58364 Federal Register / Vol. 88, No. 164 / Friday, August 25, 2023 / Notices 

118See letter from Brian Sopinsky, General 

Counsel, Susquehanna International Group, LLP 

(‘‘SIG’’), to Vanessa Countryman, Secretary, 

Commission, dated February 7, 2023, and letters 

from Gerald D. O’Connell, SIG, to Vanessa 

Countryman, Secretary, Commission, dated March 

21, 2023, May 24, 2023 and July 24, 2023. 

119 15 U.S.C. 78s(b)(3)(A)(ii). 

120 17 CFR 240.19b–4(f)(2). 

121 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. 

important policy goal of improving 

disclosures and requiring exchanges to 

justify that their market data and access 

fee proposals are fair and reasonable, it 

has also negatively impacted non-legacy 

exchanges in particular in their efforts 

to adopt or increase fees that would 

enable them to more fairly compete with 

legacy exchanges, despite providing 

enhanced disclosures and rationale 

under both competitive and cost basis 

approaches provided for by the Revised 

Review Process and Staff Guidance to 

support their proposed fee changes. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

The Exchange received one comment 

letter on the Initial Proposal, one 

comment letter on the Second Proposal, 

one comment letter on the Third 

Proposal, and one comment letter on the 

Fourth Proposal, all from the same 

commenter.118 In their letters, the sole 

commenter seeks to incorporate 

comments submitted on previous 

Exchange proposals to which the 

Exchange has previously responded. To 

the extent the sole commenter has 

attempted to raise new issues in its 

letters, the Exchange believes those 

issues are not germane to this proposal 

in particular, but rather raise larger 

issues with the current environment 

surrounding exchange non-transaction 

fee proposals that should be addressed 

by the Commission through rule 

making, or Congress, more holistically 

and not through an individual exchange 

fee filings. Among other things, the 

commenter is requesting additional data 

and information that is both opaque and 

a moving target and would constitute a 

level of disclosure materially over and 

above that provided by any competitor 

exchanges. 

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,119 and Rule 

19b–4(f)(2) 120 thereunder. 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 

necessary or appropriate in the public 

interest, for the protection of investors, 

or 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 (https://www.sec.gov/ 

rules/sro.shtml); or 

• Send an email to rule-comments@

sec.gov. Please include file number SR– 

EMERALD–2023–19 on the subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Secretary, Securities and Exchange 

Commission, 100 F Street NE, 

Washington, DC 20549–1090. 

All submissions should refer to file 

number SR–EMERALD–2023–19. 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 (https://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 

a.m. and 3 p.m. Copies of the filing also 

will be available for inspection and 

copying at the principal office of the 

Exchange. Do not include personal 

identifiable information in submissions; 

you should submit only information 

that you wish to make available 

publicly. We may redact in part or 

withhold entirely from publication 

submitted material that is obscene or 

subject to copyright protection. All 

submissions should refer to file number 

SR–EMERALD–2023–19 and should be 

submitted on or before September 15, 

2023. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.121

Sherry R. Haywood, 

Assistant Secretary. 

[FR Doc. 2023–18300 Filed 8–24–23; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–98171; File No. SR– 

NYSENAT–2023–18] 

Self-Regulatory Organizations; NYSE 

National, Inc.; Notice of Filing of 

Proposed Change To Amend the 

Connectivity Fee Schedule Regarding 

Power Allocation 

August 21, 2023. 

Pursuant to section 19(b)(1) 1 of the 

Securities Exchange Act of 1934 

(‘‘Act’’) 2 and Rule 19b–4 thereunder,3

notice is hereby given that, on August 

17, 2023, NYSE National, Inc. (‘‘NYSE 

National’’ 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 amend the 

Connectivity Fee Schedule to provide 

an alternative procedure by which the 

Exchange can allocate power in the 

Mahwah Data Center via depositguaranteed orders from Users made 

within a 90-day ‘‘Ordering Window.’’ 

The proposed 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, 


ddrumheller on DSK120RN23PROD with NOTICES1
Federal Register / Vol. 88, No. 164 / Friday, August 25, 2023 / Notices 58365 

4Through its Fixed Income and Data Services 

(‘‘FIDS’’) business, Intercontinental Exchange, Inc. 

(‘‘ICE’’) operates the MDC. The Exchange and its 

affiliates NYSE American LLC, NYSE Arca, Inc., 

NYSE Chicago, Inc., and NYSE National, Inc. (the 

‘‘Affiliate SROs’’) are indirect subsidiaries of ICE. 

Each of the Exchange’s Affiliate SROs has 

submitted substantially the same proposed rule 

change to propose the changes described herein. 

See SR–NYSE–2023–29, SR–NYSEAMER–2023–39, 

SR–NYSEARCA–2023–53, and SR–NYSECHX– 

2023–16. 

5For purposes of the Exchange’s colocation 

services, a ‘‘User’’ means any market participant 

that requests to receive colocation services directly 

from the Exchange. See Securities Exchange Act 

Release No. 83351 (May 31, 2018), 83 FR 26314 

(June 6, 2018) (SR–NYSENAT–2018–07). As 

specified in the Connectivity Fee Schedule, a User 

that incurs colocation fees for a particular 

colocation service pursuant thereto would not be 

subject to colocation fees for the same colocation 

service charged by the Affiliate SROs. 

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, SR–NYSENAT–2020–28) (establishing the 

procedures in current Colocation Note 6(a) and 

7(a)). 

7See Securities Exchange Act Release No. 91515 

(April 8, 2021), 86 FR 19674 (April 14, 2021) (SR– 

NYSE–2021–12, SR–NYSEAMER–2021–08, SR– 

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

NYSENAT–2021–03) (establishing the procedures 

in current Colocation Note 6(b) and 7(b)). 

8An ‘‘Affiliate’’ of a User is defined as ‘‘any other 

User or Hosted Customer that is under 50% or 

greater common ownership or control of the first 

User.’’ Connectivity Fee Schedule, at 1. 

9Such demand for increased power is not unique 

to the MDC. Customers have told the Exchange that 

available power is in short supply at several other 

data centers as well, including the Equinex-owned 

data center in Secaucus, New Jersey, the Equinexowned data center in Carteret, New Jersey, and the 

Digital Realty-owned data center at Cermak, Illinois. 

Since none of those data centers is operated by an 

exchange or regulated by the Commission, the 

operators of those data centers are free to ask 

customers to indicate their interest in future buildouts by submitting orders guaranteed by deposits. 

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 amend the 

Connectivity Fee Schedule to provide 

an alternative procedure by which the 

Exchange can allocate power in the 

Mahwah Data Center (‘‘MDC’’) 4 via 

deposit-guaranteed orders from Users 

made within a 90-day ‘‘Ordering 

Window.’’ 

Background 

Shortly after the onset of the Covid19 pandemic, the Exchange began 

experiencing unprecedented User 5

demand for cabinets and power at the 

MDC. In order to manage its inventory, 

in late 2020, the Exchange filed to create 

purchasing limits and a waitlist for 

cabinet orders.6 In early 2021, the 

Exchange filed to create additional 

purchasing limits and a waitlist for 

orders for additional power in the 

MDC.7 Pursuant to the terms of those 

filings, a Combined Waitlist is currently 

in place. 

In 2021 and 2022, the Exchange 

expanded the amount of space and 

power available in the MDC by opening 

a new colocation hall (i.e., Hall 4), yet 

User demand for additional power 

continues to climb. Currently, the 

waitlist includes 27 Users collectively 

requesting in excess of an additional 

700 kilowatts (‘‘kW’’) of power. That 

number, however, may be a mere 

fraction of Users’ true demand for 

additional power at the MDC, since, due 

to the existing waitlist procedures, the 

Exchange may not accept orders for 

more than 32 kW of power, and a User 

and its Affiliates 8 may have only one 

order on the waitlist at a time. Of the 27 

Users on the current waitlist, many have 

mentioned that they are actually 

interested in purchasing much more 

than 32 kW of power, with several 

claiming that they are seeking 

additional power of several hundred 

kilowatts.9

ICE is currently expanding the 

amount of colocation space and power 

available at the MDC. ICE is already 

developing a new colocation hall (i.e., 

Hall 5) to deliver power that would 

satisfy all orders currently on the 

waitlist with some extra power 

remaining. 

ICE proposes this rule change to 

address two issues posed by the current 

situation. First, while the development 

of Hall 5 is underway, ICE must also 

evaluate whether customer demand 

would support additional expansion 

projects to provide further power. ICE 

must anticipate future demand now 

because each colocation expansion 

project is a significant capital project 

requiring long lead times, especially 

given current supply-chain constraints 

on equipment, and substantial up-front 

investment. It may be possible for ICE 

to leverage certain efficiencies and 

economies of scale by planning for 

future expansion now. 

Yet ICE currently lacks any real 

indication of customers’ true demands. 

As noted above, the current waitlist of 

700 kW may represent a mere fraction 

of Users’ true power requirements, since 

waitlist orders are limited to one order 

of 32 kW per User. On the one hand, ICE 

does not know whether the extra power 

that will be provided in Hall 5 will be 

enough to meet Users’ needs. On the 

other hand, ICE cannot justify the 

investment of time and expense that it 

would take to create additional 

colocation space based on only casual 

indications of interest from customers. 

Without firm, guaranteed commitments 

from Users to purchase the power if it 

is made available, ICE runs the risk of 

underestimating or overestimating 

Users’ true demand for power and faces 

the possibility of undersupplying or 

oversupplying space and power. 

Second, the existing procedures in the 

Connectivity Fee Schedule are not welltailored to allocating large amounts of 

power that become available all at once, 

such as when a new colocation hall 

opens. Under the existing procedures, if 

less than 350 kW of unallocated power 

is available, the Purchasing Limits in 

Colocation Note 6 restrict all orders to 

32 kW—but any time more than 350 kW 

of unallocated power is available, Users 

can place unlimited orders that the 

Exchange must allocate on a first-come, 

first-served basis. Regarding Hall 5, the 

Exchange anticipates large amounts of 

unallocated power becoming available 

at several intervals. This could create a 

race condition in which the largest 

Users place early orders for many 

hundreds of kilowatts of power, 

effectively shutting out other customers 

with more modest power needs. The 

Exchange therefore believes that it 

needs a different procedure when 

allocating substantial amounts of power 

at one time due to a hall expansion or 

other similar expansion of available 

power. 

Proposed ‘‘Ordering Window’’ 

Procedure 

The Exchange proposes to solve these 

issues by providing a temporary 

procedure to permit the Exchange to 

accept unlimited, deposit-guaranteed 

orders from Users for a period of 90 

days (the ‘‘Ordering Window’’). The 

Colocation Notes in the Connectivity 

Fee Schedule would be amended 

accordingly. 

Based on the total power ordered by 

Users during the Ordering Window, ICE 

would gain insight into whether further 

expansion beyond Hall 5 is likely to be 

required in the future. Requiring Users 

to submit deposits with their orders 

during this Ordering Window would 

encourage Users to carefully assess their 

true power needs and would protect 

against Users ordering more power than 

they actually intend to purchase. After 


ddrumheller on DSK120RN23PROD with NOTICES1
58366 Federal Register / Vol. 88, No. 164 / Friday, August 25, 2023 / Notices 

10 During the Ordering Window, any orders 

submitted by Users must meet the requirements of 

Colocation Note 8. The Exchange would not accept 

new orders to the waitlist established under 

Colocation Note 7 while the Ordering Window is 

open. 11For instance, the required deposit would be 

calculated as the number of kilowatts ordered by 

the User in its Ordering Window order, multiplied 

by the appropriate ‘‘Per kW Monthly Fee’’ as 

indicated in the Connectivity Fee Schedule. The Per 

kW Monthly Fee is a factor of the total number of 

kilowatts allocated to all of a User’s dedicated 

cabinets and varies based on the total kilowatts 

allocated to a User. 

12 In the event that a User wishes to reduce an 

order that it placed during the Ordering Window, 

its deposit would not be reduced or returned, but 

rather would be applied against the User’s first and 

subsequent months’ invoices after the power is 

delivered until the deposit is depleted. 

13To illustrate, if a User finalized an order for 100 

kW during the Ordering Window and was allocated 

32 kW of power during Step 2 and no further power 

remained to be allocated after Step 2, the User’s 

order would be considered completed. The residual 

68 kW ordered would not be transferred to a 

waitlist. The User would be free to submit a new 

order for additional power after the Ordering 

Window (subject to the Purchasing Limits, if then 

in effect). 

14To illustrate, if a User finalized an order for 100 

kW during the Ordering Window and was allocated 

a total of 90 kW of power in Steps 2 and 3, the order 

would be considered completed. The residual 10 

kW ordered would not be transferred to a waitlist. 

The User would be free to submit a new order for 

additional power after the Ordering Window 

(subject to the Purchasing Limits, if then in effect). 

the Ordering Window closes, the 

Exchange would allocate power to Users 

according to terms described below, 

which would ensure that every User 

submitting an order would receive at 

least some power and no Users would 

be shut out of the allocation. Following 

the Ordering Window, the existing 

purchasing limits and waitlist 

procedures in Colocation Notes 6 and 7 

would then resume. 

Specifically, the Exchange proposes to 

amend the Connectivity Fee Schedule to 

add new Colocation Note 8, entitled 

‘‘Ordering Window.’’ 

Paragraph (a) of Colocation Note 8 

would provide that the Exchange may 

announce, by customer notice, a 90-day 

Ordering Window during which the 

Exchange may accept orders and 

deposits pursuant to the terms below. 

Paragraph (a) would specify that if the 

Exchange announces an Ordering 

Window while the Cabinet and Power 

Purchasing Limits in Colocation Note 6 

and/or the Cabinet and Combined 

Waitlist provisions in Colocation Note 7 

are in effect, the terms of the Ordering 

Window as set out in Colocation Note 

8 would temporarily supersede those 

terms.10

Paragraph (b) of Colocation Note 8 

would specify the procedures for 

placing orders and paying deposits 

during the Ordering Window. 

Subparagraph (1) would provide that 

during the Ordering Window, Users 

may submit orders for their anticipated 

power needs, subject to the following. 

First, a User and its Affiliates, if any, 

may finalize only one order for power 

during the Ordering Window. Second, 

the provision of Colocation Note 7 that 

prohibits the Exchange from accepting 

orders for more than four dedicated 

cabinets and/or 32 kW of power would 

not apply. Third, a User may submit an 

order during the Ordering Window even 

if it already has an order pending on a 

waitlist pursuant to Colocation Note 7. 

Subparagraph (2) of paragraph (b) 

would provide that orders submitted 

during the Ordering Window are subject 

to deposits equal to two months’ worth 

of the monthly recurring costs of the 

amount of new power ordered.11 The 

subparagraph would further provide 

that a User’s order would be finalized 

when the User’s signed order form and 

deposit are received by the Exchange, 

and that orders that are not finalized 

before the Ordering Window closes will 

be considered void. Subparagraph (2) of 

paragraph (b) would further provide that 

the deposit would be applied to the 

User’s first and subsequent months’ 

invoices after the power is delivered 

until the deposit is depleted. If the User 

withdraws its order during the Ordering 

Window, the deposit would be 

returned.12

Subparagraph (3) of paragraph (b) 

would provide that a User may modify 

its order during the Ordering Window, 

but such modification would not be 

finalized until the User’s signed 

modified order form and any additional 

deposit are received by the Exchange. 

Paragraph (c) of Colocation Note 8 

would specify the Exchange’s procedure 

for allocating available power after the 

Ordering Window ends. After 

determining the total amount of power 

available to allocate, the Exchange 

would allocate the available power as 

follows. In Step 1, per subparagraph (1) 

of paragraph (c), the Exchange would 

allocate power to fill any orders on any 

waitlist in effect pursuant to Colocation 

Note 7 (e.g., the current waitlist of 32 

kW orders totaling 700 kW). 

In Step 2, per subparagraph (2) of 

paragraph (c), the Exchange would 

allocate up to 32 kW of power to each 

User that finalized an order during the 

Ordering Window, subject to the 

following. If sufficient power is 

available, the Exchange would allocate 

32 kW of power to each User, except 

that orders for less than 32 kW would 

be filled only up to the number of 

kilowatts actually ordered. If sufficient 

power is not available to allocate 32 kW 

of power to each User, the Exchange 

would allocate the available power 

equally among all Users (rounded to a 

whole number of kilowatts), except that 

no User would be allocated more 

kilowatts than it actually ordered. If no 

power remains to be allocated after Step 

2, all orders finalized during the 

Ordering Window would be considered 

to be completed.13

In Step 3, per subparagraph (3) of 

paragraph (c), if any power remains to 

be allocated after Step 2, the Exchange 

would allocate power to any orders that 

were not completely filled during Step 

2, as follows. If sufficient power is 

available, the Exchange would allocate 

power to completely fill all remaining 

orders finalized during the Ordering 

Window. If sufficient power is not 

available to completely fill all such 

orders, the Exchange would allocate 

power to fill an identical percentage of 

each remaining order (rounded to a 

whole number of kilowatts). All such 

orders would then be considered 

completed.14

Paragraph (d) of Colocation Note 8 

would specify that any orders received 

by the Exchange after the end of the 

Ordering Window would not be 

included in the allocation process 

described in Colocation Note 8. Such 

orders would be subject to the terms of 

Colocation Notes 6 and 7. 

Application and Impact of the Proposed 

Changes 

The Exchange currently anticipates 

invoking the proposed Ordering 

Window procedure to assist in 

determining Users’ power needs and to 

allocate power in Hall 5. The procedure 

could also be used in the future each 

time the Exchange or ICE must assess 

customer demand for additional space 

and power in the MDC or allocate large 

amounts of power that become available 

at one time. 

The Exchange does not propose to 

eliminate or alter the existing 

purchasing limits and waitlist 

procedures in Colocation Notes 6 and 7. 

Rather, those procedures would be 

temporarily superseded during the 

Ordering Window and would resume 

immediately after the Ordering Window 

ends. 

The Exchange expects that the 

proposed changes would apply equally 

to all types and sizes of market 

participants. All Users would receive 

equal notice of the opening of the 

Ordering Window; the Ordering 

Window dates would be the same for all 

Users; and each order during the 

Ordering Window would be secured 

with a deposit equal to two months of 

the monthly recurring costs of the 


ddrumheller on DSK120RN23PROD with NOTICES1
Federal Register / Vol. 88, No. 164 / Friday, August 25, 2023 / Notices 58367 

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

16 15 U.S.C. 78f(b)(5). 

17To illustrate, for a large User ordering an 

additional 300 kW of power, the deposit required 

would be $540,000 (i.e., two times the monthly 

recurring cost of $270,000), while a smaller User 

ordering an additional 32 kW of power would pay 

an estimated deposit of $60,000 (i.e., two times the 

monthly recurring cost of $30,000), depending on 

how much power it already had at the MDC. 

18For example, since 2012, the Exchange has 

required prospective issuers to pay a $25,000 initial 

application fee as part of the process for listing a 

new security on the exchange. This fee functions as 

a deposit that is credited toward the issuer’s listing 

fees after it is listed on the exchange. The deposit 

functions as ‘‘a disincentive for impractical 

applications by issuers.’’ The deposit is forfeited if 

the issuer does not ultimately list on the exchange. 

See Securities Exchange Act Release No. 68470 

(December 19, 20212), 77 FR 76116 at 76117 

(December 26, 2012) (SR–NYSE–2012–68). 

power ordered during the Ordering 

Window. 

The proposed Ordering Window 

procedure would not disadvantage 

Users on the current waitlist pursuant to 

Colocation Note 7, since power would 

be allocated to those orders first under 

the Ordering Window procedure. 

Smaller Users with more modest 

power needs would not be 

disadvantaged by the proposed changes. 

In Step 2, each User that finalized an 

order during the Ordering Window 

would be allocated up to 32 kW of 

power (subject to sufficient power being 

available) before any User’s order for 

more than 32 kW would be filled. This 

would ensure that all Users that 

participate in the Ordering Window 

would receive at least some power and 

no Users would be shut out of the 

allocation. In addition, because the 

deposit is proportional to the size of the 

order, and not a fixed amount, smaller 

Users would not be disproportionately 

affected by the deposit requirement. 

The proposed changes are not 

otherwise intended to address any other 

issues relating to colocation services 

and/or related fees, and the Exchange is 

not aware of any problems that Users 

would have in complying with the 

proposed change. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

section 6(b) of the Act,15 in general, and 

furthers the objectives of section 6(b)(5) 

of the Act,16 in particular, because it is 

designed to prevent fraudulent and 

manipulative acts and practices, to 

promote just and equitable principles of 

trade, to foster cooperation and 

coordination with persons engaged in 

regulating, clearing, settling, processing 

information with respect to, and 

facilitating transactions in securities, to 

remove impediments to and perfect the 

mechanism 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 designed 

to remove impediments to and perfect 

the mechanism of a free and open 

market and a national market system by 

creating an alternative procedure by 

which the Exchange can allocate power 

in the MDC. The current procedures 

provide for only two allocation 

methods: orders that must be limited to 

32 kW when the Purchasing Limits are 

in effect, and unlimited orders that the 

Exchange must fill on a first-come, firstserved basis when the Purchasing 

Limits are not in effect. Neither of those 

current procedures gives the Exchange a 

way to obtain accurate information from 

Users about their actual and anticipated 

power needs—information that the 

Exchange requires in order to properly 

plan for future hall expansions at the 

MDC. The current procedures are not 

well-tailored to allocating large amounts 

of power that become available all at 

once, such as when a new colocation 

hall opens. When a large amount of 

power becomes available at one time, 

such as through a hall expansion, the 

current procedures could create a race 

condition in which the largest Users 

place early orders for many hundreds of 

kilowatts of power that the Exchange 

must fill on a first-come, first-served 

basis, effectively shutting out other 

customers with more modest power 

needs. In contrast, the proposed 

alternative procedure would remove 

impediments and perfect the 

mechanism of a free and open market 

and a national market system by 

permitting the Exchange to allocate up 

to 32 kW of power (subject to sufficient 

power being available) to each User 

before any User’s order for more than 32 

kW would be filled. This would ensure 

that each User submitting a finalized 

order during the Ordering Window 

would be guaranteed to receive at least 

some power and no Users would be shut 

out of the allocation. 

The proposed requirement that orders 

submitted during the Ordering Window 

be guaranteed by a deposit is also 

designed to remove impediments and to 

perfect the mechanism of a free and 

open market and a national market 

system. The current procedures give the 

Exchange no way to accurately measure 

User demand for additional power. The 

existing waitlist is no indication of 

Users’ actual demand, since waitlist 

orders are capped at 32 kW. Users’ 

comments that they are interested in 

purchasing hundreds more kilowatts of 

power are mere casual mentions, which, 

in the Exchange’s experience, Users 

sometimes walk back when the power 

actually becomes available. Without 

firm, guaranteed commitments from 

Users to purchase the power if it is 

made available, the Exchange runs the 

risk of underestimating or 

overestimating Users’ true demand for 

power. The proposed deposit 

requirement would address these issues 

by discouraging Users from submitting 

orders for more power than they 

actually intend to purchase and would 

indicate the true amount of additional 

power that each User would agree to 

purchase if it were made available. The 

proposed deposit requirement of two 

months’ worth of the monthly recurring 

costs of the amount of new power 

ordered during the Ordering Window is 

reasonable because, on the one hand, it 

is not so onerous as to dissuade Users 

from submitting orders, and, on the 

other hand, it is not so trivial that it 

would fail to deter Users from 

submitting exaggerated orders.17 The 

Exchange requires market participants 

to submit deposits in other contexts, 

and as such, the deposit requirement 

here would not be novel.18

Under the proposed procedure, if a 

User wishes to reduce an order that it 

placed during the Ordering Window, its 

deposit would not be reduced or 

returned, but rather would be applied 

against the User’s first and subsequent 

months’ invoices after the power is 

delivered until the deposit is completely 

depleted. The Exchange believes that 

this would remove impediments and 

perfect the mechanism of a free and 

open market and a national market 

system because it would ensure that a 

User would be reimbursed for all of its 

deposit even if it reduces its order after 

the Ordering Window closes. This 

would remove any incentive a User 

otherwise might have to understate its 

needs for power out of a concern that it 

would not be reimbursed for the full 

amount of its deposit. 

The proposed rule change would 

protect investors and the public interest 

in that it would provide the Exchange 

with accurate insight into Users’ true 

power requirements. It is in the public 

interest for the Exchange to take User 

demand into account and to make 

reasoned, informed decisions about 

whether and how to expand the MDC. 

The proposed rule change is not 

designed to permit unfair 

discrimination between customers, 

issuers, brokers, or dealers. The 

proposed changes would apply equally 


ddrumheller on DSK120RN23PROD with NOTICES1
58368 Federal Register / Vol. 88, No. 164 / Friday, August 25, 2023 / Notices 

19 15 U.S.C. 78f(b)(8). 

20 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

to all types and sizes of market 

participants. All Users would receive 

equal notice of the opening of the 

Ordering Window; the Ordering 

Window dates would be the same for all 

Users; and each order during the 

Ordering Window would be secured 

with a deposit equal to two months of 

the monthly recurring costs of the 

power ordered. Smaller Users with more 

modest power needs would not be 

disadvantaged by the proposed changes. 

In Step 2, each User that finalized an 

order during the Ordering Window 

would be allocated up to 32 kW of 

power (subject to sufficient power being 

available) before any User’s order for 

more than 32 kW would be filled. This 

would ensure that all Users that 

participate in the Ordering Window 

would receive at least some power and 

no Users would be shut out of the 

allocation. In addition, because the 

deposit is proportional to the size of the 

order and not a fixed amount, smaller 

Users would not be disproportionately 

affected by the deposit requirement. 

Finally, the proposed Ordering Window 

procedure would not disadvantage 

Users on the current waitlist pursuant to 

Colocation Note 7, since power would 

be allocated to those orders first under 

the Ordering Window procedure. 

For all 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,19 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. 

The Exchange believes that the 

proposed rule change would not place 

any burden on competition that is not 

necessary or appropriate in furtherance 

of the purposes of the Act. The 

proposed rule change would provide an 

alternative procedure by which the 

Exchange can allocate power in the 

MDC that both provides the Exchange 

with reliable information about Users’ 

true power needs and allows all Users 

that submit deposit-guaranteed orders 

during the Ordering Window to be 

assured of receiving at least some 

additional power. The Exchange does 

not expect the proposed rule change to 

impact intra-market or intermarket 

competition between exchanges, Users, 

or any other market participants. 

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 

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 (https://www.sec.gov/ 

rules/sro.shtml); or 

• Send an email to rule-comments@

sec.gov. Please include file number SR– 

NYSENAT–2023–18 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–NYSENAT–2023–18. 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 (https://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 

a.m. and 3 p.m. Copies of the filing also 

will be available for inspection and 

copying at the principal office of the 

Exchange. Do not include personal 

identifiable information in submissions; 

you should submit only information 

that you wish to make available 

publicly. We may redact in part or 

withhold entirely from publication 

submitted material that is obscene or 

subject to copyright protection. All 

submissions should refer to file number 

SR–NYSENAT–2023–18 and should be 

submitted on or before September 15, 

2023. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.20

Sherry R. Haywood, 

Assistant Secretary. 

[FR Doc. 2023–18297 Filed 8–24–23; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–98182; File No. SR–ISE– 

2023–18] 

Self-Regulatory Organizations; Nasdaq 

ISE, LLC; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change To Amend Options 3, 

Section 15 (Simple Order Risk 

Protections) To Adopt an Active Quote 

Protection 

August 21, 2023. 

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 August 

11, 2023, Nasdaq ISE, LLC (‘‘ISE’’ or 

‘‘Exchange’’) filed with the Securities 

and Exchange Commission (‘‘SEC’’ or 

‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III, 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. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to amend 

Options 3, Section 15 (Risk Protections) 

to adopt an active quote protection. 


ddrumheller on DSK120RN23PROD with NOTICES1