[Federal Register Volume 89, Number 33 (Friday, February 16, 2024)]
[Notices]
[Pages 12402-12406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03225]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-99520; File No. SR-NYSE-2024-05]


Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Amend the Connectivity Fee Schedule

February 12, 2024.
    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 January 29, 2024, 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 
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 Substance 
of the Proposed Rule Change

    The Exchange proposes to amend the Connectivity Fee Schedule to 
expand existing wireless connections between

[[Page 12403]]

the data center in Mahwah, New Jersey and Canada. 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 the 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of those statements may be examined at 
the places specified in Item IV below. The Exchange has prepared 
summaries, set forth in sections A, B, and C below, of the most 
significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend the Connectivity Fee Schedule to 
expand existing wireless connections between the data center in Mahwah, 
New Jersey (``MDC'') \4\ and Canada.\5\
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    \4\ Through 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-NYSEAMER-
2024-07, SR-NYSEArca-2024-11, SR-NYSECHX-2024-03, and SR-NYSENAT-
2024-02.
    \5\ Although it presently has proprietary use of it, FIDS does 
not own the wireless network that would be used to provide the 
services. The services would be provided by FIDS pursuant to an 
agreement with one or more non-ICE entities.
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    The Exchange expects that the proposed rule change would become 
operative no later than March 31, 2024. The Exchange will announce the 
date that the proposed services will be available through a customer 
notice.
Proposed Changes to the Wireless Connections
    The Exchange currently offers wireless connections between the MDC 
and the access center in the Markham, Canada data center (``Markham'') 
of 1, 5 and 10 Mb (the ``Markham Connections'').\6\ The Exchange 
understands that purchasers may also wish to use a wireless bandwidth 
connection to send trading orders and relay market data between their 
equipment in the MDC and a data center in Toronto, Canada that hosts 
several Canadian exchanges, including Nasdaq Canada (``TR2''). With 
such a wireless connection, purchasers' wireless connections to the 
Toronto area would not be limited to Markham and the exchanges located 
there. However, the Exchange is not aware of any wireless connection 
between the MDC and TR2 that is currently commercially available.
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    \6\ See Securities Exchange Act Release No. 90209 (October 15, 
2020), 85 FR 67044 (October 21, 2020) (SR-NYSE-2020-05, SR-NYSEAMER-
2020-05, SR-NYSEArca-2020-08, SR-NYSECHX-2020-02, SR-NYSENAT-2020-
03, SR-NYSE-2020-11, SR-NYSEAMER-2020-10, SR-NYSEArca-2020-15, SR-
NYSECHX-2020-05, SR-NYSENAT-2020-08).
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    To that end, the Exchange proposes to expand its existing wireless 
bandwidth connections to Markham to include connections of the same 
size to TR2 (the ``TR2 Connections''). As a result of the proposed 
expansion, a purchaser's wireless bandwidth connection would be between 
the MDC and both Markham and TR2.\7\
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    \7\ A purchaser would not be required to receive the connection 
in both Markham and TR2 if they chose to be present in only one 
Canadian access center.
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    The Exchange proposes to offer this expanded service at no 
additional charge. The previously filed \8\ initial charge and monthly 
recurring charge (``MRC'') for the Markham Connections would now also 
include the TR2 Connections as well. Customers purchasing the service 
would not be required to connect to both Markham and TR2, but if they 
chose to do so, they could connect to both data centers for the same 
fees that currently apply to connectivity to Markham only. Customers 
that currently have a Markham Connection would not have to pay a second 
initial charge or a second MRC in order to expand their Markham 
Connection to include a TR2 Connection of the same size.\9\
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    \8\ See id.
    \9\ As is currently true for Markham Connections, a customer 
that purchased a new connection would have its first month's MRC 
waived. As is true now, if a customer that had a wireless connection 
purchased a larger or smaller size wireless connection to replace 
it, the customer would not be subject to a second initial charge.
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    Under the proposed expanded service, northbound and southbound 
wireless services would operate in a distinct manner. Data sent 
northbound from the MDC would be transported to both Canadian access 
centers such that the same data would be delivered to both Markham and 
TR2. The customer would not have two independent connections but rather 
would use a single connection to reach both Canadian access centers. At 
each, the customer would have access to the total Mb of the wireless 
circuit.\10\
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    \10\ For example, if a customer had a 5 Mb circuit, it would 
have a 5 Mb connection to Markham and a 5 Mb connection to TR2. A 
customer that chose to be at both access centers would receive all 
data that has been sent northbound at both access centers.
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    Southbound, the purchaser could choose to send data from one or 
both of the Canadian access centers. The purchaser could send data up 
to the total number of Mb of the wireless circuit from either access 
center, so long as the combined amount of data that reached the MDC did 
not exceed the total Mb of the wireless circuit that the customer 
purchased. The distribution would not be static: the number of Mb of 
data from either Canadian access center could vary at the customer's 
discretion.\11\
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    \11\ For example, if a customer had a 5 Mb circuit, southbound 
the customer could choose to send 3 Mb of data from Markham and 2 Mb 
of data from TR2 at one moment, and then 1 Mb of data from Markham 
and 4 Mb of data from TR2 at the next moment.
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    In order to implement the proposed change, the Exchange proposes to 
amend the table under ``B. Wireless Connectivity'' in the Connectivity 
Fee Schedule as follows (proposed new text italicized and proposed 
deletions in brackets):

------------------------------------------------------------------------
        Type of service            Description        Amount of charge
------------------------------------------------------------------------
Wireless Connections between    1 Mb Circuit.....  $10,000 per
 Mahwah Data Center and one or                      connection initial
 both of (a) Markham access                         charge plus monthly
 center and (b) TR2 access                          charge per
 center.                                            connection of
                                                    $6,000.
Wireless Connections between    5 Mb Circuit.....  $10,000 per
 Mahwah Data Center and one or                      connection initial
 both of (a) Markham access                         charge plus monthly
 center and (b) TR2 access                          charge per
 center.                                            connection of
                                                    $15,500.

[[Page 12404]]

 
Wireless Connections between    10 Mb Circuit....  $10,000 per
 Mahwah Data Center and one or                      connection initial
 both of (a) Markham access                         charge plus monthly
 center and (b) TR2 access                          charge per
 center.                                            connection of
                                                    $23,000.
------------------------------------------------------------------------

    The Exchange also proposes to add the following to the Connectivity 
Fee Schedule, following the table under ``B. Wireless Connectivity'' 
(all text is new):

Wireless Connectivity Note

    A customer may purchase a Wireless Connection between the Mahwah 
Data Center and one or both of (a) the Markham access center and (b) 
the TR2 access center. If the customer chooses to connect to both 
Canadian access centers, the northbound and southbound wireless 
services operate in a distinct manner. Northbound, the same data is 
sent to both the Markham and TR2 access centers. Southbound, the 
customer may choose the Mb of data it sends from each Canadian 
access center, so long as the combined total Mb entering the Mahwah 
Data Center equals no more than the total Mb of the wireless 
circuit.

    Once a customer requested connectivity to TR2 as part of the 
expanded service, FIDS would establish a wireless connection between 
TR2 and the MDC using the wireless network owned by another party. As 
is currently true of the Markham Connections, the proposed expanded 
wireless connection would terminate on a pole off the grounds of the 
MDC property.\12\ Also as currently true of the Markham Connections, 
the expanded service would not connect directly to the Exchange trading 
and execution systems.
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    \12\ See 85 FR 67044, note 6, supra, at 67054.
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    The Exchange proposes to expand its existing service because it 
understands that purchasers may also wish to use a wireless bandwidth 
connection to send trading orders and relay market data between their 
equipment in the MDC and TR2. With such a wireless connection, 
purchasers' wireless connections would not be limited to Markham and 
the exchanges located there.
    Customers would have control over what data they send over their 
TR2 Connection or Markham Connection. They may, but are not required 
to, use them to send trading orders to their equipment in co-location; 
relay Exchange market data, third party market data and public quote 
feeds from securities information processors; send risk management, 
billing, or compliance information; or to carry any other market 
information or other data they wish to and from their equipment in TR2, 
Markham, and the MDC. The Exchange would not, and could not, know what 
data customers sent over the connections and would not send or receive 
any data over the connections.
General
    The proposed changes would apply to all customers equally. The 
proposed changes would not apply differently to distinct types or sizes 
of market participants. As is currently the case, the purchase of any 
connectivity service is completely voluntary and the Connectivity Fee 
Schedule is applied uniformly to all customers.
    FIDS has proposed to expand the existing service to include the TR2 
Connections at the request of FIDS customers. It does not expect that 
the proposed change will result in new customers in Markham.
    The proposed changes are 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 customers 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 Section 6(b)(5) of the Act,\14\ 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 Exchange further believes 
that the proposed rule change is consistent with Section 6(b)(4) of the 
Act,\15\ 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 does not unfairly discriminate between 
customers, issuers, brokers, or dealers.
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    \13\ 15 U.S.C. 78f(b).
    \14\ 15 U.S.C. 78f(b)(5).
    \15\ 15 U.S.C. 78f(b)(4).
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The Proposed Change Is Reasonable
    The Exchange believes that the proposed expansion of the existing 
services is reasonable and would perfect the mechanisms of a free and 
open market and a national market system and, in general, protect 
investors and the public interest, because it would increase the 
connectivity currently offered by allowing customers to connect to TR2 
as well as Markham for no additional charge. Adding this additional 
connection option would allow the customer to use a wireless bandwidth 
connection to relay market data and send trading orders between the MDC 
and the exchanges and alternative trading systems located in TR2. The 
purchaser would be able to determine what data to transport between the 
MDC and the two Canadian access centers based on what would best serve 
its needs, tailoring the service to the requirements of its business 
operations, at no additional cost to customers.
    The Exchange further believes that it is reasonable and would 
perfect the mechanisms of a free and open market and a national market 
system and, in general, protect investors and the public interest to 
expand the connectivity options because it would be responsive to 
requests from customers, who have asked for the TR2 Connections.
    The Exchange believes that the proposed wireless connection between 
MDC and TR2 would be the first commercially available wireless 
connection between the two points, creating a new connectivity option 
for customers. The Exchange believes that creating such a connection 
would be reasonable and would perfect the mechanisms of a free and open 
market and a national market system and, in general, protect investors 
and the public interest because market participants may create their 
own proprietary or commercial wireless connections between the two 
points. The Exchange could not impose any impediments to a third party 
seeking to offer a similar service, including by placing them at a 
latency or other competitive disadvantage with respect to the Exchange.
    Because the proposed expanded service is designed to offer market

[[Page 12405]]

participants a means to minimize the latency of their communications, 
including trading orders, and receipt of market data, it will thereby 
enhance the efficiency of their trading strategies on the Exchange and 
elsewhere, and because there is no impediment to competitors offering 
similar services, the Exchange believes that the proposed change is 
reasonable and would perfect the mechanisms of a free and open market 
and a national market system and, in general, protect investors and the 
public interest.
    The Exchange also believes that the proposed change is reasonable 
and would perfect the mechanisms of a free and open market and a 
national market system and, in general, protect investors and the 
public interest because the expanded service including TR2 Connections 
would be available at the currently filed initial charge and MRC for 
the Markham Connections, with no additional charge for the expanded 
service. Accordingly, the Exchange believes that the proposed change is 
reasonable because the change would mean that a customer would receive 
an enhanced offering with the option of adding connectivity to a second 
Canadian access center for the same price that the Exchange currently 
charges for a connection to one Canadian access center. Customers that 
currently have a Markham Connection would not have to pay a second 
initial charge in order to obtain an expanded connection. As is 
currently true for Markham Connections, a customer that purchased a new 
connection would have its first month's MRC waived.
    The Exchange believes that it is reasonable that the charge be the 
same whether the purchaser opts to connect to one or both Canadian 
access centers. The size of the connection, not the number of Canadian 
access centers it leads to, factors into setting the price. First, the 
Exchange believes it is reasonable to view the expanded service as one 
service, and not two. Whether a purchaser connects to one or both 
Canadian access centers, the southbound connection is limited in size 
to the total bandwidth of the circuit. At the same time, northbound 
both access centers will receive all data sent on the connection. 
Second, the Exchange believes it is reasonable to base its cost on the 
size of the wireless bandwidth connection, not the number of Canadian 
access centers it reaches. If one customer wishes to use more of the 
wireless connection than its current circuit allows, it would need to 
increase the size of its circuit, and so its cost would increase. 
Markham and TR2 are geographically close together and both are 
important access centers, so the network was designed to connect to 
both locations. Accordingly, it is the size of the circuit, not the 
number of Canadian access centers, that matters to the Exchange.
    The Exchange believes that it is reasonable and would perfect the 
mechanisms of a free and open market and a national market system and, 
in general, protect investors and the public interest to add the 
proposed wireless connectivity note. The Exchange believes that adding 
such text would alleviate any possible customer confusion as to how the 
connections between the MDC and Canadian access centers would work. In 
this way, it would enhance the clarity and transparency of the 
Connectivity Fee Schedule.
The Proposed Change Is Equitable and Not Unfairly Discriminatory
    The Exchange believes that the proposed change provides for the 
equitable allocation of reasonable dues, fees, and other charges among 
its members and issuers and other persons using its facilities and does 
not unfairly discriminate between customers, issuers, brokers, or 
dealers because the change would mean that a customer would receive an 
expanded service, with the option of adding connectivity to two 
Canadian access centers for the same price that the Exchange currently 
charges for a connection to one Canadian access center.
    Customers that currently have a Markham Connection would not have 
to pay a second initial charge in order to also obtain a TR2 Connection 
of the same size. As is currently true for Markham Connections, a 
customer that purchased a new connection would have its first month's 
MRC waived.
    Further, the Exchange believes that the proposed change is 
equitable and not unfairly discriminatory since, as is true now, only 
customers that purchased the proposed service would be charged for it. 
The proposed change would not apply differently to distinct types or 
sizes of market participants but would apply to all customers equally. 
Moreover, although the Exchange proposes to expand the connectivity 
options, a customer that currently has a Markham Connection would not 
be obligated to make any changes. As is currently the case, the 
purchase of any connectivity service would be completely voluntary.
    The Exchange believes that it is equitable and not unfairly 
discriminatory that the charge be the same whether the purchaser opts 
to connect to one or both Canadian access centers. The size of the 
connection, not the number of Canadian access centers it leads to, 
factors into setting the price. First, the Exchange believes it is 
equitable and not unfairly discriminatory to view the expanded service 
as one service, and not two. Whether a purchaser connects to one or 
both Canadian access centers, the southbound connection is limited in 
size to the total bandwidth of the circuit. At the same time, 
northbound both access centers will receive all data sent on the 
connection. Second, the Exchange believes it is equitable and not 
unfairly discriminatory to base its cost on the size of the wireless 
bandwidth connection, not the number of Canadian access centers it 
reaches. If one customer wishes to use more of the wireless connection 
than its current circuit allows, it would need to increase the size of 
its circuit, and so its cost would increase. Markham and TR2 are 
geographically close together, and both are important access centers, 
so the network was designed to connect to both locations. Accordingly, 
it is the size of the circuit, not the number of Canadian access 
centers, that matters to the Exchange.
    The Exchange believes that the proposed wireless connection between 
MDC and TR2 would be the first commercially available wireless 
connection between the two points, creating a new connectivity option 
for customers. The Exchange believes that creating such a connection 
would be equitable and not unfairly discriminatory because market 
participants may create their own proprietary or commercial wireless 
connections between the two points. The Exchange could not impose any 
impediments to a third party seeking to offer a similar service, 
including by placing them at a latency or other competitive 
disadvantage with respect to the Exchange.
    The Exchange believes that it is equitable and not unfairly 
discriminatory to add the proposed wireless connectivity note. The 
Exchange believes that adding such text would alleviate any possible 
customer confusion as to how the connections between the MDC and 
Canadian access centers would work. In this way, it would enhance the 
clarity and transparency of the Connectivity Fee Schedule, making it 
easier to read and understand and alleviating possible customer 
confusion for all market participants.
    For the reasons above, the proposed changes do not unfairly 
discriminate between or among market participants that are otherwise 
capable of satisfying

[[Page 12406]]

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

    The Exchange believes that the proposal will not impose any burden 
on competition that is not necessary or appropriate in furtherance of 
the purposes of Section 6(b)(8) of the Act \16\ because it is not 
designed to address any competitive issues. The proposed rule change 
would provide customers with a wider range of choices for wireless 
connectivity to Canada.
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    \16\ 15 U.S.C. 78f(b)(8).
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    The Exchange believes the wireless connections between MDC and TR2 
are the first commercially available wireless connections between the 
two points, creating a new connectivity option for customers. The 
Exchange believes that creating such a connection would not impose any 
burden on competition that is not necessary or appropriate because 
market participants may create their own proprietary or commercial 
wireless connections between the two points. The Exchange could not 
impose any impediments to a third party seeking to offer a similar 
service, including by placing them at a latency or other competitive 
disadvantage with respect to the Exchange. Indeed, a third party has 
announced that it plans to create a wireless connection between Markham 
and the MDC and the Exchange believes it intends to expand its offering 
to connect to the TR2, underscoring that the Exchange could not impose 
any impediments to a third party providing wireless connectivity.
    The proposed rule change would provide customers the ability to 
connect to a second Canadian data center for the same price they 
currently pay to connect to one. All customers would be able to choose 
if they want connections to one or both Canadian data centers and the 
size of connection they want. The Exchange does not believe that the 
proposed rule change would place any customer at a relative 
disadvantage compared to other customers.
    For these reasons, the Exchange believes that the proposed rule 
change reflects this competitive environment and does not impose any 
undue burden on intermarket competition.

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

    The Exchange has filed the proposed rule change pursuant to Section 
19(b)(3)(A)(iii) of the Act \17\ and Rule 19b-4(f)(6) thereunder.\18\ 
Because the proposed rule change does not: (i) significantly affect the 
protection of investors or the public interest; (ii) impose any 
significant burden on competition; and (iii) become operative prior to 
30 days from the date on which it was filed, or such shorter time as 
the Commission may designate, if consistent with the protection of 
investors and the public interest, the proposed rule change has become 
effective pursuant to Section 19(b)(3)(A) of the Act \19\ and Rule 19b-
4(f)(6)(iii) thereunder.\20\
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    \17\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \18\ 17 CFR 240.19b-4(f)(6).
    \19\ 15 U.S.C. 78s(b)(3)(A).
    \20\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file the proposed rule change, along 
with a brief description and text of the proposed rule change, at 
least five business days prior to the date of filing of the proposed 
rule change, or such shorter time as designated by the Commission. 
The Exchange has satisfied this requirement.
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    At any time within 60 days of the filing of such 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 under 
Section 19(b)(2)(B) \21\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \21\ 15 U.S.C. 78s(b)(2)(B).
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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

    <bullet> Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
    <bullet> Send an email to <a href="/cdn-cgi/l/email-protection#2e5c5b424b034d4143434b405a5d6e5d4b4d00494158"><span class="__cf_email__" data-cfemail="a3d1d6cfc68ec0cccecec6cdd7d0e3d0c6c08dc4ccd5">[email protected]</span></a>. Please include 
file number SR-NYSE-2024-05 on the subject line.

Paper Comments

    <bullet> 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-NYSE-2024-05. 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-NYSE-2024-05 and should be 
submitted on or before March 8, 2024.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\22\
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    \22\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-03225 Filed 2-15-24; 8:45 am]
BILLING CODE 8011-01-P


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