Federal Register / Vol. 89, No. 224 / Wednesday, November 20, 2024 / Notices 91817 

16 15 U.S.C. 78s(b)(3)(A). 

17 17 CFR 240.19b–4(f)(6). In addition, Rule19b– 

4(f)(6)(iii) 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. 

18 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 originally filed to amend the Fee 

Schedule on May 13, 2024 (SR–NYSE–2024–30). 

On July 11, 2024, the Exchange withdrew SR– 

NYSE–2024 30 and replaced it with SR–NYSE– 

2024–39. On September 6, 2024, the Exchange 

withdrew SR–NYSE–2024–39 and replaced it with 

SR–NYSE–2024–55. On November 4, 2024, the 

Exchange withdrew SR–NYSE–2024–55 and 

replaced it with this filing. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

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 for 30 days from the date on 

which it was filed, or such shorter time 

as the Commission may designate, it has 

become effective pursuant to Section 

19(b)(3)(A) of the Act 16 and 

subparagraph (f)(6) of Rule 19b–4 

thereunder.17

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 will institute proceedings 

to determine whether the proposed rule 

change 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– 

NYSEARCA–2024–97 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–NYSEARCA–2024–97. 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–NYSEARCA–2024–97 and should be 

submitted on or before December 11, 

2024. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.18

Vanessa A. Countryman, 

Secretary. 

[FR Doc. 2024–27020 Filed 11–19–24; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–101627; File No. SR–NYSE– 

2024–72] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change To Amend the 

NYSE Proprietary Market Data Fee 

Schedule To Establish an Access Fee 

for the NYSE Pillar Depth Data Feed 

November 14, 2024. 

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 November 

4, 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, 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 

NYSE Proprietary Market Data Fee 

Schedule to establish an Access Fee for 

the NYSE Pillar Depth data feed. 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 amend the 

NYSE Proprietary Market Data Fee 

Schedule (‘‘Fee Schedule’’). 

Specifically, the Exchange proposes to 

establish an Access Fee for the NYSE 

Pillar Depth (‘‘Pillar Depth’’) data feed, 

effective November 4, 2024.4

The proposed fee for Pillar Depth 

would be $250 per month, provided that 

the market data recipient separately 

pays the applicable fees for the five 

existing market data products 

underlying the Pillar Depth data feed, 

consistent with the existing fee 


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5See Securities Exchange Act Release No. 100030 

(April 25, 2024), 89 FR 35260 (May 1, 2024) (Notice 

of Filing and Immediate Effectiveness of Proposed 

Rule Change To Establish the NYSE Pillar Depth 

Data Feed) (SR–NYSE–2024–24) (‘‘Pillar Depth 

Product Filing’’). 

6Each of these data feeds are offered pursuant to 

preexisting and effective rules and fees filed with 

the Commission. This filing does not affect those 

rules, or the fees associated with these underlying 

data feeds or the ability for the Exchange, NYSE 

American, NYSE Arca, NYSE Chicago or NYSE 

National to amend the data feeds or fees associated 

with those data feeds pursuant to a separate rule 

filing. 

7See Securities Exchange Act Release No. 99689 

(March 7, 2024) 89 FR 18466 (March 13, 2024) 

(Notice of Filing and Immediate Effectiveness of 

Proposed Rule Change To Establish the NYSE 

Aggregated Lite Market Data Feed) (SR–NYSE– 

2024–12). 

8See Securities Exchange Act Release No. 99690 

(March 7, 2024) 89 FR 18445 (March 13, 2024) 

(Notice of Filing and Immediate Effectiveness of 

Proposed Rule Change To Establish the NYSE 

American Aggregated Lite Market Data Feed) (SR– 

NYSEAMER–2024–14). 

9See Securities Exchange Act Release No. 99713 

(March 12, 2024) 89 FR 19381 (March 18, 2024) 

(Notice of Filing and Immediate Effectiveness of 

Proposed Rule Change To Establish the NYSE Arca 

Aggregated Lite Market Data Feed) (SR– 

NYSEARCA–2024–22). 

10See Securities Exchange Act Release No. 99691 

(March 7, 2024) 89 FR 18468 (March 13, 2024) 

(Notice of Filing and Immediate Effectiveness of 

Proposed Rule Change To Establish the NYSE 

Chicago Aggregated Lite Market Data Feed) (SR– 

NYSECHX–2024–08). 

11See Securities Exchange Act Release No. 99715 

(March 12, 2024) 89 FR 19383 (March 18, 2024) 

(Notice of Filing and Immediate Effectiveness of 

Proposed Rule Change To Establish the NYSE 

National Aggregated Lite Market Data Feed) (SR– 

NYSENAT–2024–06). 12See Pillar Depth Product Filing, supra note 5. 

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

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

15 15 U.S.C. 78k–1. 

16 17 CFR 242.603. 

structures for those market data 

products. 

The Pillar Depth data feed is a 

frequency-based depth of book market 

data feed that provides a consolidated 

view of the ten (10) best price levels on 

both the bid and offer sides across the 

NYSE Group’s combined limit order 

books for securities traded on the NYSE 

Group equities markets, i.e., NYSE, 

NYSE American LLC (‘‘NYSE 

American’’), NYSE Arca, Inc. (‘‘NYSE 

Arca’’), NYSE Chicago, Inc. (‘‘NYSE 

Chicago’’) and NYSE National, Inc. 

(‘‘NYSE National’’), for which the NYSE 

Group equities markets report quotes 

and trades under the Consolidated Tape 

Association (‘‘CTA’’) Plan or the 

Nasdaq/UTP Plan.5 In other words, 

Pillar Depth would be a compilation of 

limit order data that the Exchange 

provides to vendors and subscribers, 

updated no less frequently than once 

per second. Specifically, the Pillar 

Depth data feed consists of certain data 

elements from five market data feeds 6— 

NYSE Aggregated Lite,7 NYSE American 

Aggregated Lite,8 NYSE Arca 

Aggregated Lite,9 NYSE Chicago 

Aggregated Lite 10 and NYSE National 

Aggregated Lite.11

The Exchange, NYSE American, 

NYSE Arca, NYSE Chicago and NYSE 

National are the exclusive distributors 

of the five Aggregated Lite feeds from 

which certain data elements are taken to 

create the Pillar Depth data feed. By 

contrast, the Exchange would not be the 

exclusive distributor of the aggregated 

and consolidated information that 

comprises the Pillar Depth data feed. 

Any entity that receives, or elects to 

receive, the five underlying Aggregated 

Lite data feeds would be able, if it so 

chooses, to create a data feed with the 

same information included in Pillar 

Depth and sell and distribute it to its 

clients so that it could be received by 

those clients as quickly as the Pillar 

Depth data feed would be received by 

those same clients.12

As proposed, the Exchange would 

charge a $250 per month Access Fee for 

the aggregation and consolidation 

function that the Exchange performs in 

creating Pillar Depth. To obtain Pillar 

Depth, a market data recipient would 

need to pay any applicable fees for the 

five data feeds underlying Pillar Depth, 

consistent with the existing fee 

schedules for those market data 

products as previously filed with the 

Commission and which may be 

amended from time to time, including 

any applicable Access, Redistribution, 

Professional User, Non-Professional 

User, Non-Display or Enterprise fees. 

The Exchange proposes to denote the 

requirement for market data recipients 

to pay the applicable fees for the five 

data feeds underlying Pillar Depth in 

proposed footnote 3 on the Fee 

Schedule. 

When subscribing to Pillar Depth, the 

underlying data feeds would be 

delivered in the Pillar Depth 

consolidated format, as described above, 

but charged for as if the recipient were 

receiving the underlying feeds directly. 

The Exchange notes that if a subscriber 

chooses to receive the five underlying 

feeds both separately and in the Pillar 

Depth format, such subscriber may be 

subject to additional Professional User 

or Non-Professional User fees to reflect 

the distribution of both Pillar Depth 

(which incorporates the five underlying 

data feeds) and any separate 

dissemination of the underlying data 

feeds. The Exchange believes that the 

proposed fees for Pillar Depth would 

not be lower than the cost to a vendor 

of creating a comparable product, 

including the cost of receiving the 

underlying data feeds. 

The Exchange notes that another 

market participant seeking to distribute 

a competing product to Pillar Depth 

might engage in a different analysis of 

assessing the cost of a competing 

product, which may incorporate passing 

through fees associated with co-location 

at the Mahwah, New Jersey data center. 

However, the incremental co-location 

cost to a particular vendor might be 

inconsequential if such vendor is 

already co-located and is able to allocate 

its co-location costs over numerous 

product and customer relationships. 

The Exchange therefore believes that a 

vendor could create and offer a product 

similar to Pillar Depth on a costcompetitive basis. 

The proposed rule change is intended 

to encourage market participants to 

subscribe to Pillar Depth by making it 

more affordable for prospective 

customers. The proposed fee change 

would allow the Exchange to compete 

more effectively with the Cboe One 

Premium Feed, which as described 

below, is a comparable market data 

offering to Pillar Depth. 

The Exchange notes that the proposed 

change is not otherwise intended to 

address any other issues, and the 

Exchange is not aware of any problems 

that member organizations or others 

would have in complying with the 

proposed rule change. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

the provisions of Section 6 of the Act,13

in general, and Sections 6(b)(4) and 

6(b)(5) of the Act,14 in particular, in that 

it provides an equitable allocation of 

reasonable fees among users and 

recipients of the data and is not 

designed to permit unfair 

discrimination among customers, 

issuers, and brokers. The Exchange also 

believes that the proposed rule change 

is consistent with Section 11(A) of the 

Act 15 in that it is consistent with (i) fair 

competition among brokers and dealers, 

among exchange markets, and between 

exchange markets and markets other 

than exchange markets; and (ii) the 

availability to brokers, dealers, and 

investors of information with respect to 

quotations for and transactions in 

securities. Furthermore, the proposed 

rule change is consistent with Rule 603 

of Regulation NMS,16 which provides 

that any national securities exchange 

that distributes information with respect 

to quotations for or transactions in an 

NMS stock do so on terms that are not 

unreasonably discriminatory. 


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17See Regulation NMS Adopting Release, 70 FR 

37495, at 37499. 

18NetCoalition v. SEC, 615 F.3d 525, 535 (D.C. 

Cir. 2010) (‘‘NetCoalition I’’) (quoting H.R. Rep. No. 

94–229 at 92 (1975), as reprinted in 1975 

U.S.C.C.A.N. 323). 

19 Id. at 535. 

20See Securities Exchange Act Release No. 34– 

90217 (October 16, 2020), 85 FR 67392 (October 22, 

2020) (SR–NYSENAT–2020–05) (‘‘National IF 

Approval Order’’) (internal quotation marks 

omitted), quoting Securities Exchange Act Release 

No. 59039 (December 2, 2008), 73 FR 74770, 74781 

(December 9, 2008) (‘‘2008 ArcaBook Approval 

Order’’). 

21NetCoalition I, 615 F.3d at 544 (internal 

quotation omitted). 

22 Id. 

23See Securities Exchange Act Release No. 61358, 

75 3594, 3597 (January 21, 2010) (File No. S7–02– 

10) (Concept Release on Equity Market Structure). 

24See Cboe Global Markets, U.S. Equities Market 

Volume Summary, available at http://

markets.cboe.com/us/equities/market_share/. 

25See FINRA ATS Transparency Data, available 

at https://otctransparency.finra.org/ 

otctransparency/AtsIssueData. A list of alternative 

trading systems registered with the Commission is 

available at https://www.sec.gov/foia/docs/ 

atslist.htm. 

26See Cboe Global Markets, U.S. Equities Market 

Volume Summary, available at http://

markets.cboe.com/us/equities/market_share/. 

27See LTSE Market Announcement: MA–2020– 

020, dated August 14, 2020, announcing LTSE 

production securities phase-in planned for August 

28, available here: https://assets-global.websitefiles.com/6462417e8db99f8baa06952c/

6462417e8db99f8baa0698e7_MA-2020-020__

Production_Securities_Launching_August_28_-_

Google_Docs.pdf and LTSE Market Announcement: 

MA–2020–025, available here: https://assetsglobal.website-files.com/6462417e8db99f8

baa06952c/6462417e8db99f8baa069873_MA-2020- 

025.pdf. 

28As of October 29, 2020, MEMX is trading all 

NMS symbols. See https://info.memxtrading.com/ 

trader-alert-20-10-memx-trading-symbols-update/. 

29See MIAX Pearl Press release, dated September 

29, 2020, available here: https://

www.miaxoptions.com/sites/default/files/alert-files/ 

MIAX_Press_Release_09292020.pdf. 

30 15 U.S.C. 78s(b)(3)(A). 

31 17 CFR 240.19b–4(f)(2). 

The Proposed Rule Change Is 

Reasonable 

In adopting Regulation NMS, the 

Commission granted SROs and brokerdealers increased authority and 

flexibility to offer new and unique 

market data to the public. 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.’’ 17

With respect to market data, the 

decision of the United States Court of 

Appeals for the District of Columbia 

Circuit in NetCoalition v. SEC upheld 

the Commission’s reliance on the 

existence of competitive market 

mechanisms to evaluate the 

reasonableness and fairness of fees for 

proprietary market data: 

In fact, the legislative history indicates that 

the Congress intended that the market system 

‘‘evolve through the interplay of competitive 

forces as unnecessary regulatory restrictions 

are removed’’ and that the SEC wield its 

regulatory power ‘‘in those situations where 

competition may not be sufficient,’’ such as 

in the creation of a ‘‘consolidated 

transactional reporting system.’’ 18

The court agreed with the 

Commission’s conclusion that 

‘‘Congress intended that ‘competitive 

forces should dictate the services and 

practices that constitute the U.S. 

national market system for trading 

equity securities.’ ’’ 19

More recently, the Commission 

confirmed that it applies a ‘‘marketbased’’ test in its assessment of market 

data fees, and that under that test: 

the Commission considers whether the 

exchange was subject to significant 

competitive forces in setting the terms of its 

proposal for [market data], including the 

level of any fees. If an exchange meets this 

burden, the Commission will find that its fee 

rule is consistent with the Act unless there 

is a substantial countervailing basis to find 

that the terms of the rule violate the Act or 

the rules thereunder.20

As discussed below, the Exchange 

believes that its proposed fees are 

constrained by competitive forces. 

As the D.C. Circuit recognized in 

NetCoalition I, ‘‘[n]o one disputes that 

competition for order flow is fierce.’’ 21

The court further noted that ‘‘no 

exchange possesses a monopoly, 

regulatory or otherwise, in the execution 

of order flow from broker dealers,’’ and 

that an exchange ‘‘must compete 

vigorously for order flow to maintain its 

share of trading volume.’’ 22

As noted above, while Regulation 

NMS has enhanced competition, it has 

also fostered a ‘‘fragmented’’ market 

structure where trading in a single stock 

can occur across multiple trading 

centers. When multiple trading centers 

compete for order flow in the same 

stock, the Commission has recognized 

that ‘‘such competition can lead to the 

fragmentation of order flow in that 

stock.’’ 23 Indeed, today, equity trading 

is currently dispersed across 16 

exchanges,24 numerous alternative 

trading systems,25 broker-dealer 

internalizers and wholesalers, all 

competing for order flow. Based on 

publicly-available information, no 

single exchange currently has more than 

20% market share.26

Further, low barriers to entry mean 

that new exchanges may rapidly and 

inexpensively enter the market to 

compete with the Exchange. For 

example, since 2020, three new ones 

have entered the market: Long Term 

Stock Exchange (LTSE), which began 

operations as an exchange on August 28, 

2020; 27 Members Exchange (MEMX), 

which began operations as an exchange 

on September 29, 2020; 28 and Miami 

International Holdings (MIAX), which 

began operations of its first equities 

exchange on September 29, 2020.29

More specifically, in setting fees for 

the Pillar Depth data feed, the Exchange 

is constrained by the fact that, if its 

pricing is unattractive to customers, 

customers have their pick of alternatives 

to purchase similar data from instead of 

purchasing it from the Exchange. The 

existence of alternatives to the 

Exchange’s data product ensures that 

the Exchange cannot set unreasonable 

market data fees without suffering the 

negative effects of that decision in the 

competitive market for non-latencysensitive proprietary partial depth of 

book market data. 

The Exchange further believes that 

requiring market data recipients to 

separately pay for the five underlying 

data feeds to Pillar Depth is reasonable 

because by design, Pillar Depth 

represents an aggregated and 

consolidated version of those existing 

five data feeds. The Exchange notes that 

it is not seeking with this filing to 

establish fees relating to the underlying 

five Aggregated Lite data feeds, as those 

fees have been established consistent 

with Section 19(b)(3)(A) of the Act 30

and Rule 19b–4(f)(2) 31 thereunder, and 

which may be amended from time to 

time. However, the Exchange believes it 

would be unfair if it did not require 

Pillar Depth data feed recipients to 

separately pay for those five feeds 

because otherwise, Pillar Depth data 

feed recipients would be receiving a 

data product that includes such 

underlying data at a lower cost than 

separately subscribing to the underlying 

data feeds. Similarly, the Exchange 

believes that it would be reasonable to 

charge separate Professional User or 

Non-Professional User fees if a market 

data recipient chooses to receive both 

Pillar Depth and a separate 

dissemination of the five underlying 

data feeds in a non-consolidated form. 

The Exchange believes that such 

delivery would constitute two separate 

uses of the underlying data feeds and 

thus should be charged accordingly, 

consistent with the existing fee schedule 


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32See Securities Exchange Act Release No. 73816 

(December 11, 2014), 79 FR 75200 (December 17, 

2014) (Notice of Filing and Immediate Effectiveness 

of Proposed Rule Change To Establish an Access 

Fee for the NYSE Best Quote & Trades Data Feed) 

(SR–NYSE–2014–64). 

33See Securities Exchange Act Release Nos. 

72750 (August 4, 2014), 79 FR 46494 (August 8, 

2014) (notice—NYSE BQT); and 73553 (November 

6, 2014), 79 FR 67491 (November 13, 2014) 

(approval order—NYSE BQT) (SR–NYSE–2014–40) 

(‘‘NYSE BQT Filing’’). In 2018, NYSE BQT was 

amended to include NYSE National BBO and NYSE 

National Trades. See Securities Exchange Act 

Release No. 83359 (June 1, 2018), 83 FR 26507 (June 

7, 2018) (SR–NYSE–2018–22). In 2019, NYSE BQT 

was amended to include NYSE Chicago BBO and 

NYSE Chicago Trades. See Securities Exchange Act 

Release No. 87511 (November 12, 2019), 84 FR 

63689 (November 18, 2019) (SR–NYSE–2019–60). 

34See Securities Exchange Act Release No. 82121 

(November 30, 2017), 82 FR 57627 (December 6, 

22017) (Notice of Filing and Immediate 

Effectiveness of Proposed Rule Change To Amend 

the Fees for NYSE BBO and NYSE Trades To Lower 

the Enterprise Fee, and for NYSE BQT To Lower the 

Access Fee) (SR–NYSE–2017–60). 

35The Exchange notes that broker-dealers are not 

required to purchase proprietary market data to 

comply with their best execution obligations. See In 

the Matter of the Application of Securities Industry 

and Financial Markets Association for Review of 

Actions Taken by Self-Regulatory Organizations, 

Release Nos. 34–72182; AP–3–15350; AP–3–15351 

(May 16, 2014). Similarly, there is no requirement 

in Regulation NMS or any other rule that 

proprietary data be utilized for order routing 

decisions, and some broker-dealers and ATSs have 

chosen not to do so. 

36For example, in the National IF Approval 

Order, the Commission recognized that for some 

customers, the best bid and offer information from 

consolidated data feeds may function as a substitute 

for the NYSE National Integrated Feed product, 

which contains order by order information. See 

National IF Approval Order, supra note 20, at 67397 

[release p. 21] (‘‘[I]nformation provided by NYSE 

National demonstrates that a number of executing 

broker-dealers do not subscribe to the NYSE 

National Integrated Feed and executing brokerdealers can otherwise obtain NYSE National best 

bid and offer information from the consolidated 

data feeds.’’ (internal quotations omitted)). 

37See BZX Rule 11.22(j); BYX Rule 11.22(i); 

EDGA Rule 13.8(b); and EDGX Rule 13.8(b). The 

Cboe One Feed offered by BZX, BYX, EDGA and 

EDGX is a data feed that contains the aggregate best 

bid and offer of all displayed orders for securities 

traded on the Cboe exchanges. The Cboe One Feed 

also contains the individual last sale information, 

consolidated volume, the primary listing market’s 

official opening and closing price, and the current 

day consolidated high and low price for all listed 

equity securities. Cboe One Feed recipients may 

also elect to receive aggregated two-sided 

quotations from the Cboe exchanges for five (5) 

price levels (‘‘Cboe One Premium Feed’’). 

38Fees for the Cboe One Premium Feed are 

available at https://www.cboe.com/market_data_

services/us/equities/cboe_one/. 

for those market data products. The 

Exchange therefore believes that the 

proposed fee structure for Pillar Depth 

would not be lower than the cost to 

another party to create a comparable 

product, including the cost of receiving 

the underlying data feeds. 

The Exchange notes that its proposed 

fee structure is similar to the fee 

structure for the NYSE BQT data feed.32

The NYSE BQT data feed provides best 

bid and offer (‘‘BBO’’) and last sale 

information (‘‘Trades’’) for the Exchange 

and its affiliates, NYSE Arca, NYSE 

American, NYSE Chicago and NYSE 

National. NYSE BQT consists of certain 

data elements from ten market data 

feeds—NYSE Trades, NYSE BBO, NYSE 

Arca Trades, NYSE Arca BBO, NYSE 

American Trades, NYSE American BBO, 

NYSE Chicago Trades, NYSE Chicago 

BBO, NYSE National Trades and NYSE 

National BBO.33 To receive NYSE BQT, 

a market data recipient must pay the 

applicable fee for the ten data feeds 

underlying NYSE BQT, and an Access 

Fee of $250 per month.34

The Exchange notes that Pillar Depth 

is entirely optional. The Exchange is not 

required to make Pillar Depth available 

to any customers, nor is any customer 

required to purchase the Pillar Depth 

data feed. Unlike some other data 

products (e.g., the consolidated 

quotation and last-sale information 

feeds) that firms are required to 

purchase in order to fulfil regulatory 

obligations,35 a customer’s decision 

whether to purchase Pillar Depth is 

entirely discretionary. The Exchange 

believes that Pillar Depth would provide 

high-quality, comprehensive partial 

depth of book data for the Exchange, 

NYSE Arca, NYSE American, NYSE 

Chicago and NYSE National in a unified 

view that an anticipated end user might 

use for purposes of identifying an 

indicative price of Tape A, B and C 

securities through leveraging the depth 

and breadth of NYSE, NYSE Arca, NYSE 

American, NYSE Chicago and NYSE 

National without having to purchase 

consolidated data and thus it would not 

be a latency-sensitive product. The 

Exchange does not anticipate that an 

end user would, or could, use Pillar 

Depth data for purposes of making 

order-routing or trading decisions. 

Firms that choose to subscribe to Pillar 

Depth are able to determine for 

themselves whether Pillar Depth is 

necessary for their business needs, and 

if so, whether or not it is attractively 

priced. If Pillar Depth does not provide 

sufficient benefit to firms based on the 

uses those firms may have for it, such 

firms may simply choose to conduct 

their business operations in ways that 

do not use Pillar Depth. 

In setting the proposed fees for Pillar 

Depth, the Exchange considered the 

competitiveness of the market for nonlatency-sensitive proprietary partial 

depth of book data and all of the 

implications of that competition. The 

Exchange believes that it has considered 

all relevant factors and has not 

considered irrelevant factors in order to 

establish reasonable fees. The proposed 

fees are therefore reasonable because in 

setting them, the Exchange is 

constrained by the availability of 

substitute partial depth of book market 

data products. The Commission has 

been clear that such substitutes need not 

be identical, but only substantially 

similar to the product at hand.36

The four U.S. equities exchanges 

operated by Cboe Exchange, Inc.—Cboe 

BZX Exchange, Inc. (‘‘BZX’’), Cboe BYX 

Exchange, Inc. (‘‘BYX’’), Cboe EDGA 

Exchange, Inc. (‘‘EDGA’’), and Cboe 

EDGX Exchange, Inc. (‘‘EDGX’’), 

currently offer a market data product 

called the Cboe One Premium Feed,37

which competes with the Pillar Depth 

data feed. Similar to the Cboe One 

Premium Feed, Pillar Depth can be 

utilized by vendors and subscribers to 

quickly access and distribute aggregated 

order book data. As noted above, Pillar 

Depth, similar to Cboe One Premium 

Feed, would provide aggregated depth 

per security, including the bid, ask and 

share quantity for orders received by the 

NYSE Group markets. The Exchange 

believes that Pillar Depth will offer a 

competitive alternative to the Cboe One 

Premium Feed.38

The fees that are the subject of this 

rule filing are constrained by 

competition. As explained below in the 

Exchange’s Statement on Burden on 

Competition, the existence of 

alternatives to these data products 

further ensures that the Exchange 

cannot set unreasonable fees, or fees 

that are unreasonably discriminatory, 

when vendors and subscribers can elect 

such alternatives. That is, the Exchange 

competes with other exchanges (and 

their affiliates) that provide similar 

market data products. If another 

exchange (or its affiliate) were to charge 

less to consolidate and distribute its 

similar product than the Exchange 

charges to consolidate and distribute 

Pillar Depth, prospective users likely 

would not subscribe to, or would cease 

subscribing to, Pillar Depth. 

The Proposed Fees Are Equitably 

Allocated and Are Not Unfairly 

Discriminatory 

The Exchange believes that the 

proposed fee is equitable and nondiscriminatory in that it would apply 

uniformly to all recipients of Exchange 

data. The Exchange also believes the 

proposed fee is competitive with those 

charged by other venues and, therefore, 

reasonable and equitably allocated to 

recipients. The Exchange also notes that 

the proposed fee is not designed to 

permit unfair discrimination because all 

market data recipients that subscribe to 


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Federal Register / Vol. 89, No. 224 / Wednesday, November 20, 2024 / Notices 91821 

39 78 U.S.C. 78f(b)(8). 

40See Pillar Depth Product Filing, supra note 5. 41See supra, note 37. 

42 15 U.S.C. 78s(b)(3)(A)(ii). 

43 17 CFR 240.19b–4. 

Pillar Depth would be charged the same 

fee. The Exchange further believes that 

the proposed Pillar Depth fee structure 

is equitable and not unfairly 

discriminatory because all vendors and 

subscribers that elect to purchase Pillar 

Depth would be charged the same fees. 

In addition, vendors and subscribers 

that do not wish to purchase Pillar 

Depth may separately purchase the five 

individual underlying products, and if 

they so choose, perform a similar 

aggregation and consolidation function 

that the Exchange performs in creating 

Pillar Depth. To enable such 

competition, the Exchange is offering 

Pillar Depth on terms that a subscriber 

of those five feeds could offer a 

competing product if it so chooses. 

For these reasons, the Exchange 

believes that the proposed fees are 

reasonable, equitable, and not unfairly 

discriminatory. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

In accordance with Section 6(b)(8) 39

of the Act, the Exchange does not 

believe that the proposed rule change 

will impose any burden on competition 

that is not necessary or appropriate in 

furtherance of the purposes of the Act. 

As noted above, the Pillar Depth data 

feed represents aggregated and 

consolidated information from five 

existing market data feeds. Although the 

Exchange, NYSE American, NYSE Arca, 

NYSE Chicago and NYSE National are 

the exclusive distributors of the five 

Aggregated Lite data feeds from which 

certain data elements are taken to create 

Pillar Depth, the Exchange may not be 

the exclusive distributor of the 

aggregated and consolidated 

information that comprises the Pillar 

Depth data feed. Any other market 

participant recipient of the five 

Aggregated Lite feeds would be able, if 

it chose, to create a data feed with the 

same information as Pillar Depth and 

distribute it to their clients on a levelplaying field with respect to latency and 

cost as compared to the Exchange’s 

product.40

Intramarket Competition. The 

Exchange believes that the proposed 

fees do not put any market participant 

at a relative disadvantage compared to 

other market participant. As noted 

above, the proposed fees would apply 

equally to all subscribers of Pillar 

Depth, and subscribers may choose 

whether to subscribe to Pillar Depth at 

all. The Exchange also believes that the 

proposed fees neither favor nor penalize 

one or more categories of market 

participants in a manner that would 

impose an undue market on 

competition. 

Intermarket Competition. The 

Exchange believes that the proposed 

monthly Access Fee the Exchange 

proposes to charge subscribers for Pillar 

Depth would be pro-competitive 

because another market data recipient 

could perform a similar aggregating and 

consolidating function and similarly 

charge for such service. The Exchange 

notes that a competing vendor might 

engage in a different analysis of 

assessing the cost of a competing 

product, which may incorporate passing 

through fees associated with co-location 

at the Mahwah, New Jersey data center. 

However, the incremental co-location 

costs to a particular vendor may be 

inconsequential if such vendor is 

already co-located and is able to allocate 

its co-location costs over numerous 

product and customer relationships. 

The Exchange therefore believes that a 

competing vendor could create and offer 

a product similar to the Pillar Depth 

data feed at a similar cost. For these 

reasons, the Exchange believes that 

vendors could readily offer a product 

similar to Pillar Depth on a competitive 

basis. 

Specifically, the Exchange believes 

that the proposed fees do not impose a 

burden on competition or on other 

exchanges that is not necessary or 

appropriate because of the availability 

of substitute partial depth of book 

market data products. As described 

above, Pillar Depth would compete with 

the Cboe One Premium Feed.41 These 

products each serve as reasonable 

substitutes for one another as they are 

each designed to provide investors with 

a unified view of quotes in all Tape A, 

B, and C securities. Each product 

provides subscribers with aggregated 

and consolidated quotes from multiple 

U.S. equities markets. Pillar Depth 

provides partial depth of book data from 

five NYSE-affiliated U.S. equities 

exchanges, while Cboe One Premium 

Feed similarly provides partial depth of 

book data from Cboe’s four U.S. equities 

exchanges. Pillar Depth and Cboe One 

Premium Feed are intended to provide 

indicative pricing and therefore, are 

reasonable substitutes for one another. 

In setting the fee for the Pillar Depth, 

the Exchange is constrained by the fact 

that if its pricing is unattractive, 

customers will have their pick of 

alternative partial depth of book market 

data products to purchase instead of 

purchasing the Exchange’s product. 

Because market data users can find 

suitable substitute feeds, an exchange 

that overprices its market data products 

stands a high risk that users may 

substitute another source of market data 

information for its own. These 

competitive pressures ensure that no 

one exchange’s market data fees can 

impose an unnecessary burden on 

competition, and the Exchange’s 

proposed fees do not do so here. 

As such, in establishing the proposed 

fees, the Exchange considered the 

competitiveness of the market for nonlatency-sensitive proprietary partial 

depth of book data and all of the 

implications of that competition. The 

Exchange believes that it has considered 

all relevant factors and has not 

considered irrelevant factors in order to 

establish fair, reasonable, and not 

unreasonably discriminatory fees and an 

equitable allocation of fees among all 

users. The existence of alternatives to 

Pillar Depth, including the five 

underlying feeds, consolidated data, and 

proprietary data from other sources, 

ensures that the Exchange cannot set 

unreasonable fees, or fees that are 

unreasonably discriminatory, when 

vendors and subscribers can elect these 

alternatives or choose not to purchase a 

specific proprietary data product if its 

cost to purchase is not justified by the 

returns any particular vendor or 

subscriber would achieve through the 

purchase. 

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 

Pursuant to Section 19(b)(3)(A)(ii) of 

the Act,42 and Rule 19b–4(f)(2) 

thereunder 43 the Exchange has 

designated this proposal as establishing 

or changing a due, fee, or other charge 

imposed on any person, whether or not 

the person is a member of the selfregulatory organization, which renders 

the proposed rule change effective upon 

filing. 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. 


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91822 Federal Register / Vol. 89, No. 224 / Wednesday, November 20, 2024 / Notices 

44 17 CFR 200.30–3(a)(12). 

1See Precidian ETFs Trust, et al., Investment 

Company Act Release No. 33440 (April 8, 2019) 

(notice) and Investment Company Act Release No. 

33477 (May. 20, 2019) (order). Except as specifically 

noted in the application for the Amended Order, all 

representations and conditions contained in the 

application first submitted with the Commission 

(File No. 812–14405), as amended and restated, and 

filed with the Commission on April 4, 2019 (the 

‘‘First Application’’), remain applicable to the 

operation of the Funds and will apply to any Funds 

relying on the Amended Order. 

2The relief granted under section 12(d)(1)(J) of 

the Act for an exemption from sections 12(d)(1)(A) 

and 12(d)(1)(B) of the Act (the ‘‘Section 12(d)(1) 

Relief’’), and relief under sections 6(c) and 17(b) of 

the Act for an exemption from sections 17(a)(1) and 

17(a)(2) of the Act relating to the Section 12(d)(1) 

Relief, expired on January 19, 2022. See Fund of 

Funds Arrangements, Investment Company Act Rel. 

No. 10871 (Oct. 7, 2020), at III. 

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– 

NYSE–2024–72 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–NYSE–2024–72. 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–2024–72 and should be 

submitted on or before December 11, 

2024. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.44

Vanessa A. Countryman, 

Secretary. 

[FR Doc. 2024–27016 Filed 11–19–24; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

35386; 812–15179–01] 

Precidian ETF Trust II, et al. 

November 14, 2024. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Notice of an application to 

amend a prior order for exemptive 

relief. 

Summary of Application: Applicants 

request an order (‘‘Amended Order’’) 

that would amend a prior order to 

permit a Fund to use Creation Baskets 

(as defined below) that include 

instruments that are not included, or 

that are included with different 

weightings, in the Fund’s Pro Rata 

Basket (as defined below). 

Applicants: Precidian ETF Trust II 

(‘‘Trust’’), Precidian Funds LLC, and 

Foreside Fund Services, LLC 

(collectively, the ‘‘Applicants’’). 

Filing Dates: The application was 

filed on November 24, 2020, and 

amended on January 14, 2022, March 

28, 2022, September 2, 2022, December 

13, 2023, April 15, 2024, and November 

8, 2024. 

Hearing or Notification of Hearing: An 

order granting the requested relief will 

be issued unless the Commission orders 

a hearing. Interested persons may 

request a hearing by emailing the 

Commission’s Secretary at SecretarysOffice@sec.gov and serving Applicants 

with a copy of the request by email, if 

an email address is listed for the 

relevant Applicant below, or personally 

or by mail, if a physical address is listed 

for the relevant Applicant below. 

Hearing requests should be received by 

the Commission by 5:30 p.m. on 

December 9, 2024 and should be 

accompanied by proof of service on the 

Applicants in the form of an affidavit, 

or, for lawyers, a certificate of service. 

Pursuant to rule 0–5 under the 

Investment Company Act of 1940 

(‘‘Act’’), hearing requests should state 

the nature of the writer’s interest, any 

facts bearing upon the desirability of a 

hearing on the matter, the reason for the 

request, and the issues contested. 

Persons who wish to be notified of a 

hearing may request notification by 

emailing to the Commission’s Secretary. 

ADDRESSES: 

The Commission: Secretarys-Office@

sec.gov. 

Applicants: john.mcguire@

morganlewis.com. 

FOR FURTHER INFORMATION CONTACT: Kris 

Easter Guidroz, Senior Counsel; Trace 

Rakestraw, Senior Special Counsel, at 

(202) 551–6825 (Division of Investment 

Management, Chief Counsel’s Office). 

SUPPLEMENTARY INFORMATION: For 

Applicants’ representations, legal 

analysis, and conditions, please refer to 

Applicants’ sixth amended and restated 

application, dated November 8, 2024, 

which may be obtained via the 

Commission’s website by searching for 

the file number at the top of this 

document, or for an Applicant using the 

Company name search field on the 

SEC’s EDGAR system. The SEC’s 

EDGAR system may be searched at 

https://www.sec.gov/edgar/searchedgar/ 

legacy/companysearch.html. You may 

also call the SEC’s Public Reference 

Room at (202) 551–8090. 

I. Introduction 

1. On May 20, 2019, the Commission 

issued an order 1 under section 6(c) of 

the Act for an exemption from sections 

2(a)(32), 5(a)(1), and 22(d) of the Act 

and rule 22c–1 under the Act, under 

sections 6(c) and 17(b) of the Act for an 

exemption from sections 17(a)(1) and 

17(a)(2) of the Act, and under section 

12(d)(1)(J) of the Act for an exemption 

from sections 12(d)(1)(A) and 

12(d)(1)(B) of the Act (the ‘‘Prior 

Order’’).2 The Prior Order permits 

Applicants to operate actively-managed 

exchange-traded funds (‘‘ETFs’’) that are 

not required to disclose their full 

portfolio holdings on a daily basis (each, 

a ‘‘Fund’’). Rather, pursuant to the Prior 

Order, each Fund disseminates a 

‘‘verified intraday indicative value,’’ or 


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