[Federal Register Volume 81, Number 200 (Monday, October 17, 2016)]
[Rules and Regulations]
[Pages 71360-71365]
[FR Doc No: 2016-24445]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 97

[Docket No.: FAA-2015-0783; Amdt. No. 97-1338]
RIN 2120-AA65

Cancellation of Standard Instrument Approach Procedures as Part
of the National Procedures Assessment (NPA) Initiative

AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: The FAA is issuing a final rule that removes certain redundant
or underutilized ground-based nondirectional radio beacon (NDB) and VHF
omnidirectional range (VOR) Standard Instrument Approach Procedures
(SIAPs). On April 13, 2015, the FAA published a notice of proposed
rulemaking to remove 736 SIAPs. This final rule addresses 125 of the
198 procedures for which comments were received.

DATES: This rule is effective at 0901 UTC on November 10, 2016.

ADDRESSES: For information on where to obtain copies of rulemaking
documents and other information related to this final rule, see ``How
To Obtain Additional Information'' in the SUPPLEMENTARY INFORMATION
section of this document.

FOR FURTHER INFORMATION CONTACT: Dana Mitchell, Aeronautical
Information Services, AJV-5, Federal Aviation Administration, Air
Traffic Organization, 1305 East-West Highway, Room 5257, Silver Spring,
MD 20910; Telephone<PHONE_NUMBER>; Email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules on aviation safety is found in
Title 49 of the United States Code. Subtitle I, Section 106 describes
the authority of the FAA Administrator. Subtitle VII, Aviation
Programs, describes in more detail the scope of the agency's authority.
    This rulemaking is promulgated under the authority described in
Subtitle VII, Part A, Subpart i, Section 40103, sovereignty and use of
airspace, and Subpart iii, Section 44701, general requirements. Under
these sections, the FAA is charged with prescribing regulations to
regulate the safe and efficient use of the navigable airspace; to
govern the flight, navigation, protection, and identification of
aircraft for the protection of persons and property on the ground, and
for the efficient use of the navigable airspace (49 U.S.C. 40103(b)),
and to promote safe flight of civil aircraft in air commerce by
prescribing regulations and minimum standards for other practices,
methods, and procedures necessary for safety in air commerce and
national security (49 U.S.C. 44701(a)(5)). This action is within the
scope of that authority.
    SIAPs are promulgated by rulemaking procedures and are incorporated
by reference into 14 CFR 97.20.

Background

    On June 27, 2014, the FAA published criteria for determining
whether to retain existing SIAPs (79 FR 36576). Removing identified
ground-based NDB and VOR SIAPs is an integral part of right-sizing the
quantity and type of procedures in the National Airspace System (NAS).
As new technology facilitates the introduction of area navigation
(RNAV) instrument approach procedures, the number of procedures
available in the NAS has nearly doubled over the past decade. The
complexity and cost of maintaining the existing ground based
navigational infrastructure while expanding RNAV capability is not
sustainable.
    On April 13, 2015, the FAA published a notice of proposed
rulemaking (NPRM) proposing to remove certain SIAPs (80 FR 19577). The
NPRM included a list of 736 procedures that were identified for
cancellation and the comment period closed on May 28, 2015. The FAA
received comments on 198 of those procedures. Of those 198 procedures,
125 are being addressed in this final rule. The remaining 73 require
additional evaluation and will be addressed in a subsequent Federal
Register document.
    It should be noted that NPA Instrument Flight Procedure (IFP)
cancellation activities, and associated criteria, do not supersede
similar activities being performed under the FAA's Very-High Frequency
Omni-Directional Range Minimum Operational Network (VOR MON) Program
(see 81 FR 48694 (July 26, 2016)). However, NPA IFP cancellation
activities have been coordinated with the FAA office responsible for
the VOR MON implementation program, as their input has been thoroughly
considered.

SIAPs Being Processed for Cancellation

    The following 8 SIAPs were proposed for cancellation in the NPRM:
VOR/DME RWY 25, Alaska (GAL); VOR RWY 18, AL (DCU); VOR RWY 18,
Illinois

(CMI); VOR/DME-D, TX (BPT); VOR-A, TX (BPT); VOR-B, TX (BPT); VOR-C, TX
(BPT); NDB RWY 27, WY (CYS). In reviewing the procedures and comments,
the FAA realized that these 8 procedures were already being processed
for cancellation and were at various stages in that process. As such,
the inclusion of these procedures in the NPRM was in error as they were
already subject to prior agency commitments. The FAA notes all of these
procedures received comment concerning the use of airport as an
alternate, IFR training need, or backup SIAP for ILS OR LOC SIAP. The
FAA confirms that, with the exception of GAL VOR/DME RWY 25, for each
of the above affected procedures, the airports continue to maintain at
least one other ground based procedure. In addition, there remain
procedures available within a 20 nm radius of these airports for
instrument flight training/proficiency. The procedures are listed below
with the associated Federal Register citation announcing the
cancellation.

----------------------------------------------------------------------------------------------------------------
               State                         Airport name                 ID              Approach procedure
----------------------------------------------------------------------------------------------------------------
AK.................................  EDWARD G PITKA SR..........  GAL                VOR/DME RWY 25 (81 FR
                                                                                51339; August 4, 2016).
IL.................................  UNIVERSITY OF ILLINOIS-      CMI                VOR RWY 18 (81 FR 10081;
                                      WILLARD.                                        February 29, 2016).
TX.................................  JACK BROOKS RGNL...........  BPT                VOR/DME-D (81 FR 32639; May
                                                                                24, 2016).
TX.................................  JACK BROOKS RGNL...........  BPT                VOR-A (81 FR 32639; May 24,
                                                                                2016).
TX.................................  JACK BROOKS RGNL...........  BPT                VOR-B (81 FR 32639; May 24,
                                                                                2016).
TX.................................  JACK BROOKS RGNL...........  BPT                VOR-C (81 FR 32639; May 24,
                                                                                2016).
WY.................................  CHEYENNE RGNL/JERRY OLSON    CYS                NDB RWY 27 (81 FR 32639;
                                      FIELD.                                          May 24, 2016).
TX.................................  BROWNSVILLE/SOUTH PADRE      BRO                VOR/DME RNAV OR GPS RWY 35
                                      ISLAND INTL.                                    (81 FR 58390; August 25,
                                                                                2016).
----------------------------------------------------------------------------------------------------------------

Summary of Comments

SIAPs Remaining in Effect

    Prior to the comment review process, because of the possibility of
SIAP inventory changes, all procedures were again reviewed for
compliance with the initial cancellation criteria as stated in the
notice of policy published June 27, 2014. The following 2 procedures
did not meet the stated criteria and, therefore, will remain in effect
and are not included in this final rule; however the FAA may reevaluate
these procedures at a later date.

----------------------------------------------------------------------------------------------------------------
               State                         Airport name                 ID              Approach procedure
----------------------------------------------------------------------------------------------------------------
IA.................................  FORT DODGE RGNL............  FOD                VOR RWY 12.
PA.................................  CARLISLE...................  N94                NDB-B.
----------------------------------------------------------------------------------------------------------------

    The following 2 procedures have been requested by the FAA's Very-
High Frequency Omni-Directional Range Minimum Operational Network (VOR
MON) Program to remain in effect and are not included in this final
rule; however the FAA may reevaluate these procedures at a later date.

----------------------------------------------------------------------------------------------------------------
               State                         Airport name                 ID              Approach procedure
----------------------------------------------------------------------------------------------------------------
MI.................................  GERALD R. FORD INTL........  GRR                VOR RWY 17.
WI.................................  BURLINGTON MUNI............  BUU                VOR-A.
----------------------------------------------------------------------------------------------------------------

    The following 18 procedures have been requested by the Department
of Defense to remain in effect and are not included in this final rule;
however the FAA may reevaluate these procedures at a later date.

----------------------------------------------------------------------------------------------------------------
               State                         Airport name                 ID              Approach procedure
----------------------------------------------------------------------------------------------------------------
IL.................................  ST LOUIS RGNL..............  ALN                VOR-A.
IL.................................  UNIVERSITY OF ILLINOIS-      CMI                VOR/DME RWY 14L.
                                      WILLARD.
IL.................................  GREATER KANKAKEE...........  IKK                VOR RWY 04.
IL.................................  ABRAHAM LINCOLN CAPITAL....  SPI                VOR/DME RWY 04.
IL.................................  ABRAHAM LINCOLN CAPITAL....  SPI                VOR/DME RWY 22.
IL.................................  ABRAHAM LINCOLN CAPITAL....  SPI                VOR/DME RWY 31.
IN.................................  FORT WAYNE INTL............  FWA                VOR OR TACAN RWY 05.
IN.................................  FORT WAYNE INTL............  FWA                VOR OR TACAN RWY 14.
MO.................................  ROSECRANS MEMORIAL.........  STJ                VOR OR TACAN RWY 17.
MO.................................  ROSECRANS MEMORIAL.........  STJ                VOR/DME OR TACAN RWY 35.
TX.................................  ALICE INTL.................  ALI                VOR-A.
TX.................................  JACK BROOKS RGNL...........  BPT                VOR RWY 12.
TX.................................  VALLEY INTL................  HRL                VOR/DME RWY 17R.
TX.................................  VALLEY INTL................  HRL                VOR/DME RWY 35L.
TX.................................  MC ALLEN MILLER INTL.......  MFE                VOR RWY 13.
TX.................................  MC ALLEN MILLER INTL.......  MFE                VOR RWY 31.
TX.................................  PORT ISABEL-CAMERON COUNTY.  PIL                VOR-A.
MT.................................  GREAT FALLS INTL...........  GTF                NDB RWY 34.
----------------------------------------------------------------------------------------------------------------

    Numerous comments mentioned the need for a VOR or NDB procedure as
a ``backup'' in case a localizer-based procedure became unusable for
any reason. The FAA determined that, in the case of an airport having a
single instrument approach procedure using a localizer NavAid, or
multiple instrument approach procedures using a single localizer
NavAid, that a VOR or NDB procedure would be retained at that airport
in case the localizer NavAid became unusable. Due to this
determination, the following 25 procedures will remain in effect and
are not included in this final rule; however, the FAA may reevaluate
these procedures at a later date.

----------------------------------------------------------------------------------------------------------------
               State                         Airport name                 ID              Approach procedure
----------------------------------------------------------------------------------------------------------------
AR.................................  MENA INTERMOUNTAIN MUNI....  MEZ                VOR/DME-A.
CA.................................  ARCATA.....................  ACV                VOR/DME RWY 14.
CA.................................  EASTERN SIERRA RGNL........  BIH                VOR OR GPS-A.
CA.................................  BOB HOPE...................  BUR                VOR RWY 08.
CA.................................  BRACKETT FIELD.............  POC                VOR OR GPS-A.
CA.................................  SANTA MARIA PUB/CAPT G       SMX                VOR RWY 12.
                                      ALLAN HANCOCK FLD.
GA.................................  HEART OF GEORGIA RGNL......  EZM                VOR/DME-A.
GA.................................  THOMSON-MCDUFFIE COUNTY....  HQU                VOR/DME-A.
IA.................................  MASON CITY MUNI............  MCW                VOR RWY 36.
IA.................................  SPENCER MUNI...............  SPW                VOR/DME RWY 30.
IN.................................  TERRE HAUTE INTL-HULMAN      HUF                VOR RWY 23.
                                      FIELD.
KS.................................  PHILIP BILLARD MUNI........  TOP                VOR RWY 22.
MI.................................  BISHOP INTL................  FNT                VOR RWY 18.
MO.................................  CAPE GIRARDEAU RGNL........  CGI                VOR RWY 02.
MT.................................  BOZEMAN YELLOWSTONE INTL...  BZN                VOR RWY 12.
MT.................................  YELLOWSTONE................  WYS                NDB RWY 1.
NC.................................  LINCOLNTON-LINCOLN COUNTY    IPJ                NDB RWY 23.
                                      RGNL.
NH.................................  BOIRE FIELD................  ASH                VOR-A.
NV.................................  ELKO RGNL..................  EKO                VOR/DME-B.
OK.................................  RICHARD LLOYD JONES JR.....  RVS                VOR/DME-A.
TX.................................  MAJORS.....................  GVT                VOR/DME RWY 17.
TX.................................  NORTH TEXAS RGNL/PERRIN      GYI                VOR/DME-A.
                                      FIELD.
VA.................................  NEW RIVER VALLEY...........  PSK                VOR/DME RWY 06.
WA.................................  SNOHOMISH COUNTY (PAINE      PAE                VOR/DME RWY 16R.
                                      FLD).
WI.................................  CHIPPEWA VALLEY RGNL.......  EAU                VOR-A.
----------------------------------------------------------------------------------------------------------------

    Numerous comments mentioned the need for a VOR and/or NDB
procedures for IFR training and/or proficiency. To address that
concern, each procedure that received a comment(s) pertaining to IFR
training and/or proficiency was reviewed in the following manner: If
there was not a similar type (i.e., VOR, NDB) procedure at an airport
within 20NM of the airport containing the procedure in question, the
procedure in question would be retained. Based upon the method for
reviewing comments pertaining to IFR training and/or proficiency, the
following 11 procedures will remain in effect and are not included in
this final rule; however, the FAA may reevaluate these procedures at a
later date.

----------------------------------------------------------------------------------------------------------------
               State                         Airport name                 ID              Approach procedure
----------------------------------------------------------------------------------------------------------------
AK.................................  SOLDOTNA...................  SXQ                NDB RWY 25.
AK.................................  SOLDOTNA...................  SXQ                VOR/DME-A.
AK.................................  TALKEETNA..................  TKA                VOR-A.
AZ.................................  CHANDLER MUNI..............  CHD                NDB RWY 4R.
CA.................................  CATALINA...................  AVX                VOR OR GPS-A.
IA.................................  DUBUQUE RGNL...............  DBQ                VOR RWY 36.
KS.................................  NEWTON-CITY-COUNTY.........  EWK                VOR/DME-A.
LA.................................  RUSTON RGNL................  RSN                VOR/DME-A.
SD.................................  WATERTOWN RGNL.............  ATY                VOR OR TACAN RWY 17.
TX.................................  WHARTON RGNL...............  ARM                VOR/DME-A.
VA.................................  CULPEPER RGNL..............  CJR                NDB RWY 4.
----------------------------------------------------------------------------------------------------------------

    The following instrument flight procedures received comments that
were not substantive enough to warrant retention in the National
Airspace System IFP inventory. Some comments were general in nature,
expressing opposition to the cost of equipping their aircraft with GPS
equipment, while others expressed opposition to the decommissioning of
NavAids, which is unrelated to this final rule. Numerous comments
pertained to the cancellation of multiple procedures at each airport,
but those comments became insubstantial once another procedure at the
same airport was retained, as in the instances mentioned previously in
this final rule. Cancellation of the following 59 procedures is in
accordance with the criteria stated in the notice of policy published
June 27, 2014, as well as the criteria established for the provision
for IFR training/proficiency as stated earlier in this final rule.

----------------------------------------------------------------------------------------------------------------
               State                         Airport name                 ID              Approach procedure
----------------------------------------------------------------------------------------------------------------
AK.................................  BETHEL.....................  BET                VOR/DME RWY 19R.
AR.................................  SPRINGDALE MUNI............  ASG                VOR RWY 18.

AR.................................  MEMORIAL FIELD.............  HOT                VOR Y RWY 05.
CA.................................  ARCATA.....................  ACV                VOR/DME RWY 01.
CA.................................  EASTERN SIERRA RGNL........  BIH                VOR/DME OR GPS-B.
CA.................................  BRAWLEY MUNI...............  BWC                VOR/DME-A.
CA.................................  LOS BANOS MUNI.............  LSN                VOR/DME RWY 14.
GA.................................  FULTON COUNTY AIRPORT-BROWN  FTY                NDB RWY 8.
                                      FIELD.
GA.................................  GWINNETT COUNTY-BRISCOE      LZU                NDB RWY 25.
                                      FIELD.
GA.................................  BARROW COUNTY..............  WDR                VOR/DME-A.
IA.................................  THE EASTERN IOWA...........  CID                VOR RWY 27.
IA.................................  THE EASTERN IOWA...........  CID                VOR/DME RWY 09.
IA.................................  MASON CITY MUNI............  MCW                VOR/DME RWY 18.
IA.................................  SPENCER MUNI...............  SPW                VOR/DME RWY 12.
ID.................................  BOISE AIR TERMINAL/GOWEN     BOI                VOR/DME RWY 10R.
                                      FLD.
ID.................................  BURLEY MUNI................  BYI                VOR/DME-B.
ID.................................  POCATELLO RGNL.............  PIH                VOR/DME RWY 21.
IL.................................  AURORA MUNI................  ARR                VOR RWY 15.
IL.................................  AURORA MUNI................  ARR                VOR RWY 33.
IL.................................  MOUNT VERNON...............  MVN                VOR RWY 23.
IN.................................  EVANSVILLE RGNL............  EVV                NDB RWY 22.
IN.................................  MARION MUNI................  MZZ                VOR RWY 22.
IN.................................  MARION MUNI................  MZZ                VOR RWY 4.
IN.................................  KOKOMO MUNI................  OKK                VOR RWY 23.
IN.................................  INDIANAPOLIS EXECUTIVE.....  TYQ                VOR/DME RWY 36.
LA.................................  BATON ROUGE METROPOLITAN-    BTR                NDB RWY 31.
                                      RYAN FIELD.
LA.................................  BATON ROUGE METROPOLITAN-    BTR                VOR/DME RWY 22R.
                                      RYAN FIELD.
LA.................................  RUSTON RGNL................  RSN                NDB RWY 36.
ME.................................  AUGUSTA STATE..............  AUG                VOR/DME RWY 08.
ME.................................  AUGUSTA STATE..............  AUG                VOR/DME RWY 17.
MI.................................  JACKSON COUNTY-REYNOLDS      JXN                VOR/DME RWY 24.
                                      FIELD.
MO.................................  CAPE GIRARDEAU RGNL........  CGI                VOR RWY 10.
MO.................................  MACON-FOWER MEMORIAL.......  K89                VOR/DME RWY 20.
MO.................................  SPIRIT OF ST LOUIS.........  SUS                NDB RWY 26L.
MO.................................  SPIRIT OF ST LOUIS.........  SUS                NDB RWY 8R.
MT.................................  BERT MOONEY................  BTM                VOR/DME OR GPS-A.
MT.................................  BOZEMAN YELLOWSTONE INTL...  BZN                VOR/DME RWY 12.
MT.................................  MISSION FIELD..............  LVM                VOR-A.
MT.................................  SIDNEY-RICHLAND MUNI.......  SDY                NDB RWY 1.
NC.................................  ELIZABETH CITY CG AIR        ECG                VOR/DME RWY 10.
                                      STATION/RGNL.
NE.................................  WAYNE MUNI/STAN MORRIS FLD.  LCG                NDB RWY 23.
NE.................................  NORFOLK RGNL/KARL STEFAN     OFK                VOR RWY 01.
                                      MEMORIAL FLD.
NH.................................  BOIRE FIELD................  ASH                NDB RWY 14.
NV.................................  ELKO RGNL..................  EKO                VOR-A.
NY.................................  CHAUTAUQUA COUNTY/DUNKIRK..  DKK                VOR RWY 06.
OK.................................  RICHARD LLOYD JONES JR.....  RVS                VOR RWY 1L.
TX.................................  NORTH TEXAS RGNL/PERRIN      GYI                NDB RWY 17L.
                                      FIELD.
TX.................................  DRAUGHON-MILLER CENTRAL      TPL                VOR RWY 15.
                                      TEXAS RGNL.
VA.................................  DANVILLE RGNL..............  DAN                VOR RWY 02.
VA.................................  NEW RIVER VALLEY...........  PSK                VOR-A.
VA.................................  ROANOKE RGNL/WOODRUM FIELD.  ROA                VOR RWY 34, formerly VOR/
                                                                                NDB RWY 34.
WA.................................  SNOHOMISH COUNTY (PAINE      PAE                VOR RWY 16R.
                                      FLD).
WI.................................  DANE COUNTY RGNL-TRUAX       MSN                VOR/DME OR TACAN RWY 14.
                                      FIELD.
WI.................................  DANE COUNTY RGNL-TRUAX       MSN                VOR/DME OR TACAN RWY 32.
                                      FIELD.
WI.................................  DANE COUNTY RGNL-TRUAX       MSN                VOR/DME OR TACAN RWY 18.
                                      FIELD.
WV.................................  GREENBRIER VALLEY..........  LWB                VOR RWY 04.
WY.................................  CASPER/NATRONA COUNTY INTL.  CPR                VOR/DME RWY 03.
WY.................................  EVANSTON-UINTA COUNTY BURNS  EVW                VOR/DME RWY 23.
                                      FIELD.
WY.................................  GILLETTE-CAMPBELL COUNTY...  GCC                VOR/DME RWY 34.
----------------------------------------------------------------------------------------------------------------

The Amendment

    SIAPs and associated supporting data adopted or removed by the FAA
are documented on FAA Forms 8260-3, 8260-4, and 8260-5, which are
incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14
CFR part 97. The FAA has determined that the 59 procedures listed above
should be removed consistent with FAA policy on maintaining instrument
approach procedures in the NAS.

Conclusion

    The FAA has determined that this final rule only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore--(1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979) and
(3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. For the same reason, the FAA
certifies that this amendment will not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.

Additional Information

A. Availability of Rulemaking Documents

    An electronic copy of rulemaking documents may be obtained from the
Internet by--
    1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies or
    3. Accessing the Government Publishing Office's Web page at http://www.gpo.gov/fdsys/.
    Copies may also be obtained by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW., Washington, DC 20591, or by calling<PHONE_NUMBER>. Persons
requesting additional information must identify the docket or amendment
number of this rulemaking.
    All documents the FAA considered in developing this rule, including
technical reports, may be accessed from the Internet through the
Federal eRulemaking Portal referenced in item (1) above.

B. Comments Submitted to the Docket

    Comments received may be viewed by going to http://www.regulations.gov and following the online instructions to search the
docket number for this action. Anyone is able to search the electronic
form of all comments received into any of the FAA's dockets by the name
of the individual submitting the comment (or signing the comment, if
submitted on behalf of an association, business, labor union, etc.).

C. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires FAA to comply with small entity requests for information
or advice about compliance with statutes and regulations within its
jurisdiction. A small entity with questions regarding this document,
may contact its local FAA official, or the person listed under the FOR
FURTHER INFORMATION CONTACT heading at the beginning of the preamble.
To find out more about SBREFA on the Internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

List of Subjects in 14 CFR Part 97

    Air traffic control, Airports, Incorporation by reference,
Navigation (air).

    Issued in Washington, DC, on October 4, 2016.
John S. Duncan,
Director, Flight Standards Service.

Adoption of the Amendment

    Accordingly, pursuant to the authority delegated to me, Title 14,
Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by
removing Standard Instrument Approach Procedures and/or Takeoff
Minimums and Obstacle Departure Procedures effective at 0901 UTC on the
dates specified, as follows:

PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES

0
1. The authority citation for part 97 continues to read as follows:

    Authority: 49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114,
40120, 44502, 44514, 44701, 44719, and 44721-44722.

0
2. Part 97 is amended by removing the specified procedures as follows:

----------------------------------------------------------------------------------------------------------------
               State                         Airport name                 ID              Approach procedure
----------------------------------------------------------------------------------------------------------------
AK.................................  BETHEL.....................  BET                VOR/DME RWY 19R.
AR.................................  SPRINGDALE MUNI............  ASG                VOR RWY 18.
AR.................................  MEMORIAL FIELD.............  HOT                VOR Y RWY 05.
CA.................................  ARCATA.....................  ACV                VOR/DME RWY 01.
CA.................................  EASTERN SIERRA RGNL........  BIH                VOR/DME OR GPS-B.
CA.................................  BRAWLEY MUNI...............  BWC                VOR/DME-A.
CA.................................  LOS BANOS MUNI.............  LSN                VOR/DME RWY 14.
GA.................................  FULTON COUNTY AIRPORT-BROWN  FTY                NDB RWY 8.
                                      FIELD.
GA.................................  GWINNETT COUNTY-BRISCOE      LZU                NDB RWY 25.
                                      FIELD.
GA.................................  BARROW COUNTY..............  WDR                VOR/DME-A.
IA.................................  THE EASTERN IOWA...........  CID                VOR RWY 27.
IA.................................  THE EASTERN IOWA...........  CID                VOR/DME RWY 09.
IA.................................  MASON CITY MUNI............  MCW                VOR/DME RWY 18.
IA.................................  SPENCER MUNI...............  SPW                VOR/DME RWY 12.
ID.................................  BOISE AIR TERMINAL/GOWEN     BOI                VOR/DME RWY 10R.
                                      FLD.
ID.................................  BURLEY MUNI................  BYI                VOR/DME-B.
ID.................................  POCATELLO RGNL.............  PIH                VOR/DME RWY 21.
IL.................................  AURORA MUNI................  ARR                VOR RWY 15.
IL.................................  AURORA MUNI................  ARR                VOR RWY 33.
IL.................................  MOUNT VERNON...............  MVN                VOR RWY 23.
IN.................................  EVANSVILLE RGNL............  EVV                NDB RWY 22.
IN.................................  MARION MUNI................  MZZ                VOR RWY 22.
IN.................................  MARION MUNI................  MZZ                VOR RWY 4.
IN.................................  KOKOMO MUNI................  OKK                VOR RWY 23.
IN.................................  INDIANAPOLIS EXECUTIVE.....  TYQ                VOR/DME RWY 36.
LA.................................  BATON ROUGE METROPOLITAN-    BTR                NDB RWY 31.
                                      RYAN FIELD.
LA.................................  BATON ROUGE METROPOLITAN-    BTR                VOR/DME RWY 22R.
                                      RYAN FIELD.
LA.................................  RUSTON RGNL................  RSN                NDB RWY 36.
ME.................................  AUGUSTA STATE..............  AUG                VOR/DME RWY 08.
ME.................................  AUGUSTA STATE..............  AUG                VOR/DME RWY 17.
MI.................................  JACKSON COUNTY-REYNOLDS      JXN                VOR/DME RWY 24.
                                      FIELD.
MO.................................  CAPE GIRARDEAU RGNL........  CGI                VOR RWY 10.
MO.................................  MACON-FOWER MEMORIAL.......  K89                VOR/DME RWY 20.
MO.................................  SPIRIT OF ST LOUIS.........  SUS                NDB RWY 26L.
MO.................................  SPIRIT OF ST LOUIS.........  SUS                NDB RWY 8R.
MT.................................  BERT MOONEY................  BTM                VOR/DME OR GPS-A.
MT.................................  BOZEMAN YELLOWSTONE INTL...  BZN                VOR/DME RWY 12.
MT.................................  MISSION FIELD..............  LVM                VOR-A.
MT.................................  SIDNEY-RICHLAND MUNI.......  SDY                NDB RWY 1.

NC.................................  ELIZABETH CITY CG AIR        ECG                VOR/DME RWY 10.
                                      STATION/RGNL.
NE.................................  WAYNE MUNI/STAN MORRIS FLD.  LCG                NDB RWY 23.
NE.................................  NORFOLK RGNL/KARL STEFAN     OFK                VOR RWY 01.
                                      MEMORIAL FLD.
NH.................................  BOIRE FIELD................  ASH                NDB RWY 14.
NV.................................  ELKO RGNL..................  EKO                VOR-A.
NY.................................  CHAUTAUQUA COUNTY/DUNKIRK..  DKK                VOR RWY 06.
OK.................................  RICHARD LLOYD JONES JR.....  RVS                VOR RWY 1L.
TX.................................  NORTH TEXAS RGNL/PERRIN      GYI                NDB RWY 17L.
                                      FIELD.
TX.................................  DRAUGHON-MILLER CENTRAL      TPL                VOR RWY 15.
                                      TEXAS RGNL.
VA.................................  DANVILLE RGNL..............  DAN                VOR RWY 02.
VA.................................  NEW RIVER VALLEY...........  PSK                VOR-A.
VA.................................  ROANOKE RGNL/WOODRUM FIELD.  ROA                VOR/NDB RWY 34, VOR RWY 34.
WA.................................  SNOHOMISH COUNTY (PAINE      PAE                VOR RWY 16R.
                                      FLD).
WI.................................  DANE COUNTY RGNL-TRUAX       MSN                VOR/DME OR TACAN RWY 14.
                                      FIELD.
WI.................................  DANE COUNTY RGNL-TRUAX       MSN                VOR/DME OR TACAN RWY 32.
                                      FIELD.
WI.................................  DANE COUNTY RGNL-TRUAX       MSN                VOR/DME OR TACAN RWY 18.
                                      FIELD.
WV.................................  GREENBRIER VALLEY..........  LWB                VOR RWY 04.
WY.................................  CASPER/NATRONA COUNTY INTL.  CPR                VOR/DME RWY 03.
WY.................................  EVANSTON-UINTA COUNTY BURNS  EVW                VOR/DME RWY 23.
                                      FIELD.
WY.................................  GILLETTE-CAMPBELL COUNTY...  GCC                VOR/DME RWY 34.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2016-24445 Filed 10-14-16; 8:45 am]
 BILLING CODE 4910-13-P


[Federal Register Volume 86, Number 191 (Wednesday, October 6, 2021)]
[Notices]
[Pages 55672-55677]
[FR Doc No: 2021-21752]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-93214; File Nos. SR-NYSE-2021-05, SR-NYSEAMER-2021-04,
SR-NYSEArca-2021-07, SR-NYSECHX-2021-01, SR-NYSENAT-2021-01]

Self-Regulatory Organizations; New York Stock Exchange LLC, NYSE
American LLC, NYSE Arca, Inc., NYSE Chicago, Inc., and NYSE National,
Inc.; Order Disapproving Proposed Rule Changes, as Modified by Partial
Amendment No. 1, To Amend Each Exchange's Fee Schedule To Add Two
Partial Cabinet Bundles Available in Co-Location and Establish
Associated Fees

September 30, 2021.

I. Introduction

    On January 19, 2021, New York Stock Exchange LLC (``NYSE''), NYSE
American LLC (``NYSE American''), NYSE Arca, Inc. (``NYSE Arca''), NYSE
Chicago, Inc. (``NYSE Chicago''), and NYSE National, Inc. (``NYSE
National'') (each an ``Exchange,'' collectively, the ``Exchanges'')
each filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Exchange Act'' or ``Act'') \1\ and Rule 19b-4
thereunder,\2\ a proposed rule change to amend the Exchanges' fee
schedules related to co-location to add two Partial Cabinet Bundles
available in co-location and establish associated fees. The proposed
rule changes were published for comment in the Federal Register on
February 5, 2021 or February 8, 2021, as applicable.\3\ On March 18,
2021, pursuant to Section 19(b)(2) of the Act,\4\ the Commission
designated a longer period within which to either approve the proposed
rule changes, disapprove the proposed rule changes, or institute
proceedings to determine whether to disapprove the proposed rule
changes.\5\ On May 6, 2021, the Division of Trading and Markets (the
``Division''), acting on behalf of the Commission by delegated
authority, issued an order instituting proceedings under Section
19(b)(2)(B) of the Act \6\ to determine whether to approve or
disapprove the proposed rule changes (``Order Instituting
Proceedings'') to determine whether to approve or disapprove the
proposed rule changes.\7\ The Commission received an initial comment
letter from the Exchanges in response to the Order Instituting
Proceedings.\8\ On July 30, 2021, pursuant to Section 19(b)(2) of the
Act,\9\ the Commission designated a longer period for Commission action
on the proceedings to determine whether to approve or disapprove the
proposed rule changes.\10\ On September 14, 2021, each Exchange filed
Partial Amendment No. 1, followed by a second comment letter.\11\ This
order disapproves the

proposed rule changes, as modified by Partial Amendment No. 1.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release Nos. 91034 (February 1,
2021), 86 FR 8443 (February 5, 2021) (SR-NYSE-2021-05); 91035
(February 1, 2021), 86 FR 8449 (February 5, 2021) (SR-NYSEAMER-2021-
04); 91036 (February 1, 2021), 86 FR 8440 (February 5, 2021) (SR-
NYSECHX-2021-01); and 91037 (February 1, 2021), 86 FR 8424 (February
5, 2021) (SR-NYSENAT-2021-01); 91044 (February 2, 2021), 86 FR 8662
(February 8, 2021) (SR-NYSEArca-2021-07) (each, a ``Notice''). For
ease of reference, page citations are to the Notice for NYSE-2021-
05.
    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release Nos. 91357 (March 18,
2021), 86 FR 15732 (March 24, 2021) (SR-NYSE-2021-05); 91358 (March
18, 2021), 86 FR 15732 (March 24, 2021) (SR-NYSEAMER-2021-04); 91360
(March 18, 2021), 86 FR 15764 (March 24, 2021) (SR-NYSEArca-2021-
07); 91362 (March 18, 2021), 86 FR 15765 (March 24, 2021)(SR-
NYSECHX-2021-01); and 91363 (March 18, 2021), 86 FR 15763 (March 24,
2021) (SR-NYSENAT-2021-01).
    \6\ 15 U.S.C. 78s(b)(2)(B).
    \7\ See Securities Exchange Act Release No. 91785 (May 6, 2021),
86 FR 26082 (May 12, 2021) (SR-NYSE-2021-05, NYSEAMER-2021-04,
NYSEArca-2021-07, SR-NYSECHX-2021-01 SR-NYSENAT-2021-01).
    \8\ NYSE filed a comment letter on behalf of all of the
Exchanges. See, letter dated July 6, 2021 from Elizabeth K. King,
Chief Regulatory Officer, ICE, General Counsel and Corporate
Secretary, NYSE to Vanessa Countryman, Secretary, Commission
(``First NYSE Response''). All comments received by the Commission
on the proposed rule changes are available on the Commission's
website at: https://www.sec.gov/comments/sr-nyse-2021-05/srnyse202105.htm; https://www.sec.gov/comments/sr-nyseamer-2021-04/srnyseamer202104.htm; https://www.sec.gov/comments/sr-nysearca-2021-07/srnysearca202107.htm; https://www.sec.gov/comments/sr-nysechx-2021-01/srnysechx202101.htm https://www.sec.gov/comments/sr-nysenat-2021-01/srnysenat202101.htm.
    \9\ 15 U.S.C. 78s(b)(2).
    \10\ See Securities Exchange Act Release Nos. 92532, 86 FR 42911
(August 5, 2021) (SR-NYSE-2021-05, SR-NYSENAT-2021-01, SR-NYSEAMER-
2021-04, NYSECHX-2021-01); 92531, 86 FR 42956 (August 5, 2021) (SR-
NYSEArca-2021-07).
    \11\ In Partial Amendment No. 1, the Exchanges propose that
Users ordering a proposed Partial Cabinet Bundle Option E or F on or
before December 31, 2022 (instead of December 31, 2021, as
originally proposed) would receive a 50% reduction in the monthly
recurring charge. See Partial Amendment No. 1 at 3-4. See also,
letter dated September 15, 2021 from Elizabeth K. King, Chief
Regulatory Officer, ICE, General Counsel and Corporate Secretary,
NYSE to Vanessa Countryman, Secretary, Commission (``Second NYSE
Response''). Partial Amendment No. 1 and the Second NYSE Response
are available on the Commission's website at: https://www.sec.gov/comments/sr-nyse-2021-05/srnyse202105.htm; https://www.sec.gov/comments/sr-nyseamer-2021-04/srnyseamer202104.htm; https://www.sec.gov/comments/sr-nysearca-2021-07/srnysearca202107.htm;
https://www.sec.gov/comments/sr-nysechx-2021-01/srnysechx202101.htm
https://www.sec.gov/comments/sr-nysenat-2021-01/srnysenat202101.htm.
For ease of reference, citations to Partial Amendment No. 1 and the
Second NYSE Response are to those for SR-NYSE-2021-05.
---------------------------------------------------------------------------

II. Background and Description of the Proposed Rule Changes, as
Modified by Partial Amendment No. 1.

    The Exchanges offer ``co-location services'' to market participants
from a data center in Mahwah, New Jersey (``Mahwah Data Center'') where
their electronic trading and execution systems are located.\12\ These
Exchange-offered services provide market participants (co-location
``Users,'' as further described below) with a variety of options to
obtain cabinet space, power, bandwidth, and related services that
enable them to connect to the Exchanges from within the Mahwah Data
Center and thereby obtain the most efficient access to the Exchanges'
trading engines and market data.\13\ As the Exchanges have stated,
``[u]sers that receive co-location services normally would expect
reduced latencies in sending orders to the Exchange and receiving
market data from the Exchange.'' \14\
---------------------------------------------------------------------------

    \12\ See e.g., Securities Exchange Act Release Nos. 62960
(September 21, 2010), 75 FR 59310 (September 27, 2010) (SR-NYSE-
2010-56); 62961 (September 21, 2010), 75 FR 59299 (September 27,
2010) (SR-NYSEAmex-2010-80); 63275 (November 8, 2010), 75 FR 70048
(November 16, 2010) (SR-NYSEArca-2010-100) (approving co-location
services and fees for NYSE, NYSE American, and NYSE Arca); 83351
(May 31, 2018), 83 FR 26314 (June 6, 2018) (SR-NYSENAT-2018-07);
87408 (October 28, 2019), 84 FR 58778 (November 1, 2019) (SR-
NYSECHX-2019-12) (approving co-location services and fees for NYSE
National and NYSE Chicago). The Commission has consistently reviewed
proposed rule changes for co-location services at the Mahwah Data
Center, which are facilities of the Exchanges.
    \13\ See id. These services are for fees filed with the
Commission, and reflected on an Exchange's Price List. A User that
incurs co-location fees for a particular co-location service
pursuant to any Exchange's Price List is not subject to co-location
fees for the same co-location service charged by one of the
affiliated Exchanges. See e.g., Notice, 86 FR at 8444 n.5.
    \14\ See supra note 12. See also Securities Exchange Act Release
No. 61358 (January 14, 2010), 75 FR 3594, at 3610 (January 21, 2010)
(Concept Release on Equity Market Structure), in which the
Commission described co-location as ``a service offered by trading
centers that operate their own data centers and by third parties
that host the matching engines of trading centers. The trading
center or third party rents rack space to market participants that
enables them to place their servers in close physical proximity to a
trading center's matching engine. Co-location helps minimize network
and other types of latencies between the matching engine of trading
centers and the servers of market participants.''
---------------------------------------------------------------------------

    A market participant that seeks the benefits of co-location
generally will, at a minimum, purchase cabinet space, power, and
bandwidth connections (1 Gb, 10 Gb, or 40 Gb), and any necessary cross-
connections. The 1 Gb, 10 Gb, and 40 Gb bandwidth connections that the
Exchanges offer enable the transmission of data over local area
networks in the Mahwah Data Center. These local area networks include
the internet Protocol (``IP'') network and the Liquidity Center Network
(``LCN''). Both the IP and LCN networks provide access to the
Exchanges' trading and execution systems and to the Exchanges'
proprietary market data products, with the LCN network having lower
latency than the IP network.\15\ The IP network provides access to
``away'' (third-party) market data products and execution systems.\16\
In 2020, the Exchanges added the NMS Network, a dedicated network in
the Mahwah Data Center, providing co-location Users with 10 Gb and 40
Gb connections access to this additional network without an associated
fee change.\17\
---------------------------------------------------------------------------

    \15\ See e.g., Securities Exchange Act Release No. 74222
(February 6, 2015), 80 FR 7888, 7889 (February 12, 2015).
    \16\ Id.
    \17\ See Securities Exchange Act Release Nos. 88837 (May 7,
2020), 85 FR 28671 (May 13, 2020) (SR-NYSE-2019-46, SR-NYSEAMER-
2019-34, SR-NYSEArca-2019-61, SR-NYSENAT-2019-19) (Order Granting
Approval of a Proposed Rule Change, as Modified by Amendment No. 1,
to Amend the Exchanges' Co-Location Services to Offer Co-Location
Users Access to the NMS Network; 88972 (May 29, 2020), 85 FR 34472
(June 4, 2020) (SR-NYSECHX-2020-18)(Notice of Filing and Immediate
Effectiveness of Proposed Rule Change to Amend the Services
Available to Users That Use Co-location Services in the Mahwah, New
Jersey Data Center). More specifically, the NMS Network offers
dedicated access to the National Market System Plan data feeds
(``NMS feeds'') for which the Securities Industry Automation
Corporation (``SIAC,'' a wholly-owned subsidiary of the NYSE) is
engaged as the securities information processor, namely, the
consolidated market data feeds distributed by (1) the Consolidated
Trade Association Plan; (2) the Consolidated Quotation Plan; and (3)
the Options Price Reporting Authority Plan). As a result, access to
the NMS feeds became available via dedicated bandwidth and at lower
latency than they had been over the IP network. Id.
---------------------------------------------------------------------------

    The Exchanges refer to direct purchasers of their co-location
services as ``Users,'' and permit any market participant that requests
to receive co-location services directly from one or more of the
Exchanges to be a User, subject to potential inventory constraints.\18\
The Exchanges' also permit ``Hosting Users.'' A Hosting User is a User
that subleases its cabinet space to a ``Hosted Customer'' and thereby
resells or repackages and sells Exchange co-location services to
customers of its own.\19\ Hosting Users are subject to a Hosting Fee of
$1,000 per month per Hosted Customer for each cabinet in which such
Hosted Customer is hosted.\20\ Thereby, the Exchanges receive payment
from Hosting Users for co-location services they purchase from the
Exchanges, as well as for cabinet space that a Hosting User resells,
with the Hosting Fee determined on a per cabinet/per Hosted Customer
basis.
---------------------------------------------------------------------------

    \18\ See e.g., Securities Exchange Act Release No. 65973
(December 15, 2011), 76 FR 79232 (December 21, 201) (SR-NYSE-2011-
53) (expanding access to co-location to any market participant that
requests to receive co-location services directly from one or more
of the Exchanges, and designating such persons as ``Users'');
Securities Exchange Act Release No. 91515 (April 8, 2021), 86 FR
19674 (April 14, 2021) (SR-NYSE-2021-12, SR-NYSEAMER-2021-08, SR-
NYSENAT-2021-03, SR-NYSEArca-2021-11, SR-NYSECHX-2021-02)
(establishing rules for the allocation of cabinets and power to
Users should inventory be insufficient to satisfy demand).
    \19\ A ``Hosting User'' means a User of co-location services
that hosts a Hosted Customer in the User's co-location space. A
``Hosted Customer'' means a customer of a Hosting User that is
hosted in a Hosting User's co-location space. See e.g., Securities
Exchange Act Release No. 76008 (September 29, 2015), 80 FR 60190
(October 5, 2015) (SR-NYSE-2015-40).
    \20\ Id.
---------------------------------------------------------------------------

    Among the co-location services currently offered by the Exchanges
are ``Partial Cabinet Bundles.'' \21\ Designed for ``smaller Users''
having limited power or cabinet space demands, the current bundles
offer a small co-location package: A partial cabinet with network
access via 1 Gb or 10 Gb connections, two fiber cross connections, and
connectivity to a time feed protocol, discounted from what the price
would be if a User purchased the elements separately.\22\ Users
currently may choose from four Partial Cabinet Bundles, labeled Options
A, B, C, and D. Options A and B include a partial cabinet with either
one or two kilowatts (``kW'') of power; a 1 Gb connection to each of
the LCN network and the IP network; two fiber cross connections; and
connectivity to either the Network Time Protocol or the Precision
Timing Protocol time feeds.\23\ Options C and D

originally included a 10 Gb connection to the LCN Network and a 10 GB
connection to the IP network.\24\ When the NMS Network was added, the
Exchanges upgraded Options C and D, to further include, at no
additional cost, two 10 Gb connections to the NMS Network.\25\ Options
C and D are available for an initial charge of $10,000 and a recurring
monthly charge of $14,000 and $15,000, respectively.\26\
---------------------------------------------------------------------------

    \21\ See e.g., Securities Exchange Act Release No. 77072
(February 5, 2016), 81 FR 7394 (February 11, 2016) (SR-NYSE-2015-
53).
    \22\ Id. at 7395-96. Partial Cabinet Bundle purchases are
subject to eligibility conditions: A purchaser (together with its
affiliates) of a Partial Cabinet Bundle from the Exchanges may have
no more than one Partial Cabinet Bundle and is limited to a total
footprint of 2 kW of power. See id. and Notice, 86 FR at 8444.
Designed to limit purchases of Exchange-offered Partial Cabinet
Bundles to ``smaller Users,'' this condition applies even if the
purchaser is also a ``Hosted Customer.'' See Securities Exchange Act
Release No. 76612 (December 10, 2015), 80 FR 78269, at 78271
(December 16, 2015) (SR-NYSE-2015-53).
    \23\ See Notice, 86 FR at 8444. Cross connections are fiber
connections at the Mahwah Data Center that provide the means to
connect a User's multiple cabinets, a cabinet of one User to a
cabinet of another User, or a User's cabinet to Exchange or third-
party equipment. See e.g., Securities Exchange Act Release No. 74222
(February 6, 2015, 80 FR 7888 (February 12, 2015) (SR-NYSE-2015-05).
The Network Time Protocol or the Precision Timing Protocol are
options for time feeds that provide the current time of day, and
which allow Users to receive time and synchronize clocks throughout
a computer network, and can also be used for recordkeeping or
measuring response times. See Securities Exchange Act Release No.
77072 (February 5, 2016), 81 FR 7394 (February 11, 2016) (SR-NYSE-
2015-53).
    \24\ Id.
    \25\ See supra note 17 and accompanying text.
    \26\ See Notice, 86 FR at 8445.
---------------------------------------------------------------------------

    The Exchanges now propose to expand their co-location services to
add two new Partial Cabinet Bundles, designated as Options E and F, and
establish associated fees. Proposed Options E and F would offer a 40 Gb
connection to the LCN network and a 40 Gb connection to the IP network,
and two 40 Gb connections to the NMS Network.\27\ Otherwise, proposed
Options E and F would be the same as the Options C and D bundles,
offering a 1 kW (Option E) or 2 kW (Option F) partial cabinet, two
fiber cross connections, and either the Network Time Protocol Feed or
the Precision Timing Protocol.\28\ The Exchanges state that the
proposed new options are in response to customer interest \29\ and that
the option of a Partial Cabinet Bundle that includes 40 Gb connections
would enable small market participants to connect to more data feeds or
have the same size connection in co-location that they have
elsewhere.\30\ The Exchanges propose to offer each new bundle for an
initial charge of $10,000, and, following an initial promotional
period, a monthly charge of $18,000 for Option E, and $19,000 for
Option F.\31\
---------------------------------------------------------------------------

    \27\ See Notice, 86 FR at 8444.
    \28\ See Notice, 86 FR at 8444. Purchases of the proposed new
bundles would likewise be subject to the same eligibility
requirements summarized in note 22 supra.
    \29\ See id.
    \30\ See id. at 8445.
    \31\ As proposed in Partial Amendment No. 1, Users who order
before December 31, 2022 would be charged $9,000 per month for
Option E or $9,500 per month for Option F for the first 12 months of
service. The Exchanges state that given the passage of time,
extending this date beyond December 31, 2021, as originally
proposed, would provide Users with the benefit of a longer period in
which to order the proposed Partial Cabinet Bundles E and F with a
reduced monthly rate, giving them more time to evaluate the benefits
of these bundles as compared to bundles offered by various Hosting
Users. See Partial Amendment No. 1 at 3-4.
---------------------------------------------------------------------------

III. Discussion and Commission Findings

    Under Section 19(b)(2)(C) of the Act,\32\ the Commission shall
approve a proposed rule change of a self-regulatory organization
(``SRO'') if it finds that such proposed rule change is consistent with
the requirements of the Act and the rules and regulations thereunder
that are applicable to such organization.\33\ The Commission shall
disapprove a proposed rule change if it does not make such a
finding.\34\ Rule 700(b)(3) of the Commission's Rules of Practice
states that the ``burden to demonstrate that a proposed rule change is
consistent with the [Act] and the rules and regulations issued
thereunder . . . is on the self-regulatory organization that proposed
the rule change'' and that a ``mere assertion that the proposed rule
change is consistent with those requirements . . . is not sufficient.''
\35\ Rule 700(b)(3) also states that ``the description of a proposed
rule change, its purpose and operation, its effect, and a legal
analysis of its consistency with applicable requirements must all be
sufficiently detailed and specific to support an affirmative Commission
finding.'' \36\ Both the D.C. Circuit and the Commission have addressed
the application of these and analogous standards, and the decision to
disapprove the proposed rule changes is best understood in the context
of that precedent.
---------------------------------------------------------------------------

    \32\ 15 U.S.C. 78s(b)(2)(C).
    \33\ 15 U.S.C. 78s(b)(2)(C)(i).
    \34\ 15 U.S.C. 78s(b)(2)(C)(ii). See also 17 CFR 201.700(b)(3).
    \35\ 17 CFR 201.700(b)(3).
    \36\ Id.
---------------------------------------------------------------------------

A. The Relevant Precedent

1. The NetCoalition Litigation
    In 2010, the D.C. Circuit vacated the Commission's approval of a
fee rule filed by NYSE Arca.\37\ The court held that focusing on
whether competitive market forces constrained the exchange's pricing
decisions was an acceptable basis for assessing the fairness and
reasonableness of the fees, but determined that the record did not
factually support the conclusion that significant competitive forces
limited NYSE Arca's ability to set unfair or unreasonable prices.
Although the D.C. Circuit vacated and remanded for further proceedings,
it accepted the Commission's articulated ``market-based approach'' for
assessing fees.\38\
---------------------------------------------------------------------------

    \37\ See NetCoalition v. SEC, 615 F.3d 525, 534-35, 539-44 (D.C.
Cir. 2010) (``NetCoalition I'').
    \38\ Id.
---------------------------------------------------------------------------

    Under the market-based approach, the Commission considers ``whether
the exchange was subject to significant competitive forces in setting
the terms of its proposal . . ., including the level of any fees.''
\39\ 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.\40\ If an exchange cannot demonstrate that
it was subject to significant competitive forces, it must ``provide a
substantial basis, other than competitive forces . . . demonstrating
that the terms of the [fee] proposal are equitable, fair, reasonable,
and not unreasonably discriminatory.'' \41\
---------------------------------------------------------------------------

    \39\ Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770, 74781 (December 9, 2008) (2008 ArcaBook Approval
Order).
    \40\ Id.
    \41\ Id.
---------------------------------------------------------------------------

    Subsequently, NYSE Arca filed with the Commission a new rule that
imposed the same fees that had been vacated by the D.C. Circuit, but
that designated the filing as effective immediately pursuant to a
change in the law made by the Dodd-Frank Act.\42\ The Securities
Industry and Financial Markets Association (``SIFMA'') filed a
challenge with the Commission to NYSE Arca's 2010 fee rule under
Section 19(d) of the Act on the ground that the fee rule was an
improper limitation of access to exchange services. The Commission
consolidated that challenge with another challenge to a fee rule filed
by The Nasdaq Stock Market LLC.\43\
---------------------------------------------------------------------------

    \42\ See Dodd-Frank Wall Street Reform and Consumer Protection
Act of 2010, Public Law 111-203, 124 Stat. 1376 (July 21, 2010). See
also 15 U.S.C. 78s(b)(3)(A) (permitting SROs to designate as
immediately effective rule changes ``establishing or changing a due,
fee, or other charge imposed by the [SRO] on any person, whether or
not the person is a member of the [SRO]'').
    \43\ See In the Matter of the Application of SIFMA, Securities
Exchange Act Release No. 72182, (May 16, 2014), available at:
https://www.sec.gov/litigation/opinions/2014/34-72182.pdf.
---------------------------------------------------------------------------

    On October 16, 2018, the Commission issued its decision in the
consolidated proceeding.\44\ The Commission held that the exchanges had
failed to meet their burden of establishing that certain challenged
fees were consistent with the purposes of the Act. Specifically, the
Commission concluded that the exchanges had not established that
competitive forces constrained their pricing decisions with respect to
the fees at issue and that the fees were fair and reasonable and not
unreasonably discriminatory. In so finding, the

Commission stated specifically that it was not making a determination
that the fees themselves were not fair and reasonable. The Commission
also explained that it was possible the challenged fees could be shown
to be consistent with the Act, but that the evidence provided by the
exchanges failed to satisfy their burden on the existing record.
Accordingly, the Commission set those fees aside.\45\ After an appeal
by the affected exchanges, the D.C. Circuit issued its opinion, holding
that Section 19(d) of the Act is not available as a means to challenge
the reasonableness of generally-applicable fee rules, vacated the
Commission's decision, and remanded for proceedings consistent with the
court's opinion.\46\
---------------------------------------------------------------------------

    \44\ See In the Matter of the Application of SIFMA, Securities
Exchange Act Release No. 84432 (October 16, 2018), available at
https://www.sec.gov/litigation/opinions/2018/34-84432.pdf (``SIFMA
Decision''), vacated on other grounds, NASDAQ Stock Mkt., LLC v.
SEC, 961 F.3d 421 (D.C. Cir. 2020). See text accompanying note 46
infra.
    \45\ See id. at 17-54. During the pendency of this Section 19(d)
challenge, over 60 related challenges to exchange rule changes and
NMS plan amendments were filed with the Commission.
Contemporaneously with the Commission's October 16, 2018 decision,
the Commission issued a separate order remanding those related
challenges to the respective exchanges and NMS plan participants and
instructed the exchanges and plan participants to consider the
impact of the October 16, 2018 decision on the challengers'
assertions that the contested rule changes and plan amendments
should be set aside under Section 19(d) of the Act. See In the
Matter of the Applications of SIFMA and Bloomberg L.P., Securities
Exchange Act Release No. 84433 (October 16, 2018), available at
https://www.sec.gov/litigation/opinions/2018/34-84433.pdf. The
Commission further directed the exchanges and NMS plan participants
to develop or identify fair procedures for assessing the challenged
rule changes and NMS plan amendments as potential denials or
limitations of access to services. See id.
    \46\ See NASDAQ Stock Mkt., LLC v. SEC, 961 F.3d 421 (D.C. Cir.
2020).
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2. Susquehanna
    In August 2017, the D.C. Circuit issued its decision in Susquehanna
International Group v. SEC.\47\ There, the court held that the
Commission's order approving a proposed rule change filed by the
Options Clearing Corporation (``OCC'')--its ``Capital Plan''--did not
provide the reasoned analysis required under the Act and the
Administrative Procedure Act.\48\ The court found that the Commission's
analysis was flawed in that the Commission relied too heavily on OCC's
representations rather than performing an independent analysis of the
Capital Plan or critically evaluating OCC's analysis of the Plan.\49\
The court emphasized that the Commission's ``unquestioning reliance on
OCC's defense of its own actions is not enough to justify approving the
Plan''; rather, the Commission ``should have critically reviewed OCC's
analysis or performed its own.'' \50\ Nor, according to the court,
could the Commission reach a conclusion ``unsupported by substantial
evidence.'' \51\ The D.C. Circuit remanded the case to the Commission
for further proceedings.
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    \47\ 866 F.3d 442 (D.C. Cir. 2017).
    \48\ See id. at 447 (citing NetCoalition I).
    \49\ See id.
    \50\ Id.
    \51\ Id. at 447-48.
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    Following the remand, the Commission disapproved the OCC Capital
Plan because it determined that the information OCC submitted before
the Commission was insufficient to support a finding that the plan was
consistent with the Act.\52\ In reaching this determination, the
Commission reiterated the D.C. Circuit's holding that it must
``critically evaluate the representations made and the conclusions
drawn'' by the SRO in determining whether a proposed rule change is
consistent with the Act.\53\
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    \52\ See Securities Exchange Act Release No. 85121 (February 13,
2019), 84 FR 5157 (February 20, 2019) (SR-OCC-2015-02).
    \53\ Id. at 5157.
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B. The Proposed Rule Change at Issue Here

    As discussed above, the Commission applies a market-based approach
to assessing proprietary market data fees, which has also been applied
to connectivity fees.\54\ Under the market-based approach, the
Commission considers ``whether the exchange was subject to significant
competitive forces in setting the terms of its proposal . . .,
including the level of any fees.'' \55\ 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.\56\ If an exchange cannot demonstrate that it was subject
to significant competitive forces, it must ``provide a substantial
basis, other than competitive forces . . . demonstrating that the terms
of the [fee] proposal are equitable, fair, reasonable, and not
unreasonably discriminatory.'' \57\
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    \54\ See Section III.A.1, supra.
    \55\ Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770, 74781 (December 9, 2008) (2008 ArcaBook Approval
Order). See also NetCoalition I, supra note 37 at 535, and SIFMA
Decision, supra note 44 at 22.
    \56\ Id.
    \57\ Id.
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    In support of the proposals, the Exchanges argue principally that
the proposed Partial Cabinet Bundles and fees therefor are subject to
significant competitive forces because they are offered in a
competitive environment where substitutes are available.\58\
Specifically, the proposal states that the Exchanges ``operate in a
highly competitive market in which exchanges and other vendors (e.g.,
Hosting Users) offer co-location services as a means to facilitate the
trading and other market activities of those market participants who
believe that co-location enhances the efficiency of their
operations.\59\ In the First NYSE Response, the Exchanges further state
that Hosting Users can and do offer a competing substitutable
product.\60\ In the Second NYSE Response, the Exchanges add that,
currently, 89 percent of customers receiving bundled services via the
Mahwah Data Center receive them from Hosting Users, while only 11
percent purchase them from the Exchanges as one of the existing Partial
Cabinet Bundle Options A-D.\61\ They state further that ``the fact that
the vast majority of customers obtain their bundles from Hosting Users
shows that the Exchanges are subject to significant competitive forces
in the market for bundled services.'' \62\
---------------------------------------------------------------------------

    \58\ See infra Section II.B.2.
    \59\ See Notice, 86 FR at 8445.
    \60\ See First NYSE Response at 7-8.
    \61\ See Second NYSE Response at 1.
    \62\ See Second NYSE Response at 1.
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    In addition, the Exchanges state that it is reasonable to set
monthly charges of $18,000 for an Option E bundle (a $4,000 increase
over Option C) and $19,000 for an Option F bundle (a $4,000 increase
over Option D), ``which reflects the fact that the Exchange will have
to supply multiple 40 Gb connections in the Option E and F bundles, as
opposed to the 10 Gb connections included in the Option C and D.'' \63\
They also urge that disapproval of the proposal would be unfair and
would harm competition. The Commission's discussion below begins with
the Exchanges' competition argument based on substitutability, and then
turns to consideration of the Exchanges' other arguments.
---------------------------------------------------------------------------

    \63\ See Notice, 86 FR at 8445.
---------------------------------------------------------------------------

    After careful consideration, the Commission is disapproving the
proposed rule changes, as modified by Partial Amendment No. 1, because
the information before us is insufficient to support a finding that the
proposed rule changes are consistent with the requirements of the Act.
Specifically, the Commission is unable to find that the proposed rule
changes are consistent with: (1) Section 6(b)(4) of the Act,\64\ which
requires that the rules of a national securities exchange provide for
the equitable allocation of reasonable dues, fees, and other charges
among its members and issuers and other persons using its facilities;
(2) Section 6(b)(5) of the Act,\65\ which requires that the rules

of a national securities exchange be designed, among other things, to
prevent fraudulent and manipulative acts and practices, to promote just
and equitable principles of trade, to remove impediments to and perfect
the mechanism of a free and open market and a national market system,
and, in general, to protect investors and the public interest, and not
be designed to permit unfair discrimination between customers, issuers,
brokers, or dealers; and (3) Section 6(b)(8) of the Act,\66\ which
requires that the rules of a national securities exchange do not impose
any burden on competition not necessary or appropriate in furtherance
of the purposes of the Act. Because an inability to make any of these
determinations under the Act independently necessitates disapproving
the proposal, the Commission disapproves the proposed rule changes.\67\
---------------------------------------------------------------------------

    \64\ 15 U.S.C. 78f(b)(4).
    \65\ 15 U.S.C. 78f(b)(5).
    \66\ 15 U.S.C. 78f(b)(8).
    \67\ In disapproving the proposed rule change, the Commission
has considered the proposed rule's impact on efficiency,
competition, and capital formation. See 15 U.S.C. 78c(f), and text
accompanying notes 92-94 infra.
---------------------------------------------------------------------------

1. The Exchanges' Competition-Based Argument in Support of the Proposed
Fee Rules Lacks Sufficient Information for the Commission To Determine
Whether the Proposed Rule Changes Are Consistent With the Act
    In their proposals, the Exchanges state that they operate ``in a
highly competitive market in which exchanges and other vendors (e.g.,
Hosting Users) offer co-location services as a means to facilitate the
trading and other market activities of those market participants who
believe that co-location enhances the efficiency of their operations.''
\68\ In the First NYSE Response, they state that competition is
demonstrated because substitutes for the proposed services are readily
available from third-party providers, and specifically from the
Exchanges' Hosting Users.\69\ They also state that Partial Cabinet
Bundle Options E and F are proposed in response to customer interest
and for the purpose of competing with bundled services offered by
Hosting Users.\70\ The Exchanges further state that Hosting Users are
third parties that pay a monthly fee to the Exchanges in exchange for
permission to subdivide cabinets and resell those partial cabinets,
along with other services, and, in this way, Hosting Users are third
parties that offer services in direct competition with the
Exchanges.\71\ As noted above, the Exchanges state that competition is
demonstrated by the fact that 89% of customers obtain their bundle
services from alternate providers despite the availability of Partial
Cabinet Bundle Options A-D from the Exchanges.\72\
---------------------------------------------------------------------------

    \68\ See Notice, 86 FR at 8445.
    \69\ See First NYSE Response at 7.
    \70\ See First NYSE Response at 7-8 (stating, ``approximately
10% of Users in colocation are Hosting Users capable of selling such
bundles to customers,'' and ``the Exchanges believe that at least
one of the Hosting Users currently does offer a Hosting User Bundle
that includes 40 Gb connections.'').
    \71\ See id. at 7.
    \72\ See Second NYSE Response at 2.
---------------------------------------------------------------------------

    The Exchanges have not provided sufficient information to
demonstrate that the market for the proposed Partial Cabinet Bundles is
competitive. As an initial matter, the Exchanges' broad rationale that
fees for proposed Partial Cabinet Bundle Options E and F are, like fees
for all co-location services, constrained by competition, is not
supported with data and analysis. They state that ``fees charged for
co-location services are constrained by the active competition for the
order flow of, and other business from, such market participants,'' and
that ``if a particular exchange charges excessive fees for co-location
services, affected market participants will opt to terminate their co-
location arrangements with that exchange [and pursue alternative
strategies].'' \73\ However, they offer no evidence that substitutes
for Partial Cabinet Bundle Options E and F may be available from other
exchanges or vendors outside of the Mahwah Data Center. Instead, the
Exchanges argue that substitutable services are available from Hosting
Users.\74\
---------------------------------------------------------------------------

    \73\ See Notice, 86 FR at 8446.
    \74\ See First NYSE Response at 9-11.
---------------------------------------------------------------------------

    Based on the information provided, it appears that the market for
the proposed Partial Cabinet Bundles could be accessed in two ways:
Directly from the Exchanges, or from Hosting Users offering a similar
product.\75\ But it remains unclear how the presence of Hosting Users
brings significant competitive forces to bear on Exchange pricing of
the proposed products, if, as it appears, Hosting User access to the
key services comprising the proposed Partial Cabinet Bundles is
controlled by the Exchanges and the ability of a Hosting User to resell
cabinet space and thereby obtain Hosted Customer business is contingent
on payment of $1,000 per Hosted Customer for each cabinet in which such
Hosted Customer is hosted.
---------------------------------------------------------------------------

    \75\ In the First NYSE Response, the Exchanges state that
acquiring a partial cabinet from Hosting Users is not the only way
that a customer could acquire the services contained in the
proposal. They state that customers could buy a partial cabinet from
the Exchanges without any network connectivity, then cross-connect
to a Hosting User for access to network connections. See First NYSE
Response at 8. Such partial cabinet and network connectivity would
have to be purchased from the Exchanges, however, as would the cross
connects.
---------------------------------------------------------------------------

    The Exchanges argue that they compete with their Hosting Users, and
that the proposal is an attempt to ``to maintain a more level playing
field between the Exchanges and the Hosting Users, who compete for
Hosted Customer business.'' \76\ They also urge that Hosting Users have
freedom in the relevant market that the Exchanges lack, stating:
``Hosting Users are free to create a wide array of bespoke bundles of
services for specific customers, charging whatever fees those customers
will pay, without having to file such services with the Commission.
Because Hosting Users are not required to pre-clear such bundles with
the Commission, they have unfettered freedom to compete with each other
in the market for partial cabinet bundled services.'' \77\ The
Exchanges state that there are currently five Hosting Users available
to offer similar substitutes, with at least one currently believed to
have a customer.\78\ Further, the Exchanges state that they do not
expect the availability of proposed Options E and F to cause customers
that currently obtain bundled services from Hosting Users to migrate
their business to the Exchanges, because the freedoms that Hosting
Users have put Hosting Users in a superior competitive position
relative to the Exchanges in the provision of bundled services.\79\
---------------------------------------------------------------------------

    \76\ See Notice, 86 FR at 8446.
    \77\ See First NYSE Response at 7 (italics added).
    \78\ See note 70 supra.
    \79\ See Second NYSE Response at 2.
---------------------------------------------------------------------------

    These arguments are not sufficient to demonstrate the presence of a
competitive market for the proposed Partial Cabinet Bundles. In order
for it to offer the substitute services that the Exchanges claim will
bring competitive forces to bear on fees, a Hosting User must accept
the Exchanges' operational environment, purchase the key services
comprising the Partial Cabinet Bundles (e.g., cabinet space, power,
bandwidth connections) from the Exchanges, and bear the applicable
Hosting Fees. In this environment,\80\ the Exchanges impose charges
that represent a portion of the costs of their competitors, the Hosting
Users. While offering Options E and F may expand the range of co-
location offerings available, the extent to which these offerings will
result in Hosting Users being able to offer similar services

concomitantly with the Exchanges at a competitive price is unclear. The
evidence regarding Options A-D provided in the Second NYSE Response is
not evidence regarding Options E-F, and so does not provide support for
the Exchanges' competition arguments. The Exchanges do not explain how
Hosting Users may compete with the Exchanges when access to the
services comprising the proposed Partial Cabinet Bundles is controlled
by the Exchanges. Neither do they explain how the presence of Hosting
Users is a force that constrains the Exchanges' pricing decisions.\81\
Further, it remains unclear how the proposals would result in a more
level playing field between the Exchanges and Hosting Users, which the
Exchanges state is their goal. Because the Exchanges have not provided
sufficient evidence to establish that competitive forces constrain
their ability to price the proposed Partial Cabinet Bundles, they must
provide an alternative basis to support the proposed fees.\82\
---------------------------------------------------------------------------

    \80\ As noted above, the physical environment is in space
proximate to the Exchanges' trading engines and market data systems,
over which the Exchanges have control.
    \81\ See, e.g., NetCoalition I at 542 (``the existence of a
substitute does not necessarily preclude market power. . . . Rather,
whether a market is competitive notwithstanding potential
alternatives depends on factors such as the number of buyers who
consider other products interchangeable and at what prices. . . .
The inquiry into whether a market for a product is competitive,
therefore, focuses on the customer and, in particular, his price
sensitivity--in economic terms, the product's `elasticity of
demand.'''); and id. at 544 (quoting United States v. Microsoft
Corp., 253 F.3d 34, 53-54 (DCCir.2001) (``The test of reasonable
interchangeability . . . consider[s] only substitutes that constrain
pricing in the reasonably foreseeable future, and only products that
can enter the market in a relatively short time can perform this
function.'').
    \82\ See supra note 57 and accompanying text.
---------------------------------------------------------------------------

2. The Exchanges' Other Arguments Lack Sufficient Information for the
Commission To Determine Whether the Proposed Rule Changes Are
Consistent With the Act
    Under the market-based approach, if an exchange cannot demonstrate
that it was subject to significant competitive forces, it must
``provide a substantial basis, other than competitive forces, . . .
demonstrating that the terms of the proposal are equitable, fair,
reasonable, and not unreasonably discriminatory.'' \83\ The Exchanges
have not done so on the record here.
---------------------------------------------------------------------------

    \83\ See id.
---------------------------------------------------------------------------

    In support of the fee levels proposed for Partial Cabinet Bundle
Options E and F, the Exchanges state that the $10,000 initial charge is
reasonable because it is the same as that which Users currently pay
when choosing the existing Option C or D bundles, which reflects the
fact that setting up each of these four cabinet options involves a
similar amount of work for the Exchanges.\84\ They also state that the
proposed monthly charges of $18,000 for an Option E bundle (a $4,000
increase over Option C) and $19,000 for an Option F bundle (a $4,000
increase over Option D) are reasonable because these fees reflect the
fact that the Exchanges will have to supply more expensive multiple 40
Gb connections in the Option E and F bundles, as opposed to the 10 Gb
connections included in the Option C and D bundles.\85\ However,
although these arguments appear generally to be based on the costs
incurred by the Exchanges in providing the proposed Partial Cabinet
Bundles, the Exchanges provide no specific cost information to support
their arguments. In making any finding or determination, the Commission
cannot ``[s]imply accept what the [SRO] has done,'' and cannot have an
``unquestioning reliance'' on an SRO's representations in a proposed
rule change.\86\ Without more, these statements do little to inform the
analysis into the level of the particular fees proposed here.
---------------------------------------------------------------------------

    \84\ See Notice, 86 FR at 8445.
    \85\ Id.
    \86\ See Susquehanna supra note 47, 866 F.3d 442 (D.C. Cir.
2017).
---------------------------------------------------------------------------

    The Exchanges also assert that the Commission may be applying
improper standards to the rule filings.\87\ Specifically, the First
NYSE Response expresses the concern that the Commission may be
improperly demanding that the Exchanges provide cost data in connection
with all rule filings, even where the Exchanges have demonstrated that
sufficient competition exists.\88\ The Exchanges are incorrect. As
described above, the Commission takes a market-based approach to
assessing proprietary market data fees, which has also been applied to
connectivity fees. The Commission considers ``whether the exchange was
subject to significant competitive forces in setting the terms of its
proposal . . ., including the level of any fees.'' \89\ 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.\90\ If an exchange cannot demonstrate that it was subject
to significant competitive forces, it must ``provide a substantial
basis, other than competitive forces . . . demonstrating that the terms
of the [fee] proposal are equitable, fair, reasonable, and not
unreasonably discriminatory.'' \91\
---------------------------------------------------------------------------

    \87\ See First NYSE Response at 4-7.
    \88\ See id.
    \89\ Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770, 74781 (December 9, 2008) (2008 ArcaBook Approval
Order). See also NetCoalition I, supra note 37 at 535, and SIFMA
Decision, supra note 44 at 22.
    \90\ Id.
    \91\ Id.
---------------------------------------------------------------------------

    Finally, the Exchanges argue that disapproval of the proposals
would be harmful to competition.\92\ The Exchanges indicate that their
inability to offer Partial Cabinet Bundles with 40 Gb connections
hinders competition with Hosting Users, and may deny more cost
effective alternatives for Users with minimal power or cabinet space
demands, but higher bandwidth requirements.\93\ The Commission
encourages the Exchanges to propose rule changes that enhance
competition, and the Exchanges are free to refile these fees and
accompany them with an updated explanation demonstrating that their
proposals are consistent with the Act.\94\ For the reasons discussed
above, they have not met this burden on the current record.
---------------------------------------------------------------------------

    \92\ See First NYSE Response at 9-10.
    \93\ See id. at 9.
    \94\ See supra 67.
---------------------------------------------------------------------------

IV. Conclusion

    For the reasons set forth above, the Commission does not find that
the proposed rule changes, as modified by Partial Amendment No. 1, are
consistent with the Act and the rules and regulations thereunder
applicable to a national securities exchange, and in particular,
Sections 6(b)(4), 6(b)(5), and 6(b)(8) of the Act.
    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\95\ that the proposed rule changes (SR-NYSE-2021-05, SR-NYSEAMER-
2021-04, SR-NYSEArca-2021-07, SR-NYSECHX-2021-01, SR-NYSENAT-2021-01),
each as modified by Partial Amendment No 1, be, and hereby are,
disapproved.
---------------------------------------------------------------------------

    \95\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\96\
---------------------------------------------------------------------------

    \96\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-21752 Filed 10-5-21; 8:45 am]
BILLING CODE 8011-01-P