Organizations; NYSE 

American LLC; Notice of Filing of 

Proposed Rule Change To Establish 

Procedures for the Allocation of Power 

to Its Co-Located Users 

February 18, 2021. 

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 February 

4, 2021, NYSE American LLC (‘‘NYSE 

American’’ or the ‘‘Exchange’’) filed 

with the Securities and Exchange 

Commission (the ‘‘Commission’’) the 

proposed rule change as described in 

Items I, II, and III below, which Items 

have been prepared by the selfregulatory organization. The 

Commission is publishing this notice to 


khammond on DSKJM1Z7X2PROD with NOTICES