[Federal Register Volume 82, Number 224 (Wednesday, November 22, 2017)]
[Notices]
[Pages 55660-55666]
[FR Doc No: 2017-25231]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-82100; File No. SR-NYSEARCA-2017-130]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Changes to the NYSE Arca
Equities Proprietary Market Data Fees

November 16, 2017.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on November 3, 2017, NYSE Arca, Inc. (the ``Exchange'' or
``NYSE Arca'') 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 self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes changes to the NYSE Arca Equities Proprietary
Market Data Fees (``Fee Schedule'') to: (1) Modify the Redistribution
Fee for NYSE ArcaBook and NYSE Arca Integrated Feed; (2) modify the
Non-Display Fee for NYSE ArcaBook and NYSE Arca Integrated Feed; and
(3) modify Professional User Fees for NYSE ArcaBook and NYSE Arca
Integrated Feeds and establish tiered Professional User Fees and a
Professional User Fee Cap for Broker-Dealers subscribers of NYSE
ArcaBook. The proposed rule change is available on the Exchange's Web
site 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 changes to the Fee Schedule to: (1) Modify
the Redistribution Fee for NYSE ArcaBook \4\ and NYSE Arca Integrated
Feed; \5\ (2)

modify the Non-Display Fee for NYSE ArcaBook and NYSE Arca Integrated
Feed; and (3) modify Professional User Fees for NYSE ArcaBook and NYSE
Arca Integrated Feeds and establish tiered Professional User Fees and a
Professional User Fee Cap for Broker-Dealer subscribers of NYSE
ArcaBook. The Exchange proposes to make these fee changes operative on
January 1, 2018.
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    \4\ See Securities Exchange Act Release Nos. 53592 (June 7,
2006), 71 FR 33496 (June 9, 2006) (SR-NYSEArca-2006-21) (``2006
ArcaBook Notice''); 59039 (December 2, 2008), 73 FR 74770 (December
9, 2008) (SR-NYSEArca-2006-21); 69315 (April 5, 2013), 78 FR 21668
(April 11, 2013) (SR-NYSEArca-2013-37) (``2013 Non-Display
Filing''); 72560 (July 8, 2014), 79 FR 40801 (July 14, 2014) (SR-
NYSEArca-2014-72)(``2014 ArcaBook Filing''); 73011 (September 5,
2014), 79 FR 54315 (September 11, 2014) (SR-NYSEARCA-2014-93)
(``2014 Non-Display Filing''); 74011 (January 7, 2015), 80 FR 1681
(January 13, 2015) (SR-NYSEArca-2014-149) (``2015 ArcaBook
Filing''); and 76903 (January 14, 2016), 81 FR 3547 (January 21,
2016) (SR-NYSEArca-2016-01).
    \5\ See Securities Exchange Act Release Nos. 66128 (Jan. 10,
2012), 77 FR 2331 (Jan. 17, 2012) (SR-NYSEArca-2011-96); 69315
(April 5, 2013), 78 FR 21668 (April 11, 2013) (SR-NYSEArca-2013-37)
(``2013 Non-Display Filing''); 73011 (Sept. 5, 2014), 79 FR 54315
(Sept. 11, 2014) (SR-NYSEArca-2014-93) (``2014 Non-Display
Filing''); 73993 (Jan. 6, 2015), 80 FR 1527 (Jan. 12, 2015) (SR-
NYSEArca-2014-147); and 76914 (January 14, 2016), 81 FR 3484
(January 21, 2016) (SR-NYSEArca-2016-03).
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Redistribution Fee
    A Redistributor is any person approved by the Exchange that
provides an NYSE Arca data product to an external data recipient or to
any external system that a data recipient uses, irrespective of the
means of transmission or access. The Exchange currently charges a
redistribution fee of $1,500 per month for NYSE ArcaBook and $3,000 per
month for NYSE Arca Integrated Feed. The Exchange proposes to increase
the redistribution fee to $2,000 per month for NYSE ArcaBook and to
$3,750 per month for NYSE Arca Integrated Feed.
Non-Display Fee
    Non-Display Use of NYSE Arca market data means accessing,
processing, or consuming NYSE Arca market data delivered via direct
and/or Redistributor data distribution for a purpose other than in
support of a data recipient's display usage or further internal or
external redistribution.\6\
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    \6\ See e.g. 2015 ArcaBook Filing, supra note 4.
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    There are currently three categories of, and fees applicable to,
data recipients for non-display use that are listed on the Fee
Schedule:
     Category 1 Fees apply when a data recipient's non-display
use of real-time market data is on its own behalf as opposed to use on
behalf of its clients;
     Category 2 Fees apply when a data recipient's non-display
use of real-time market data is on behalf of its clients as opposed to
use on its own behalf; and
     Category 3 Fees apply when a data recipient's non-display
use of real-time market data is for the purpose of internally matching
buy and sell orders within an organization, including matching customer
orders on a data recipient's own behalf and/or on behalf of its
clients.
    The Exchange proposes to amend non-display use fees for NYSE
ArcaBook and NYSE Arca Integrated Feed.
    The current non-display fee for NYSE ArcaBook is $5,000 per month
for each of Category 1, Category 2 and Category 3. Category 3 fees are
currently capped at $15,000 per month. The Exchange proposes to
increase the non-display fee for NYSE ArcaBook to $6,000 per month for
each of Category 1, Category 2 and Category 3. The Exchange proposes a
corresponding increase in the cap for Category 3 fees for NYSE ArcaBook
to $18,000 per month.
    The current non-display fee for NYSE Arca Integrated Feed is $7,000
per month for each of Category 1, Category 2 and Category 3. Category 3
fees are currently capped at $21,000. The Exchange proposes to increase
the non-display fee for NYSE Arca Integrated Feed to $10,500 per month
for each of Category 1, Category 2 and Category 3. The Exchange
proposes a corresponding increase in the cap for Category 3 fees for
NYSE Arca Integrated Feed to $31,500 per month.
Professional User Fee
    The Exchange currently charges a flat monthly Professional User Fee
of $40 per user for NYSE ArcaBook. The Exchange proposes to increase
Professional User Fees for NYSE ArcaBook to $60 per month. The Exchange
also proposes to establish tiered Professional User Fees for broker-
dealers that are subscribers of NYSE ArcaBook, as follows:
     $60 per month for each of 500 or fewer professional users
reported for a broker-dealer subscriber, and
     The current rate of $40 per month for each professional
user over 500 reported for a broker-dealer subscriber.
    The Exchange notes that it has not increased NYSE ArcaBook
subscriber fees for display use since 2014.\7\ With this proposed
change, all subscribers would pay more for some of their professional
users than they do today. However, some subscribers that qualify for
the proposed tiered rate, i.e., subscribers with more than 500
professional users, would pay less under the proposed fee change than
they would absent the proposed tiered fees.
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    \7\ See Securities Exchange Act Release No. 71483 (February 5,
2014), 79 FR 8217 (February 11, 2014) (SR-NYSEArca-2014-12)
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    In addition, the Exchange proposes to cap the Professional User Fee
for broker-dealers that are subscribers of NYSE ArcaBook at $75,000 per
month.
    To illustrate the application of the proposed Professional User Fee
increase and the Professional Use Fee cap, a broker-dealer with 2,500
professional users who receive NYSE ArcaBook would currently pay
$100,000 per month in Professional User Fees (2,500 users at $40 per
month). If all 2,500 users are internal users, under the proposed fee
change, this broker-dealer's Professional User Fees would increase to
$110,000 per month (500 users at $60 per month plus 2,000 users at $40
per month). However, the operation of the proposed cap would cause this
broker-dealer's fees to drop to $75,000 per month. Thus, for this
broker-dealer the effect of the proposed changes would be a decrease of
$25,000 per month in Professional User Fees.
    Further, the Exchange currently charges a flat monthly Professional
User Fee of $40 per month per user for NYSE Arca Integrated Feed. The
Exchange proposes to increase the monthly Professional User Fees for
NYSE Arca Integrated Feed to $60 per month per user. The proposed fee
change would apply to all professional users of NYSE Arca Integrated
Feed.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6 of the Act,\8\ in general, and
Sections 6(b)(4) and 6(b)(5) of the Act,\9\ 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.
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    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(4) and (5).
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    The Exchange believes that the proposed fee changes are fair and
reasonable in light of market and technology developments. The Exchange
further believes that the proposed fee changes are also equitable and
not unfairly discriminatory because they would apply to all data
recipients that choose to subscribe to NYSE ArcaBook and NYSE Arca
Integrated Feed.
Redistribution Fee
    The Exchange believes the proposed changes to the redistribution
fee for NYSE ArcaBook and NYSE Arca Integrated Feed are equitable and
reasonable because they compare favorably to redistribution fees that
are currently charged by other exchanges.\10\ The Exchange believes
that it is reasonable to charge redistribution fees

because vendors receive value from redistributing the data in their
business products for their customers. The Exchange believes the
proposed change to the redistribution fees also are not unfairly
discriminatory because they would continue to be charged on an equal
basis to any vendor that chooses to redistribute the data.
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    \10\ Cboe BZX U.S. Equities Exchange (``BZX Equities'') charges
$5,000 per month for external distribution of the BZX Depth market
data product. See https://markets.cboe.com/us/equities/membership/fee_schedule/bzx/. In addition, the Nasdaq Stock Market (``Nasdaq'')
charges $3,750 per month for external distribution of the NASDAQ
TotalView market data product. See https://www.nasdaqtrader.com/Trader.aspx?id=DPUSdata#tv.
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Non-Display Fee
    The Exchange believes that the proposed fee increases for each of
Categories 1, 2, and 3 for NYSE ArcaBook and NYSE Arca Integrated Feed
are equitable and reasonable. In establishing the non-display fees in
April 2013, the Exchange set its fees at levels that were below or
comparable to similar fees charged by certain of its competitors.\11\
The Exchange then modestly increased such fees in 2014 after gaining
further experience with its non-display fee structure. The Exchange
believes the proposed fees better reflect the significant value of the
non-display data to data recipients, which purchase data on an entirely
voluntary basis. Non-display data continues to be used by data
recipients for a wide variety of profit-generating purposes, including
proprietary and agency trading and smart order routing, as well as by
data recipients that operate order matching and execution platforms
that compete directly with the Exchange for order flow. Non-display
data also continues to be used for a variety of non-trading purposes
that indirectly support trading, such as risk management and
compliance. While some of these non-trading uses do not directly
generate profits, they can nonetheless substantially reduce the
recipient's costs by automating such functions so that they can be
carried out in a more efficient and accurate manner and reduce errors
and labor costs, thereby benefitting end users. The Exchange believes
that the proposed fees directly and appropriately reflect the
significant value of using non-display data in a wide range of
computer-automated functions relating to both trading and non-trading
activities and that the number and range of these functions continue to
grow through innovation and technology developments.\12\
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    \11\ See Securities Exchange Act Release No. 69315 (April 5,
2013), 78 FR 21668 (April 11, 2013) (SR-NYSEArca-2013-37).
    \12\ See also Exchange Act Release No. 69157, March 18, 2013, 78
FR 17946, 17949 (March 25, 2013) (SR-CTA/CQ-2013-01) (``[D]ata feeds
have become more valuable, as recipients now use them to perform a
far larger array of non-display functions. Some firms even base
their business models on the incorporation of data feeds into black
boxes and application programming interfaces that apply trading
algorithms to the data, but that do not require widespread data
access by the firm's employees. As a result, these firms pay little
for data usage beyond access fees, yet their data access and usage
is critical to their businesses.'').
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    The Exchange believes the proposed fee increases are also
reasonable in that they support the Exchange's efforts to regularly
upgrade systems to support more modern data distribution formats and
protocols as technology evolves. For example, the Exchange's extensive
improvements to its trading platform and feed technology has
significantly lowered the latency of its proprietary data products
available over the XDP protocol, which transmits data faster and more
efficiently than the Exchange's previous data distribution channel. For
example, the average latency of NYSE ArcaBook and NYSE Arca Integrated
Feed is approximately one-third of what it was in 2014.
    The Exchange believes the proposed fees are competitive with
offerings by other exchanges, which structure and set their fees
comparably. For example, Nasdaq charges professional subscribers
monthly fees for non-display usage based upon direct access to NASDAQ
level 2, NASDAQ TotalView, or NASDAQ OpenView, which range from $375
per month for customers with one to 39 subscribers to $75,000 per month
for customers with 250 or more subscribers.\13\ In addition, Nasdaq
PHLX (``PHLX'') offers an alternative $10,000 per month ``Non-Display
Enterprise License'' fee that permits distribution to an unlimited
number of internal non-display subscribers without incurring additional
fees for each internal subscriber.\14\ The Non-Display Enterprise
License covers non-display subscriber fees for all PHLX proprietary
direct data feed products and is in addition to any other associated
distributor fees for PHLX proprietary direct data fee products.
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    \13\ See Nasdaq Rule 7023(b)(4).
    \14\ See Section IX of the PHLX Pricing Schedule.
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Professional User Fee
    The Exchange believes that the proposed subscriber fees are
reasonable, equitable and not unfairly discriminatory because the fee
structure of differentiated professional and non-professional fees has
long been used by the Exchange for other products, by other exchanges
for their products, and by the CTA and CQ Plans in order to make data
more broadly available.
    The Exchange believes that the tiered structure with decreasing
fees as the number of professional subscribers increase is equitable
and not unfairly discriminatory because it is similar to the tiered
structure used for professional subscribers by the CTA and CQ for
Network A data \15\ Broker-dealers that purchase NYSE ArcaBook
typically have more than 500 professional users and would therefore be
impacted by the change in fees for up to the first 500 such users. The
fees for such broker-dealers for users above that level will remain at
the current level. Additionally, as proposed, professional user fees
will be based on a tiered fee structure that depends on the number of
users, with a reduced per user rate for those professional users that
exceed 500. Subscribers would pay $60 per user per month for 500 and
fewer users, and would pay the current rate of $40 per user per month
for those users that exceed 500. This tiered structure is an equitable
allocation of reasonable dues, fees and other charges because the
proposed fees are commensurate with the value of the data feed.
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    \15\ Those monthly fees are $50 for 1-2 devices, $30 for 3-999
devices, $25 for 1,000-9,999 devices, and $20 for 10,000 or more
devices. See CTA Network A Rate Schedule, available at http://www.nyxdata.com/nysedata/default.aspx?tabid=518.
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    The Exchange further believes the proposed monthly Professional
User Fee of $60 for NYSE ArcaBook and NYSE Arca Integrated Feed is
reasonable because the proposed fee is comparable to the $60 per month
fee currently charged by the New York Stock Exchange LLC (``NYSE'') to
professional users of the NYSE OpenBook market data product,\16\ and is
lower than the $76 per month fee currently charged by Nasdaq to
professional users of the Nasdaq TotalView market data product.\17\ And
as noted above, the Exchange has not raised the subscriber fees for
display use of NYSE ArcaBook since 2014 and for NYSE Arca Integrated
Feed since 2013 when fees for NYSE Arca Integrated Feed were first
adopted. Since then, the Exchange has continually enhanced its market
data products through technology upgrades to meet industry and customer
demands. The Exchange believes that the proposed fees are fair and
reasonable in light of the Exchange's ongoing effort to improve the
delivery technology for market data.
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    \16\ See NYSE Proprietary Market Data Fees at https://www.nyse.com/publicdocs/nyse/data/NYSE_Market_Data_Fee_Schedule.pdf.
    \17\ See Nasdaq Price List--U.S. Equities at https://www.nasdaqtrader.com/Trader.aspx?id=DPUSdata#tv.
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    The Exchange believes that it is reasonable to establish the
Professional Fee Cap. The purpose of the Professional User Fee is to
charge for each use of NYSE ArcaBook data feed. The Exchange believes
it is appropriate to charge user fees for employees that work on
different trading desks or who

provide advisory services. These internal uses are intended to provide
value to customers of the broker-dealer, whether in the execution of
trades, or with designing an investment portfolio, and are therefore an
integral part of a broker-dealer's business model. While the Exchange
anticipates that only the largest broker-dealers would avail themselves
to the proposed fee cap, in the Exchange's view, limiting the fee
exposure of a subset of its customers, i.e., large broker-dealers, does
not unreasonably discriminate against other customers under Section
603(a)(2) of Regulation NMS. Additionally, the Exchange notes that fee
caps have long been accepted as an economically efficient form of
volume discount for the heaviest users of market data and would allow
for a broad dissemination of the Exchange's market data product.\18\
The concept of adopting a fee cap applicable to broker-dealer
subscribers is not novel. The Exchange currently has a Non-Professional
Fee Cap applicable to Broker-Dealers only that subscribe to NYSE
ArcaBook.\19\
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    \18\ See e.g., Nasdaq Rule 7023(c), Enterprise License Fees at
http://nasdaq.cchwallstreet.com/NASDAQTools/PlatformViewer.asp?selectednode=chp_1_1_4_6&manual=%2Fnasdaq%2Fmain%2Fnasdaq-equityrules%2F.
    \19\ See NYSE Arca Equities Proprietary Market Data Fees at
https://www.nyse.com/publicdocs/nyse/data/NYSE_Arca_Equities_Fee_Schedule.pdf. See also Securities Exchange
Act Release Nos. 59039 (December 2, 2008), 73 FR 74770 (December 9,
2008) (SR-NYSEArca-2006-21); 72560 (July 8, 2014), 79 FR 40801 (July
14, 2014) (SR-NYSEArca-2014-72); and 76903 (January 14, 2016), 81 FR
3547 (January 21, 2016) (SR-NYSEArca-2016-01).
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    The Exchange proposes these higher fees in light of the fact that
since 2014, the value of NYSE ArcaBook and NYSE Arca Integrated Feed
data feeds has increased significantly while fees for these products
have not increased. The Exchange notes that in that time, the Exchange
has continually upgraded its technology to keep pace with changes in
the industry and evolving customer needs. Further, the standardization
of the market data specifications recently implemented by the Exchange
may provide value to subscribers that utilize data feeds from more than
one NYSE market. This standardization enables greatly increased
efficiency for firms by allowing them to leverage their development
work on one market across multiple markets and reduces the overall
impact of the price increases.
    The Exchange notes that NYSE ArcaBook and NYSE Arca Integrated Feed
are entirely optional. Firms are not required to purchase NYSE ArcaBook
and NYSE Arca Integrated Feed. Firms that do purchase NYSE ArcaBook and
NYSE Arca Integrated Feed do so for the primary goals of using the data
feeds to increase profits, reduce expenses, and in some instances
compete directly with the Exchange (including for order flow); those
firms are able to determine for themselves whether NYSE ArcaBook and
NYSE Arca Integrated Feed or any other similar products are
attractively priced or not.
    Firms that do not wish to purchase NYSE ArcaBook and NYSE Arca
Integrated Feed at the new prices have a variety of alternative market
data products from which to choose,\20\ or if NYSE ArcaBook and NYSE
Arca Integrated Feed does not provide sufficient value to firms as
offered based on the uses those firms have or planned to make of it,
such firms may simply choose to conduct their business operations in
ways that do not use NYSE ArcaBook and NYSE Arca Integrated Feed or use
them at different levels or in different configurations. The Exchange
notes that broker-dealers are not required to purchase proprietary
market data to comply with their best execution obligations.\21\
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    \20\ See Nasdaq Rule 7023 (Nasdaq TotalView) and BZX Equities
Rule 11.22(a) and (c) (TCP Depth and Multicast Depth).
    \21\ See FINRA Regulatory Notice 15-46, ``Best Execution,''
November 2015.
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    The decision of the United States Court of Appeals for the District
of Columbia Circuit in NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir.
2010), upheld reliance by the Securities and Exchange Commission
(``Commission'') upon the existence of competitive market mechanisms to
set reasonable and equitably allocated 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.'

    Id. at 535 (quoting H.R. Rep. No. 94-229 at 92 (1975), as reprinted
in 1975 U.S.C.C.A.N. 323). 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.' '' \22\
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    \22\ NetCoalition, 615 F.3d at 535.
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    As explained below in the Exchange's Statement on Burden on
Competition, the Exchange believes that there is substantial evidence
of competition in the marketplace for proprietary market data and that
the Commission can rely upon such evidence in concluding that the fees
established in this filing are the product of competition and therefore
satisfy the relevant statutory standards. In addition, the existence of
alternatives to these data products, such as consolidated data and
proprietary data from other sources, as described below, further
ensures that the Exchange cannot set unreasonable fees, or fees that
are unreasonably discriminatory, when vendors and subscribers can
select such alternatives.
    As the NetCoalition decision noted, the Commission is not required
to undertake a cost-of-service or ratemaking approach. The Exchange
believes that, even if it were possible as a matter of economic theory,
cost-based pricing for proprietary market data would be so complicated
that it could not be done practically or offer any significant
benefits.\23\
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    \23\ The Exchange believes that cost-based pricing would be
impractical because it would create enormous administrative burdens
for all parties and the Commission to cost-regulate a large number
of participants and standardize and analyze extraordinary amounts of
information, accounts, and reports. In addition, and as described
below, it is impossible to regulate market data prices in isolation
from prices charged by markets for other services that are joint
products. Cost-based rate regulation would also lead to litigation
and may distort incentives, including those to minimize costs and to
innovate, leading to further waste. Under cost-based pricing, the
Commission would be burdened with determining a fair rate of return,
and the industry could experience frequent rate increases based on
escalating expense levels. Even in industries historically subject
to utility regulation, cost-based ratemaking has been discredited.
As such, the Exchange believes that cost-based ratemaking would be
inappropriate for proprietary market data and inconsistent with
Congress's direction that the Commission use its authority to foster
the development of the national market system, and that market
forces will continue to provide appropriate pricing discipline. See
Appendix C to NYSE's comments to the Commission's 2000 Concept
Release on the Regulation of Market Information Fees and Revenues,
which can be found on the Commission's Web site at http://www.sec.gov/rules/concept/s72899/buck1.htm.
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    For the reasons stated above, the Exchange believes that the
proposed fees are fair and equitable, and not unreasonably
discriminatory. As described above, the proposed fees are based on
pricing conventions and distinctions that exist in the Exchange's
current fee schedule, and the fee schedules of other exchanges. These
distinctions are each based on principles of fairness and equity that
have helped for many years to maintain fair, equitable, and not
unreasonably discriminatory fees, and that apply with equal or greater
force to the current proposal. Thus, although the proposal results in a
fee increase, these increases are based on careful analysis of
empirical data and the application of

time-tested pricing principles accepted and applied by the Commission
for many years.
    As described in greater detail below, if the market deems the NYSE
ArcaBook and NYSE Integrated Feeds not to provide fair value at the
prices to be charged, firms can discontinue or change the ways they use
these products because the products are optional to all parties. The
Exchange continually reviews pricing policies aimed at increasing
fairness and equitable allocation of fees among subscribers. NYSE Arca
believes that periodically it must adjust the subscriber fees to
reflect market forces and the Exchange believes it is an appropriate
time to adjust the fees that are the subject of this proposed rule
change to more accurately reflect the investments made to enhance these
products through technology upgrades.
    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

    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. An exchange's ability to
price its proprietary market data feed products is constrained by
actual competition for the sale of proprietary market data products,
the joint product nature of exchange platforms, and the existence of
alternatives to the Exchange's proprietary data.
The Existence of Actual Competition
    The market for proprietary data products is competitive and
inherently contestable because there is fierce competition for the
inputs necessary for the creation of proprietary data and strict
pricing discipline for the proprietary products themselves. Numerous
exchanges compete with one another for listings and order flow and
sales of market data itself, providing ample opportunities for
entrepreneurs who wish to compete in any or all of those areas,
including producing and distributing their own market data. Proprietary
data products are produced and distributed by each individual exchange,
as well as other entities, in a vigorously competitive market. Indeed,
the U.S. Department of Justice (``DOJ'') (the primary antitrust
regulator) has expressly acknowledged the aggressive actual competition
among exchanges, including for the sale of proprietary market data. In
2011, the DOJ stated that exchanges ``compete head to head to offer
real-time equity data products. These data products include the best
bid and offer of every exchange and information on each equity trade,
including the last sale.'' \24\
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    \24\ Press Release, U.S. Department of Justice, Assistant
Attorney General Christine Varney Holds Conference Call Regarding
NASDAQ OMX Group Inc. and IntercontinentalExchange Inc. Abandoning
Their Bid for NYSE Euronext (May 16, 2011), available at http://www.justice.gov/iso/opa/atr/speeches/2011/at-speech-110516.html; see
also Complaint in U.S. v. Deutsche Borse AG and NYSE Euronext, Case
No. 11-cv-2280 (DC Dist.) ] 24 (``NYSE and Direct Edge compete head-
to-head . . . in the provision of real-time proprietary equity data
products.'').
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    Moreover, competitive markets for listings, order flow, executions,
and transaction reports impose pricing discipline for the inputs of
proprietary data products and therefore constrain markets from
overpricing proprietary market data. Broker-dealers send their order
flow and transaction reports to multiple venues, rather than providing
them all to a single venue, which in turn reinforces this competitive
constraint. As a 2010 Commission Concept Release noted, the ``current
market structure can be described as dispersed and complex'' with
``trading volume . . . dispersed among many highly automated trading
centers that compete for order flow in the same stocks'' and ``trading
centers offer[ing] a wide range of services that are designed to
attract different types of market participants with varying trading
needs.'' \25\ More recently, former SEC Chair Mary Jo White reported
that competition for order flow in exchange-listed equities is
``intense'' and divided among many trading venues, including exchanges,
more than 40 alternative trading systems, and more than 250 broker-
dealers.\26\ And as the Commission's own Chief Administrative Law Judge
found after considering extensive fact and expert testimony and
documentary evidence on the subject, ``there is fierce competition for
trading services (or `order flow')'' among exchanges, and ``the record
evidence shows that competition plays a significant role in restraining
exchange pricing of depth-of-book products.'' In the Matter of the
Application of Securities Industry And Financial Markets Association
For Review of Actions Taken By Self-Regulatory Organizations, Initial
Decision Release No. 1015, Administrative Proceeding File No. 3-15350
(June 1, 2016), at pp. 8 and 33.
---------------------------------------------------------------------------

    \25\ Concept Release on Equity Market Structure, Securities
Exchange Act Release No. 61358 (Jan. 14, 2010), 75 FR 3594 (Jan. 21,
2010) (File No. S7-02-10). This Concept Release included data from
the third quarter of 2009 showing that no market center traded more
than 20% of the volume of listed stocks, further evidencing the
dispersal of and competition for trading activity. Id. at 3598. Data
available on ArcaVision show that from June 30, 2013 to June 30,
2014, no exchange traded more than 12% of the volume of listed
stocks by either trade or dollar volume, further evidencing the
continued dispersal of and fierce competition for trading activity.
See https://www.arcavision.com/Arcavision/arcalogin.jsp.
    \26\ Mary Jo White, Enhancing Our Equity Market Structure,
Sandler O'Neill & Partners, L.P. Global Exchange and Brokerage
Conference (June 5, 2014) (available on the Commission Web site),
citing Tuttle, Laura, 2014, ``OTC Trading: Description of Non-ATS
OTC Trading in National Market System Stocks,'' at 7-8.
---------------------------------------------------------------------------

    If an exchange succeeds in competing for quotations, order flow,
and trade executions, then it earns trading revenues and increases the
value of its proprietary market data products because they will contain
greater quote and trade information. Conversely, if an exchange is less
successful in attracting quotes, order flow, and trade executions, then
its market data products may be less desirable to customers in light of
the diminished content and data products offered by competing venues
may become more attractive. Thus, competition for quotations, order
flow, and trade executions puts significant pressure on an exchange to
maintain both execution and data fees at reasonable levels.
    In addition, in the case of products that are also redistributed
through market data vendors, such as Bloomberg and Thompson Reuters,
the vendors themselves provide additional price discipline for
proprietary data products because they control the primary means of
access to certain end users. These vendors impose price discipline
based upon their business models. For example, vendors that assess a
surcharge on data they sell are able to refuse to offer proprietary
products that their end users do not or will not purchase in sufficient
numbers. Vendors will not elect to make NYSE ArcaBook and NYSE Arca
Integrated Feed available unless their customers request it, and
customers will not elect to pay the proposed fees unless NYSE ArcaBook
and NYSE Arca Integrated Feed can provide value by sufficiently
increasing revenues or reducing costs in the customer's business in a
manner that will offset the fees. All of these factors operate as
constraints on pricing proprietary data products.
Joint Product Nature of Exchange Platform
    Transaction execution and proprietary data products are
complementary in that market data is both an input and a byproduct of
the execution service. In fact, proprietary market data and trade
executions are a paradigmatic example

of joint products with joint costs.\27\ The decision of whether and on
which platform to post an order will depend on the attributes of the
platforms where the order can be posted, including the execution fees,
data availability and quality, and price and distribution of data
products. Without a platform to post quotations, receive orders, and
execute trades, exchange data products would not exist.
---------------------------------------------------------------------------

    \27\ See generally Pricing of Market Data Services, An Economic
Analysis at vi (``Given the general structure of electronic order
books and electronic order matching, it is not possible to provide
transaction services without generating market data, and it is not
possible to generate trade transaction--or market depth--data
without also supplying a trade execution service. In economic terms,
trade execution and market data are joint products.'') (Oxera 2014).
---------------------------------------------------------------------------

    The costs of producing market data include not only the costs of
the data distribution infrastructure, but also the costs of designing,
maintaining, and operating the exchange's platform for posting quotes,
accepting orders, and executing transactions and the cost of regulating
the exchange to ensure its fair operation and maintain investor
confidence. The total return that a trading platform earns reflects the
revenues it receives from both products and the joint costs it incurs.
    Moreover, an exchange's broker-dealer customers generally view the
costs of transaction executions and market data as a unified cost of
doing business with the exchange. A broker-dealer will only choose to
direct orders to an exchange if the revenue from the transaction
exceeds its cost, including the cost of any market data that the
broker-dealer chooses to buy in support of its order routing and
trading decisions. If the costs of the transaction are not offset by
its value, then the broker-dealer may choose instead not to purchase
the product and trade away from that exchange. There is substantial
evidence of the strong correlation between order flow and market data
purchases. For example, in September 2015, more than 80% of the
transaction volume on each of the Exchange and the Exchange's
affiliates, NYSE and NYSE American LLC (``NYSE American''), was
executed by market participants that purchased one or more proprietary
market data products (the 20 firms were not the same for each market).
A supra-competitive increase in the fees for either executions or
market data would create a risk of reducing an exchange's revenues from
both products.
    Other market participants have noted that proprietary market data
and trade executions are joint products of a joint platform and have
common costs.\28\ The Exchange agrees with and adopts those discussions
and the arguments therein. The Exchange also notes that the economics
literature confirms that there is no way to allocate common costs
between joint products that would shed any light on competitive or
efficient pricing.\29\
---------------------------------------------------------------------------

    \28\ See Securities Exchange Act Release No. 72153 (May 12,
2014), 79 FR 28575, 28578 n.15 (May 16, 2014) (SR-NASDAQ-2014-045)
(``[A]ll of the exchange's costs are incurred for the unified
purposes of attracting order flow, executing and/or routing orders,
and generating and selling data about market activity. The total
return that an exchange earns reflects the revenues it receives from
the joint products and the total costs of the joint products.'').
See also Securities Exchange Act Release No. 62907 (Sept. 14, 2010),
75 FR 57314, 57317 (Sept. 20, 2010) (SR-NASDAQ-2010-110), and
Securities Exchange Act Release No. 62908 (Sept. 14, 2010), 75 FR
57321, 57324 (Sept. 20, 2010) (SR-NASDAQ-2010-111).
    \29\ See generally Mark Hirschey, Fundamentals of Managerial
Economics, at 600 (2009) (``It is important to note, however, that
although it is possible to determine the separate marginal costs of
goods produced in variable proportions, it is impossible to
determine their individual average costs. This is because common
costs are expenses necessary for manufacture of a joint product.
Common costs of production--raw material and equipment costs,
management expenses, and other overhead--cannot be allocated to each
individual by-product on any economically sound basis. . . . Any
allocation of common costs is wrong and arbitrary.''). This is not
new economic theory. See, e.g., F. W. Taussig, ``A Contribution to
the Theory of Railway Rates,'' Quarterly Journal of Economics V(4)
438, 465 (July 1891) (``Yet, surely, the division is purely
arbitrary. These items of cost, in fact, are jointly incurred for
both sorts of traffic; and I cannot share the hope entertained by
the statistician of the Commission, Professor Henry C. Adams, that
we shall ever reach a mode of apportionment that will lead to
trustworthy results.'').
---------------------------------------------------------------------------

    Analyzing the cost of market data product production and
distribution in isolation from the cost of all of the inputs supporting
the creation of market data and market data products will inevitably
underestimate the cost of the data and data products because it is
impossible to obtain the data inputs to create market data products
without a fast, technologically robust, and well-regulated execution
system, and system and regulatory costs affect the price of both
obtaining the market data itself and creating and distributing market
data products. It would be equally misleading, however, to attribute
all of an exchange's costs to the market data portion of an exchange's
joint products. Rather, all of an exchange's costs are incurred for the
unified purposes of attracting order flow, executing and/or routing
orders, and generating and selling data about market activity. The
total return that an exchange earns reflects the revenues it receives
from the joint products and the total costs of the joint products.
    As noted above, the level of competition and contestability in the
market is evident in the numerous alternative venues that compete for
order flow, including 12 equities self-regulatory organization
(``SRO'') markets, as well as various forms of alternative trading
systems (``ATSs''), including dark pools and electronic communication
networks (``ECNs''), and internalizing broker-dealers. SRO markets
compete to attract order flow and produce transaction reports via trade
executions, and two FINRA-regulated Trade Reporting Facilities compete
to attract transaction reports from the non-SRO venues.
    Competition among trading platforms can be expected to constrain
the aggregate return that each platform earns from the sale of its
joint products, but different trading platforms may choose from a range
of possible, and equally reasonable, pricing strategies as the means of
recovering total costs. For example, some platforms may choose to pay
rebates to attract orders, charge relatively low prices for market data
products (or provide market data products free of charge), and charge
relatively high prices for accessing posted liquidity. Other platforms
may choose a strategy of paying lower rebates (or no rebates) to
attract orders, setting relatively high prices for market data
products, and setting relatively low prices for accessing posted
liquidity. For example, Cboe Global Markets f/k/a Bats Global Markets
(``Bats'') and Direct Edge, which previously operated as ATSs and
obtained exchange status in 2008 and 2010, respectively, provided
certain market data at no charge on their Web sites in order to attract
more order flow, and used revenue rebates from resulting additional
executions to maintain low execution charges for their users.\30\ More
recently, Investors Exchange (``IEX''), which began to operate as an
ATS in 2013 and later obtained exchange status in 2016, currently
provides market data at no charge in order to attract order flow and
build market share. In this environment, there is no economic basis for
regulating maximum prices for one of the joint products in an industry
in which suppliers face competitive constraints with regard to the
joint offering.
---------------------------------------------------------------------------

    \30\ This is simply a securities market-specific example of the
well-established principle that in certain circumstances more sales
at lower margins can be more profitable than fewer sales at higher
margins; this example is additional evidence that market data is an
inherent part of a market's joint platform.

---------------------------------------------------------------------------

Existence of Alternatives
    The large number of SROs, ATSs, and internalizing broker-dealers
that currently produce proprietary data or are currently capable of
producing it provides further pricing discipline for proprietary data
products. Each SRO, ATS, and broker-dealer is currently permitted to
produce and sell proprietary data products, and many currently do,
including but not limited to the Exchange, NYSE, NYSE American, Nasdaq,
and Bats.
    The fact that proprietary data from ATSs, internalizing broker-
dealers, and vendors can bypass SROs is significant in two respects.
First, non-SROs can compete directly with SROs for the production and
sale of proprietary data products. By way of example, Bats and NYSE
Arca both published proprietary data on the Internet before registering
as exchanges. Second, because a single order or transaction report can
appear in an SRO proprietary product, a non-SRO proprietary product, or
both, the amount of data available via proprietary products is greater
in size than the actual number of orders and transaction reports that
exist in the marketplace. With respect to NYSE ArcaBook and NYSE Arca
Integrated Feed, competitors offer close substitute products.\31\
Because market data users can find suitable substitutes for most
proprietary market data products, a market that overprices its market
data products stands a high risk that users may substitute another
source of market data information for its own.
---------------------------------------------------------------------------

    \31\ See supra note 20.
---------------------------------------------------------------------------

    Those competitive pressures imposed by available alternatives are
evident in the Exchange's proposed pricing.
    In addition to the competition and price discipline described
above, the market for proprietary data products is also highly
contestable because market entry is rapid and inexpensive. The history
of electronic trading is replete with examples of entrants that swiftly
grew into some of the largest electronic trading platforms and
proprietary data producers: Archipelago, Bloomberg Tradebook, Island,
RediBook, Attain, TrackECN, Bats and Direct Edge. As noted above, Bats
launched as an ATS in 2006 and became an exchange in 2008, while Direct
Edge began operations in 2007 and obtained exchange status in 2010. And
more recently, IEX, which started operating as an ATS in 2013 has
accumulated more than 2% market share since it obtained exchange status
in 2016.
    In determining the proposed changes to the fees for NYSE ArcaBook
and NYSE Arca Integrated Feed, the Exchange considered the
competitiveness of the market for proprietary 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 numerous alternatives to the Exchange's
products, including 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 the attendant fees are not justified by the returns
that any particular vendor or data recipient 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

    The foregoing rule change is effective upon filing pursuant to
Section 19(b)(3)(A) \32\ of the Act and subparagraph (f)(2) of Rule
19b-4 \33\ thereunder, because it establishes a due, fee, or other
charge imposed by the Exchange.
---------------------------------------------------------------------------

    \32\ 15 U.S.C. 78s(b)(3)(A).
    \33\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \34\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \34\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Number SR-NYSEARCA-2017-130 on the subject line.

Paper Comments

     Send paper comments in triplicate to Brent J. Fields,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEARCA-2017-130. 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 Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549 on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change. Persons submitting
comments are cautioned that we do not redact or edit personal
identifying information from comment submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSEARCA-2017-130 and should
be submitted on or before December 13, 2017.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\35\
---------------------------------------------------------------------------

    \35\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-25231 Filed 11-21-17; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 77, Number 68 (Monday, April 9, 2012)]
[Notices]
[Pages 21132-21134]
[FR Doc No: 2012-8431]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-66729; File No. SR-NASDAQ-2012-037]

Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Relating to Fees for Newly Listed Indexes

April 3, 2012.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on March 28, 2012, The NASDAQ Stock Market LLC (``NASDAQ'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by NASDAQ. The Commission
is publishing this notice to solicit comments on the proposed rule
change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    NASDAQ proposes to modify pricing for NASDAQ members using the
NASDAQ Options Market (``NOM''), NASDAQ's facility for executing and
routing standardized equity and index options. Specifically, NASDAQ
proposes to adopt fees for newly listed indexes and make other minor
amendments to Chapter XV at Section 2 entitled ``NASDAQ Options
Market--Fees.''
    While changes proposed herein are effective upon filing, the
Exchange has designated these changes to be operative on April 2, 2012.
    The text of the proposed rule change is available on the Exchange's
Web site at http://www.nasdaq.cchwallstreet.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 Exchange included statements
concerning the purpose of and basis for the proposed rule change. The
text of these 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 aspects of such
statements.

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

1. Purpose
    NASDAQ proposes to amend Chapter XV, Section 2 to adopt fees for
the following newly listed index options: PHLX Semiconductor Sector\SM\
(SOX\SM\), PHLX Housing Sector\TM\ (HGX\SM\) and PHLX Oil Service
Sector\SM\ (OSX\SM\).\3\
---------------------------------------------------------------------------

    \3\ The Exchange plans on listing these index options on April
2, 2012.
---------------------------------------------------------------------------

    Specifically, the Exchange proposes to assess the following Fees
for Adding Liquidity and Fees for Removing Liquidity for transactions
in SOX, HGX and OSX:

----------------------------------------------------------------------------------------------------------------
                                                                                Non-NOM market    NOM market
                                     Customer      Professional        Firm            maker           maker
----------------------------------------------------------------------------------------------------------------
SOX, HGX and OSX:
Fee for Adding Liquidity........           $0.35           $0.45           $0.45           $0.45           $0.35
Fee for Removing Liquidity......           $0.35           $0.45           $0.45           $0.45           $0.35
----------------------------------------------------------------------------------------------------------------

Other Amendments
    The Exchange also proposes to amend the title of Chapter XV,
currently entitled ``Options Fees,'' to ``Options Pricing'' to more
specifically describe this Rule. The Exchange also proposes to amend
the title of ``All Other Options'' in Section 2(1) to ``Non-Penny Pilot
Options'' to more specifically describe those fees. Finally, the
Exchange proposes to reorder the Fees and Rebates in Section 2(1) to
move the current ``All Other Options'' after the ``Penny Pilot
Options'' fees and rebates.
2. Statutory Basis
    NASDAQ believes that the proposed rule changes are consistent with
the provisions of Section 6 of the Act,\4\ in general, and with Section
6(b)(4) of the Act,\5\ in particular, in that they provide for the
equitable allocation of reasonable dues, fees and other charges among
members and issuers and other persons using any facility or system
which NASDAQ operates or controls.
---------------------------------------------------------------------------

    \4\ 15 U.S.C. 78f.
    \5\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

    The Exchange believes that its proposal to adopt Fees for Adding
Liquidity and Fees for Removing Liquidity for transactions in SOX, HGX
and OSX is reasonable because the Exchange proposes to assess the same
fees that are currently assessed by NASDAQ OMX PHLX LLC (``Phlx'') for
these proprietary products.\6\ The Exchange has previously
distinguished other index products from the Non-Penny Pilot Options
fees and rebates.\7\ The Exchange assesses lower Fees for Removing
Liquidity in SOX, HGX and OSX as compared to the Fees for Removing
Liquidity in Non-Penny Pilot Options, which should encourage NOM
Participants to transact these newly listed index options. The Fees for
Adding Liquidity for transactions in SOX, HGX and OSX are the same or
higher than the Fees for Adding Liquidity in Non-Penny Pilot Options.
The Exchange believes that these fees are reasonable because these fees
correspond to comparable fees in place at Phlx for executions in SOX,
HGX, and OSX.\8\
---------------------------------------------------------------------------

    \6\ Despite the fact that SOX, HGX and OSX will be Multiply
Listed, Phlx will continue to assess market participants the fees
for Singly Listed Options to transact index options in SOX, HGX and
OSX. See SR-Phlx-2012-35. See also Section III of Phlx's Pricing
Schedule. Accordingly, Phlx would continue to assess the following
fees to transact index options in SOX, HGX and OSX as of April 2,
2012: Customers $0.35 per contract, Professionals $0.45 per
contract, Firms $0.45 per contract, Market Makers $0.35 per
contract, and Broker-Dealers $0.45 per contract. Non-NOM Market
Makers are registered market makers on another options market that
append the market maker designation to orders routed to NOM. This is
the equivalent of a Broker-Dealer on Phlx. While Phlx does not
assess both a Fee for Adding Liquidity and Fee for Removing
Liquidity, it assesses each side of the transaction the Options
Transaction Charge.
    \7\ See Chapter XV, Section 2(1) fees.
    \8\ See Phlx's Pricing Schedule at Section III.
---------------------------------------------------------------------------

    The Exchange believes that its proposal to adopt Fees for Removing
Liquidity for transactions in SOX, HGX and OSX is equitable and not
unfairly discriminatory in that Customers and NOM Market Makers are
assessed lower Fees for Removing Liquidity, $0.35 per contract, as
compared to other market participants because Customer liquidity
benefits all market participants and NOM Market Makers have certain
obligations to the market and regulatory requirements, which normally
do not apply to other market participants.\9\ The Exchange's proposal
to assess all other market participants, Professionals, Firms and Non-
NOM Market Makers, a $0.45 per contract Fee for Removing Liquidity for
transactions in SOX, HGX and OSX is equitable and not unfairly
discriminatory because these participants are uniformly assessed the
same fee.
---------------------------------------------------------------------------

    \9\ See Exchange Rules Section VII, Market Participants,
Sections 5, Obligations of Market Makers, and Section 6, Market
Maker Quotations.
---------------------------------------------------------------------------

    The Exchange believes that its proposal to adopt Fees for Adding
Liquidity for transactions in SOX, HGX and OSX is equitable and not
unfairly discriminatory because the Customer Fee for Adding Liquidity
for transacting SOX, HGX and OSX of $0.35 per contract is lower than
fees assessed other market participants for transacting SOX, HGX and
OSX, except NOM Market Makers. This is because, as previously stated,
the Exchange desires to attract Customer order flow to the market,
which liquidity benefits all market participants. The NOM Market Maker
Fee for Adding Liquidity for transactions in SOX, HGX and OSX of $0.35
per contract is also lower than other market participants, except
Customers, because NOM Market Makers have certain obligations to the
market and regulatory requirements which are not borne by Customers,
Professionals, Non-NOM Market Makers and Firms. The Exchange uniformly
assesses Professionals, Firms and Non-NOM Market Makers a Fee for
Adding Liquidity for transactions in SOX, HGX and OSX of $0.45 per
contract.
    The Exchange also believes its proposal to amend the title of
Chapter XV to ``Options Pricing'' is reasonable, equitable and not
unfairly discriminatory because the Exchange believes that the proposed
title more specifically describes the fees, rebates and other charges
reflected in the Chapter. The Exchange also believes that amending the
title of Section 2(1) from ``All Other Options'' to ``Non-Penny Pilot
Options'' conforms the description of these fees to that of other
options exchanges.\10\ Finally, the Exchange believes that reordering
the fees in Section 2(1) is reasonable, equitable and not unfairly
discriminatory because the Exchange is grouping the fees for indexes
for ease of reference.
---------------------------------------------------------------------------

    \10\ Phlx utilizes the term non-Penny Pilot in Section II of its
Fee Schedule. See Phlx's Pricing Schedule.
---------------------------------------------------------------------------

    The Exchange operates in a highly competitive market comprised of
nine U.S. options exchanges in which sophisticated and knowledgeable
market participants can and do send order flow to competing exchanges
if they deem fee levels at a particular exchange to be excessive. The
Exchange believes that the proposed fee scheme is competitive and
similar to other fees in place on other exchanges. The Exchange
believes that this competitive marketplace materially impacts the fees
present on the Exchange today and substantially influences the proposal
set forth above.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act.\11\ At any time within 60 days of the
filing of the proposed rule change, the Commission summarily may
temporarily suspend such rule change if it appears to the Commission
that such action is necessary or appropriate in the public interest,
for the protection of investors, or otherwise in furtherance of the
purposes of the Act. If the Commission takes such action, the
Commission shall institute proceedings to determine whether the
proposed rule should be approved or disapproved.
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78s(b)(3)(A)(ii).
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NASDAQ-2012-037 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NASDAQ-2012-037. 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 Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site 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. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NASDAQ-2012-037 and should
be submitted on or before April 30, 2012.
    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\12\
---------------------------------------------------------------------------

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

Elizabeth M. Murphy,
Secretary.
[FR Doc. 2012-8431 Filed 4-6-12; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 77, Number 179 (Friday, September 14, 2012)]
[Notices]
[Pages 56835-56837]
[FR Doc No: 2012-22670]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. PF12-9-000]

Constitution Pipeline Company, LLC; Notice of Intent To Prepare
an Environmental Impact Statement for the Planned Constitution Pipeline
Project, Request for Comments on Environmental Issues, and Notice of
Public Scoping Meetings

    The staff of the Federal Energy Regulatory Commission (FERC or
Commission) will prepare an environmental impact statement (EIS) that
will address the environmental impacts of the proposed Constitution
Pipeline Project (Project) involving construction and operation of
facilities by Constitution Pipeline Company, LLC (Constitution) in
Susquehanna County, Pennsylvania; and Broome, Chenango, Delaware, and
Schoharie Counties, New York. This EIS will be used by the Commission
in its decision-making process to determine whether the project is in
the public convenience and necessity.
    This notice announces the opening of the scoping process that the
Commission will use to gather input from the public and interested
agencies on the project. Your input will help the Commission staff
determine what issues need to be evaluated in the EIS. Please note that
the scoping period will close on October 9, 2012.
    This notice is being sent to the Commission's current environmental
mailing list for this project. State and local government
representatives are asked to notify their constituents of this planned
project and encourage them to comment on their areas of concern.
Comments may be submitted in written form or verbally. Further details
on how to submit written comments are provided in the ``Public
Participation'' section of this notice. In lieu of or in addition to
sending written comments, we \1\ invite you to attend the public
scoping meetings scheduled as follows:
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    \1\ ``We'', ``us'', and ``our'' refer to the environmental staff
of the Office of Energy Projects (OEP).

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           Date and time                          Location
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September 24, 2012, beginning at 7- Afton High School, 29 Academy
 10 p.m. EDT.                        Street, Afton, New York 13730.
September 25, 2012, beginning at 7- Schoharie High School, 136 Academy
 10 p.m. EDT.                        Dr., Schoharie, New York 12157,
                                     (attendees should enter via the
                                     main high school office entrance).
September 26, 2012, beginning at 7- Blue Ridge High School, 5058 School
 10 p.m. EDT.                        Road, New Milford, Pennsylvania
                                     18834.
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    The public meetings are designed to provide you with an opportunity
to offer your comments on the Project. Constitution representatives
will be present one hour before each meeting to describe their
proposal, present maps, and answer questions. Interested groups and
individuals are encouraged to attend the meetings and to present
comments on the issues they believe should be addressed in the EIS. A
transcript of each meeting will be made so that your comments will be
accurately recorded.
    If you are a landowner receiving this notice, you may be contacted
by a pipeline company representative about the acquisition of an
easement to construct, operate, and maintain the planned facilities.
Constitution would seek to negotiate a mutually acceptable agreement.
However, if the Project is approved by the Commission, that approval
conveys with it the right of eminent domain. Therefore, if easement
negotiations fail to produce an agreement, Constitution could initiate
condemnation proceedings where compensation would be determined in
accordance with state law.
    A fact sheet prepared by the FERC entitled ``An Interstate Natural
Gas Facility on My Land? What Do I Need To Know?'' is available for
viewing on the FERC Web site (www.ferc.gov). This fact sheet addresses
a number of typically-asked questions, including the use of eminent
domain and how to participate in the Commission's proceedings.

Summary of the Proposed Project

    Constitution has announced their plan to construct and operate
approximately 120.6 miles of new 30-inch-diameter pipeline and
associated pipeline facilities in Pennsylvania and New York. The
Constitution Pipeline Project would provide about 650,000 dekatherms
per day (Dth/d) of natural gas from two receipt points in Susquehanna
County, Pennsylvania to two new delivery points with the existing
Tennessee Gas Pipeline and the Iroquois Gas Transmission Pipeline in
Schoharie County, New York.
    The proposed Constitution Pipeline Project would consist of the
following:
     Construction of approximately 120.6 miles of new 30-inch-
diameter pipeline from Susquehanna County, Pennsylvania through Broome,
Chenango, Delaware, and Schoharie Counties, New York;
     Installation of four new meter and regulation (M&R)
stations including:
    [ssquf] Central M&R Receipt Station--a new M&R receipt station,
including

pressure regulation, in Susquehanna County, Pennsylvania;
    [ssquf] Southwestern M&R Receipt Station--a new M&R receipt
station, including pressure regulation, in Susquehanna County,
Pennsylvania;
    [ssquf] Tennessee Gas M&R Delivery Station--a new M&R delivery
station, including pressure regulation, in Schoharie County, New York;
and
    [ssquf] Iroquois M&R Delivery Station--a new M&R delivery station,
including pressure regulation, in Schoharie County, New York.
     Construction of a new compressor station:
    [ssquf] Schoharie Compressor Station--installation of two Solar
Mars 100 16,000-horsepower turbines in Schoharie County, New York;
     Installation of a pig \2\ launcher at MP 0.0 in
Susquehanna County, Pennsylvania and installation of a pig receiver at
MP 120.6 in Schoharie County, New York; and
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    \2\ A pig is a tool that can be used to clean and dry a pipeline
and/or to inspect it for damage or corrosion.
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     Installation of eight new main line valves assemblies; two
in Susquehanna County, Pennsylvania; one in Broome County, New York;
two in Delaware County, New York; and three in Schoharie County, New
York.
    The general location of the proposed project facilities is shown in
Appendix 1.\3\
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    \3\ The appendices referenced in this notice are not being
printed in the Federal Register. Copies of appendices were sent to
all those receiving this notice in the mail and are available at
www.ferc.gov using the link called ``eLibrary'' or from the
Commission's Public Reference Room, 888 First Street NE.,
Washington, DC 20426, or call<PHONE_NUMBER>. For instructions on
connecting to eLibrary, refer to the last page of this notice.
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    At the request of the FERC, Constitution has developed and further
refined an alternative route which generally parallels Interstate 88
for a substantial portion of the route (Alternative M). Alternative M
would be partially located in Otsego County, New York, in addition to
the counties previously mentioned. Constitution recently mailed
information regarding this route to potentially affected landowners.
Landowners affected by this alternative are included on our mailing
list. Your input on these and other route alternatives is requested.

Land Requirements for Construction

    Constitution is still in the planning phase for the Project, and
workspace requirements have not been finalized. However, construction
would disturb approximately 1,530 acres of land for the aboveground
facilities and the pipeline. Following construction, about 737 acres
would be used for permanent operation of the project's facilities. The
remaining acreage would be restored and allowed to revert to former
uses.

The EIS Process

    The National Environmental Policy Act (NEPA) requires the
Commission to take into account the environmental impacts that could
result from an action whenever it considers the issuance of a
Certificate of Public Convenience and Necessity. NEPA also requires us
to discover and address concerns the public may have about proposals.
This process is referred to as scoping. The main goal of the scoping
process is to focus the analysis in the EIS on the important
environmental issues. By this notice, the Commission requests public
comments on the scope of the issues to address in the EIS. All comments
received will be considered during the preparation of the EIS.
    In the EIS we will discuss impacts that could occur as a result of
the construction and operation of the Project under these general
headings:
     Geology and Soils;
     Land Use;
     Water Resources, Fisheries, and Wetlands;
     Vegetation and Wildlife;
     Endangered and Threatened Species;
     Cultural Resources;
     Air Quality and Noise;
     Socioeconomics;
     Cumulative Impacts; and
     Public Safety.
    We will also evaluate reasonable alternatives to the Project or
portions of the Project, and make recommendations on how to lessen or
avoid impacts on the various resource areas.
    Although no formal application has been filed, we have already
initiated our NEPA review under the Commission's Pre-filing process.
The purpose of the Pre-filing process is to encourage early involvement
of interested stakeholders and to identify and resolve issues before an
application is filed with the FERC. As part of our Pre-filing review,
we have begun to contact some federal and state agencies to discuss
their involvement in the scoping process and the preparation of the
EIS. In addition, representatives from the FERC participated in public
Open House meetings sponsored by Constitution in the project area in
July 2012, and will again in September 2012, to explain the
environmental review process to interested stakeholders.
    Our independent analysis of the issues will be presented in the
EIS. The EIS will be published and distributed for public comment. We
will consider all timely comments and revise the document, as
necessary, before issuing a final EIS. To ensure your comments are
considered, please carefully follow the instructions in the ``Public
Participation'' section of this notice.
    With this notice, we are asking agencies with jurisdiction and/or
special expertise with respect to environmental issues to formally
cooperate with us in the preparation of the EIS. These agencies may
choose to participate once they have evaluated the proposal relative to
their responsibilities. Agencies that would like to request cooperating
agency status should follow the instructions for filing comments
provided under the ``Public Participation'' section of this notice.

Consultations Under Section 106 of the National Historic Preservation
Act

    In accordance with the Advisory Council on Historic Preservation's
implementing regulations, we are using this notice to solicit the views
of the public on the project's potential effects on historic
properties.\4\ We will document our findings on the impacts on cultural
resources and summarize the status of consultations under section 106
of the National Historic Preservation Act in our EIS.
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    \4\ The Advisory Council on Historic Preservation's regulations
are at Title 36, Code of Federal Regulations, Part 800. Historic
properties are defined in those regulations as any prehistoric or
historic district, site, building, structure, or object included in
or eligible for inclusion in the National Register for Historic
Places.
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Currently Identified Environmental Issues

    We have already identified several issues and alternatives that we
think deserve attention based on a preliminary review of the proposed
facilities, comments made to us at Constitution's open houses,
preliminary consultations with other agencies, and the environmental
information provided by Constitution. This preliminary list of issues
and alternatives may be changed based on your comments and our
analysis:
     Impacts from shallow bedrock and blasting;
     Potential effect on federal and state-listed sensitive
species (such as Indiana bats and migratory birds);
     Impacts to residential areas;
     Impacts to areas recently flooded;
     Visual and other impacts from forest clearing, including
impacts to ``greenfield'' areas;
     Impacts to agriculture;
     Effects on the local air quality and noise environment
from construction and operation of the proposed facilities;
     Assessment of the no action alternative, existing systems
and

alternative system configurations, and alternative routes to reduce or
avoid environmental impacts; and
     Assessment of the I-88 Alternative (currently Alternative
M) and other alternatives.

Public Participation

    You can make a difference by providing us with your specific
comments or concerns about the project. Your comments should focus on
the potential environmental effects, reasonable alternatives, and
measures to avoid or lessen environmental impact. The more specific
your comments, the more useful they will be.
    To ensure that your comments are timely and properly recorded,
please send your comments so that they will be received in Washington,
DC on or before October 9, 2012.
    For your convenience, there are three methods you can use to submit
your comments to the Commission. In all instances, please reference the
project docket number (PF12-9-000) with your submission. The Commission
encourages electronic filing of comments and has expert eFiling staff
available to assist you at<PHONE_NUMBER> or<EMAIL_ADDRESS>    (1) You may file your comments electronically by using the Quick
Comment feature, which is located at www.ferc.gov under the link called
``Documents and Filings.'' A Quick Comment is an easy method for
interested persons to submit text-only comments on a project;
    (2) You may file your comments electronically by using the
``eFiling'' feature, that is listed under the ``Documents and Filings''
link. eFiling involves preparing your submission in the same manner as
you would if filing on paper, and then saving the file on your
computer's hard drive. You will attach that file to your submission.
New eFiling users must first create an account by clicking on the link
called ``Sign up'' or ``eRegister.'' You will be asked to select the
type of filing you are making. A comment on a particular project is
considered a ``Comment on a Filing;'' or
    (3) You may file a paper copy of your comments at the following
address: Kimberly D. Bose, Secretary, Federal Energy Regulatory
Commission, 888 First Street NE., Room 1A, Washington, DC 20426.

Environmental Mailing List

    The environmental mailing list includes federal, state, and local
government representatives and agencies; elected officials;
environmental and public interest groups; Native American Tribes; other
interested parties; and local libraries and newspapers. This list also
includes all affected landowners (as defined in the Commission's
regulations) who are potential right-of-way grantors, whose property
may be used temporarily for project purposes, or who own homes within
certain distances of aboveground facilities, and anyone who submits
comments on the project. We will update the environmental mailing list
as the analysis proceeds to ensure that we send the information related
to this environmental review to all individuals, organizations, and
government entities interested in and/or potentially affected by the
Project.
    Copies of the completed draft EIS will be sent to the environmental
mailing list for public review and comment. If you would prefer to
receive a paper copy of the document instead of the CD version or would
like to remove your name from the mailing list, please return the
attached Mailing List Form (Appendix 2).

Becoming an Intervenor

    Once Constitution formally files their application with the
Commission, you may want to become an ``intervenor,'' which is an
official party to the Commission's proceeding. Intervenors play a more
formal role in the process and are able to file briefs, appear at
hearings, and be heard by the courts if they choose to appeal the
Commission's final ruling. An intervenor formally participates in a
Commission proceeding by filing a request to intervene.
    Instructions for becoming an intervenor are included in the User's
Guide under the ``e-filing'' link on the Commission's Web site. Please
note that the Commission will not accept requests for intervenor status
at this time. You must wait until a formal application for the project
is filed with the Commission.

Additional Information

    Additional information about the project is available from the
Commission's Office of External Affairs at 1-866-208-FERC or on the
FERC Web site (www.ferc.gov) using the ``eLibrary'' link. Click on the
eLibrary link, click on ``General Search,'' and enter the docket
number, excluding the last three digits in the Docket Number field
(i.e., PF12-9). Be sure you have selected an appropriate date range.
For assistance, please contact FERC Online Support at
<EMAIL_ADDRESS>or toll free at 1-866-208-3676, or for TTY,
contact<PHONE_NUMBER>. The eLibrary link on the FERC Internet Web site
also provides access to the texts of formal documents issued by the
Commission, such as orders, notices, and rule makings.
    In addition, the Commission offers a free service called
eSubscription that allows you to keep track of all formal issuances and
submittals in specific dockets. This can reduce the amount of time you
spend researching proceedings by automatically providing you with
notification of these filings, document summaries, and direct links to
the documents. Go to www.ferc.gov/esubscribenow.htm.
    Public meetings or site visits will be posted on the Commission's
calendar located at www.ferc.gov/EventCalendar/EventsList.aspx along
with other related information.
    Finally Constitution has established an internet Web site for the
Project at www.constitutionpipeline.com. The Web site includes a
description of the Project, viewing locations for Project materials and
maps, frequently asked questions and responses, and links to related
documents. You can also request additional information or provide
comments directly to Constitution at<PHONE_NUMBER>.

    Dated: September 7, 2012.
Kimberly D. Bose,
Secretary.
[FR Doc. 2012-22670 Filed 9-13-12; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register: October 26, 2009 (Volume 74, Number 205)]
[Notices]
[Page 54990-54991]
[DOCID:fr26oc09-66]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 2696-033]

Albany Engineering Corporation: Town of Stuyvesant; Notice of
Scoping Meetings and Environmental Site Review and Soliciting Scoping
Comments

October 16, 2009.
    Take notice that the following hydroelectric application has been
filed with the Commission and is available for public inspection:
    a. Type of application: New Major License.
    b. Project No.: 2696-033.
    c. Date filed: July 31, 2009.
    d. Submitted by: Albany Engineering Corporation and the Town of
Stuyvesant.
    e. Name of project: Stuyvesant Falls Hydroelectric Project.
    f. Location: On Kinderhook Creek (in the Hudson River drainage
basin) in the town of Stuyvesant, Columbia County, New York. The
project does not occupy any federal lands.
    g. Filed pursuant to: Federal Power Act, 16 U.S.C. 791(a)-825(r).
    h. Applicant contact: Mr. James A. Besha, P.E., President, Albany
Engineering Corporation, 5 Washington Square, Albany, New York 12205;
(518) 456-7712.
    i. FERC contact: Carolyn Templeton at<PHONE_NUMBER> or
<EMAIL_ADDRESS>    j. Deadline for filing scoping comments: December 17, 2009.
    All documents may be filed electronically via the Internet. See 18
CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web
site (http://www.ferc.gov/docs-filing/ferconline.asp) under the
``eFiling'' link. For a simpler method of submitting text only
comments, click on ``Quick Comment.'' For assistance, please contact
FERC Online Support at<EMAIL_ADDRESS>call toll-free at
(866) 208-3676; or, for TTY, contact<PHONE_NUMBER>. Although the
Commission strongly encourages electronic filing, documents may also be
paper-filed. To paper-file, mail an original and eight copies to:
Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888
First Street, NE., Washington, DC 20426.
    The Commission's Rules of Practice and Procedure require all
interveners filing documents with the Commission to serve a copy of
that document on each person on the official service list for the
project. Further, if an intervener

files comments or documents with the Commission relating to the merits
of an issue that may affect the responsibilities of a particular
resource agency, they must also serve a copy of the document on that
resource agency.
    k. This application is not ready for environmental analysis at this
time.
    l. The Stuyvesant Falls Hydroelectric Project is located on
Kinderhook Creek in Columbia County, New York. All project features
pre-date the license by 80 years, and there were no operational changes
or construction when the project was licensed in 1980, backdated to
1965. The Stuyvesant Falls Hydroelectric Project consists of a 13-foot-
high, 240-foot-long, masonry gravity dam and stone and concrete intake
structure that impounds Kinderhook Creek, forming a 46-acre reservoir
with a normal pool elevation of 174.3 feet USGS datum. A Taintor gate
and trash sluice is located near the south abutment of the gravity dam.
The intake structure is enclosed in a prefabricated steel intake house
and carries water from the reservoir to two 7.5-foot-diameter, 2,860-
foot-long, riveted-steel pipelines. From the pipelines, water flows
into a 25-foot-diameter surge tank. Water is then transported from the
surge tank to a brick and steel powerhouse via two 200-foot-long steel
penstocks. The powerhouse contains a single 2.8-megawatt horizontal
double runner Francis turbine.
    m. A copy of the application is available for review at the
Commission in the Public Reference Room or may be viewed on the
Commission's Web site at http://www.ferc.gov using the ``eLibrary''
link. Enter the docket number excluding the last three digits in the
docket number field to access the document. For assistance, contact
FERC Online Support at<EMAIL_ADDRESS>or toll-free at 1-
866-208-3676, or for TTY,<PHONE_NUMBER>. A copy is also available for
inspection and reproduction at the address in item (h) above.
    You may also register online at http://www.ferc.gov/docs-filing/
esubscription.asp to be notified via e-mail of new filings and
issuances related to this or other pending projects. For assistance,
contact FERC Online Support.
    n. Scoping Process.
    The Commission intends to prepare an Environmental Assessment (EA)
on the project in accordance with the National Environmental Policy
Act. The EA will consider both site-specific and cumulative
environmental impacts and reasonable alternatives to the proposed
action.

Scoping Meetings

    FERC staff will conduct one daytime scoping meeting and one evening
scoping meeting. The daytime scoping meeting will focus on resource
agency and non-governmental organization (NGO) concerns, while the
evening scoping meeting is primarily for public input. All interested
individuals, organizations, and agencies are invited to attend one or
both of the meetings, and to assist the staff in identifying the scope
of the environmental issues that should be analyzed in the EA. The
times and locations of these meetings are as follows:

Evening Scoping Meeting

    Date and Time: Monday, November 16, 2009, at 6 p.m.
    Location: Stuyvesant Town Hall, 5 Sunset Drive, Stuyvesant, NY
12173.
    Phone Number:<PHONE_NUMBER>.

Daytime Scoping Meeting

    Date and Time: Tuesday, November 17, 2009, at 10 a.m.
    Location: Stuyvesant Town Hall, 5 Sunset Drive, Stuyvesant, NY
12173.
    Phone Number:<PHONE_NUMBER>.
    Copies of the Scoping Document (SD1) outlining the subject areas to
be addressed in the EA were distributed to the parties on the
Commission's mailing list. Copies of the SD1 will be available at the
scoping meeting or may be viewed on the Web at http://www.ferc.gov
using the ``eLibrary'' link [see item (m) above].

Environmental Site Review

    The Applicant and FERC staff will conduct a project environmental
site review beginning at 1 p.m. (EST) on Monday, November 16, 2009. All
interested individuals, organizations, and agencies are invited to
attend. All participants should meet at the Stuyvesant Falls
Hydroelectric Project powerhouse. All participants are responsible for
their own transportation to the site. Please notify Wendy Carey, Albany
Engineering Corporation at<PHONE_NUMBER>, ext. 401 or
<EMAIL_ADDRESS>by November 9, 2009, if you plan to attend
the environmental site review. Directions are as follows:
    From Albany, take 90E to Exit 12, US-9 toward Hudson. Turn Right
onto US-9 S. Stay straight through circular onto NY-9H S. Take slight
right onto CR-25 into Stuyvesant Falls. Take right onto CR-25A.
Driveway is on the left approximately 500 feet before old bridge.
    From Hudson, drive north on 66 to 9H. Go north on 9H to CR-25. Go
south on CR-25 into Stuyvesant Falls. Take a right onto CR-25A.
Driveway is on the left approximately 500 feet before old bridge.

Objectives

    At the scoping meetings, the staff will: (1) Summarize the
environmental issues tentatively identified for analysis in the EA; (2)
solicit from the meeting participants all available information,
especially quantifiable data, on the resources at issue; (3) encourage
statements from experts and the public on issues that should be
analyzed in the EA, including viewpoints in opposition to, or in
support of, the staff's preliminary views; (4) determine the resource
issues to be addressed in the EA; and (5) identify those issues that
require a detailed analysis, as well as those issues that do not
require a detailed analysis.

Procedures

    The meetings are recorded by a stenographer and become part of the
formal record of the Commission proceeding on the project. Individuals,
organizations, and agencies with environmental expertise and concerns
are encouraged to attend the meeting and to assist the staff in
defining and clarifying the issues to be addressed in the EA.

Kimberly D. Bose,
Secretary.
[FR Doc. E9-25611 Filed 10-23-09; 8:45 am]

BILLING CODE 6717-01-P