[Federal Register: December 1, 2008 (Volume 73, Number 231)]
[Notices]
[Page 72906-72909]
[DOCID:fr01de08-148]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket No. FRA-2000-7257; Notice No. 50]

Railroad Safety Advisory Committee (RSAC); Working Group Activity
Update

AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).

ACTION: Announcement of Railroad Safety Advisory Committee (RSAC)
Working Group activities.

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SUMMARY: FRA is updating its announcement of RSAC's Working Group
activities to reflect its current status.

FOR FURTHER INFORMATION CONTACT: Larry Woolverton, RSAC Coordinator,
FRA, 1200 New Jersey Avenue, SE., Mailstop 25, Washington, DC 20590,
(202) 493-6212; or Grady Cothen, Deputy Associate Administrator for
Safety, FRA, 1200 New Jersey Avenue, SE., Mailstop 25, Washington, DC
20590,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: This notice serves to update FRA's last
announcement of working group activities and status reports of August
29, 2008 (73 FR 51041). The 36th full RSAC Committee meeting was held
September 10, 2008, and the 37th meeting is scheduled for December 10,
2008, at the Marriott Metro Center Hotel Ballroom in Washington, DC.
    Since its first meeting in April of 1996, the RSAC has accepted 26
tasks. Status for each of the open tasks (neither completed nor
terminated) is provided below:

Open Tasks

    Task 96-4--Tourist and Historic Railroads. This Task includes
reviewing the appropriateness of the agency's current policy regarding
the applicability of existing and proposed regulations to tourist,
excursion, scenic, and historic railroads. This Task was accepted on
April 2, 1996, and a Working Group was established. The Working Group
monitored the steam locomotive regulation task. Planned future
activities involve the review of other regulations for possible
adaptation to the safety needs of tourist and historic railroads.
Contact: Grady Cothen,<PHONE_NUMBER>.
    Task 03-01--Passenger Safety. This Task includes updating and
enhancing the regulations pertaining to passenger safety, based on
research and experience. This Task was accepted on May 20, 2003, and a
Working Group was established. Prior to embarking on substantive
discussions of a specific task, the Working Group set forth in writing
a specific description of the task. The Working Group reports planned
activity to the full Committee at each scheduled full RSAC meeting,
including milestones for completion of projects and progress toward
completion. At the first meeting, held September 9-10, 2003, a
consolidated list of issues was completed. At the second meeting, held
November 6-7, 2003, four task groups were established: Emergency
Preparedness, Mechanical, Crashworthiness, and Track/Vehicle
Interaction. The task forces met and reported on activities for Working
Group consideration at the third meeting, held May 11-12, 2004, and a
fourth meeting was held October 26-27, 2004. The Working Group met on
March 21-22, 2006, and again on September 12-13, 2006, at which time
the group agreed to establish a task force on General Passenger Safety.
The full Passenger Safety Working Group met on April 17-18, 2007;
December 11-12, 2007; and June 18, 2008. The next meeting is scheduled
for November 13, 2008. Contact: Charles Bielitz,<PHONE_NUMBER>.
    (Emergency Preparedness Task Force) At the Working Group meeting of
March 9-10, 2005, the Working Group received and approved the consensus
report of the Emergency Preparedness Task Force related to emergency
communication, emergency egress, and rescue access. These
recommendations were presented

to and approved by the full RSAC Committee on May 18, 2005. The Working
Group met on September 7-8, 2005, and additional, supplementary
recommendations were presented to and accepted by the full RSAC on
October 11, 2005. The Notice of Proposed Rulemaking (NPRM) was
published on August 24, 2006 (71 FR 50275), and was open for comment
until October 23, 2006. The Working Group agreed upon recommendations
for the final rule, including resolution of final comments received,
during the April 17-18, 2007, meeting. The recommendations were
presented to and approved by the full RSAC on June 26, 2007. The
Passenger Train Emergency Systems Final Rule, focusing on emergency
communication, emergency egress, and rescue access, was published on
February 1, 2008 (73 FR 6370). The Task Force met on October 17-18,
2007, and reached consensus on draft rule text for a followup NPRM on
Passenger Train Emergency Systems, focusing on low-location emergency
exit path marking, emergency lighting, and emergence signage. The Task
Force presented the draft rule text to the Passenger Safety Working
Group on December 11-12, 2007, and the consensus draft rule text was
presented to and approved by full RSAC vote during the February 20,
2008, meeting. At its most recent meeting, held May 13-14, 2008, the
Task Force recommended clarifying the applicability of backup emergency
communication system requirements in the February 1, 2008, final rule,
and FRA announced its intention to exercise limited enforcement
discretion for a new provision amending instruction requirements for
emergency window exit removal. The Working Group ratified these
recommendations on June 19, 2008. No additional Task Force meetings are
currently scheduled. Contact: Brenda Moscoso,<PHONE_NUMBER>.
    (Mechanical Task Force) (COMPLETED) Initial recommendations on
mechanical issues (revisions to Title 49 Code of Federal Regulations
(CFR) Part 238) were approved by the full Committee on January 26,
2005. At the Working Group meeting of September 7-8, 2005, the Task
Force presented additional perfecting amendments and the full RSAC
approved them on October 11, 2005. An NPRM was published in the Federal
Register on December 8, 2005 (70 FR 73070). Public comments were due by
February 17, 2006. The final rule was published in the Federal Register
on October 19, 2006 (71 FR 61835), effective December 18, 2006.
    (Crashworthiness Task Force) Among its efforts, the Crashworthiness
Task Force provided consensus recommendations on static-end strength
that were adopted by the Working Group on September 7-8, 2005. The full
Committee accepted the recommendations on October 11, 2005. The Front-
End Strength of Cab Cars and Multiple-Unit Locomotives NPRM was
published in the Federal Register on August 1, 2007 (72 FR 42016), with
comments due by October 1, 2007. A number of comments were entered into
the docket, and a Crashworthiness Task Force meeting was held September
9, 2008, to resolve comments on the NPRM. Based on the consensus
language agreed to at the meeting, FRA has prepared the text of the
final rule, incorporating the resolutions made at the Task Force
meeting, and the final rule language was adopted at the Passenger
Safety Working Group meeting held on November 13, 2008. The language
will be presented for vote at the December 10, 2008, full RSAC meeting
for approval. If approved by the RSAC, the rule will go forward with a
target publication date of April 2009. Contact: Gary Fairbanks, (202)
493-6322.
    (Vehicle/Track Interaction Task Force) This Task Force is
developing proposed revisions to 49 CFR Parts 213 and 238, principally
regarding high-speed passenger service. The Task Force met on October
9-11 and again on November 19-20, 2007, in Washington, DC, and
presented the final Task Force Report and final recommendations and
proposed rule text for approval by the Passenger Safety Working Group
at the December 11-12, 2007, meeting. The final report and the proposed
rule text were approved by the Working Group and were presented to and
approved by full RSAC vote during the February 20, 2008, meeting. The
group last met on February 27-28, 2008, and FRA is currently drafting
an NPRM with a target publication date of April 2009. No additional
Task Force meetings are currently scheduled. Contact: John Mardente,
(202) 493-1335.
    (General Passenger Safety Task Force) At the Working Group meeting
on April 17-18, 2007, the Task Force presented a progress report to the
Working Group. The Task Force met on July 18-19, 2007, and afterwards
it reported proposed reporting cause codes for injuries involving the
platform gap, which were approved by the Working Group by mail ballot
in September 2007. The full RSAC approved the recommendations for
changes to 49 CFR Section 225 accident/incident cause codes on October
25, 2007. The Task Force continues work on passenger train door
securement, ``second train in station,'' trespasser incidents, and
System Safety-based solutions by developing a regulatory approach to
System Safety. The General Passenger Safety Task Force presented draft
guidance material for management of the gap that was considered and
approved by the Working Group during the December 11-12, 2007, meeting
and that was presented and approved by full RSAC vote during the
February 20, 2008, meeting. The group met April 23-24, 2008, and the
next meeting is currently scheduled for December 3-4, 2008. Contact:
Dan Knote,<PHONE_NUMBER>.
    Task 05-01--Review of Roadway Worker Protection Issues. This Task
was accepted on January 26, 2005, to review 49 CFR Part 214, Subpart C,
Roadway Worker Protection (RWP), and related sections of Subpart A and
to recommend consideration of specific actions to advance the on-track
safety of railroad employees and contractors engaged in maintenance-of-
way activities throughout the general system of railroad
transportation, including clarification of existing requirements. A
Working Group was established and reported to the RSAC any specific
actions identified as appropriate. The first meeting of the Working
Group was held on April 12-14, 2005. The group drafted and accepted
regulatory language for various revisions, clarifications, and
additions to 32 separate items in 19 sections of the rule. However, two
parties raised technical concerns regarding the draft language
concerning electronic display of track authorities. The Working Group
reported recommendations to the full Committee at the June 26, 2007,
meeting. FRA, through the NPRM process, is to address this issue along
with eight additional items on which the Working Group was unable to
reach a consensus. Comments were received and were considered during
the drafting of the NPRM. In early 2008, the external Working Group
members were solicited to review the consensus text for errata. In
order to address the heightened concerns raised with the current
regulations for adjacent-track on-track safety, an NPRM was published
on July 17, 2008, that focused on this element of the RWP rule alone.
As this was an NPRM, FRA sought comment on the entire proposal,
including those portions that FRA sought to clarify. However, on August
13, 2008, the NPRM was withdrawn to permit further consideration of the
RSAC-reported consensus language. FRA will address

discrepancies between the consensus language and the proposed rule,
clarify the essential issues, and publish a proposed rule on adjacent
track protection as soon as possible. A separate NPRM on other roadway
worker safety issues will follow in 2009. Contact: Christopher Schulte,
(610) 521-8201.
    Task 05-02--Reduce Human Factor-Caused Train Accident/Incidents.
This Task was accepted on May 18, 2005, to reduce the number of human
factor-caused train accidents/incidents and related employee injuries.
The Railroad Operating Rules Working Group was formed, and the Group
extensively reviewed the issues presented. The final Working Group
meeting devoted to developing a proposed rule was held February 8-9,
2006. The Working Group was not able to deliver a consensus regulatory
proposal, but did recommend that it be used to review comments on FRA's
NPRM, which was published in the Federal Register on October 12, 2006
(FR 71 60372), with public comments due by December 11, 2006. Two
reviews were held, one on February 8-9 and the other on April 4-5,
2007. Consensus was reached on four items and those items were
presented and accepted by the full RSAC Committee at the June 26, 2007,
meeting. A Final Rule was published in the Federal Register on February
13, 2008 (73 FR 8442), with an effective date of April 14, 2008. FRA
received four petitions for reconsideration of that final rule. The
final rule that responded to the petitions for consideration was
published in the Federal Register on June 16, 2008, and concluded the
rulemaking. Working Group meetings were held September 27-28, 2007;
January 17-18, 2008; May 21-22, 2008; and September 25-26, 2008. The
Working Group has considered issues related to issuance of Emergency
Order No. 26 (prohibition on use of certain electronic devices while on
duty) and ``after arrival mandatory directives,'' among other issues.
At the September meeting, the Working Group approved the creation of a
Highway Grade Crossings and Warning System Task Force. Contact: Douglas
Taylor,<PHONE_NUMBER>.
    Task 06-01--Locomotive Safety Standards. This Task was accepted on
February 22, 2006, to review 49 CFR Part 229, Railroad Locomotive
Safety Standards, and revise as appropriate. A Working Group was
established with the mandate to report any planned activity to the full
Committee at each scheduled full RSAC meeting, to include milestones
for completion of projects and progress toward completion. The first
Working Group meeting was held May 8-10, 2006. Working Group meetings
were held on August 8-9, 2006; September 25-26, 2006; October 30-31,
2006; and the Working Group presented recommendations regarding
revisions to requirements for locomotive sanders to the full RSAC on
September 21, 2006. The NPRM regarding sanders was published in the
Federal Register on March 6, 2007 (72 FR 9904). Comments received were
discussed by the Working Group for clarification, and FRA published a
final rule on October 19, 2007 (72 FR 59216). The Working Group is
continuing the review of Part 229 with work in the areas of locomotive
cab temperature standards, alerters, remote control locomotives, and
critical locomotive electronics with a view to proposing further
revisions to update the Standards. The Working Group met on January 9-
10, 2007; November 27-28, 2007; February 5-6, 2008; May 20-21, 2008;
August 5-6, 2008; and October 22-23, 2008. The next meeting is
scheduled for January 6-7, 2009. Contact: George Scerbo, (202) 493-
6249.
    Task 06-02--Track Safety Standards and Continuous Welded Rail.
Section 9005 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (Pub. L. No. 109-59,
``SAFETEA-LU''), the 2005 surface transportation authorization act,
requires FRA to issue requirements for inspection of joint bars in
continuous welded rail (CWR) in order to detect cracks that could
affect the integrity of the track structure. See Title 49 U.S.C.
20142(e). FRA published an Interim Final Rule (IFR) establishing new
requirements for inspections on November 2, 2005 (70 FR 66288). On
October 11, 2005, FRA offered the RSAC a task to review comments on
this IFR, but the conditions could not be established under which the
Committee could have undertaken this with a view toward consensus.
Comments on the IFR were received through December 19, 2005; FRA
reviewed the comments. On February 22, 2006, the RSAC accepted this
task to review and revise the CWR related to provisions of the Track
Safety Standards, with particular emphasis on reduction of derailments
and consequent injuries and damage caused by defective conditions,
including joint failures, in track using CWR. A Working Group was
established. The first Working Group meeting was held April 3-4, 2006,
at which time the Working Group reviewed comments on the IFR. The
second Working Group meeting was held April 26-28, 2006. The Working
Group also met on May 24-25, 2006, and July 19-20, 2006. The Working
Group reported consensus recommendations for the final rule that were
accepted by the full RSAC Committee by mail ballot on August 11, 2006.
The final rule was published in the Federal Register on October 11,
2006 (71 FR 59677). The Working Group continued review of 49 CFR
Section 213.119, with a view to proposing further revisions to update
the standards. The Working Group met on January 30-31, 2007; April 10-
11, 2007; June 27-28, 2007; August 15-16, 2007; October 23-24, 2007;
and January 8-9, 2008. The Working Group reported consensus
recommendations for revisions to Section 213.119 regulations to the
full RSAC Committee on February 20, 2008, and the recommendations were
accepted. FRA is preparing an NPRM with a target publication date of
December 2008. See Tasks 07-01 and 08-03 below. Contact: Ken Rusk,
(202) 493-6236.
    Task 06-03--Medical Standards for Safety-Critical Personnel. This
Task was accepted on September 21, 2006, to enhance the safety of
persons in the railroad operating environment and the public by
establishing standards and procedures for determining the medical
fitness for duty of personnel engaged in safety-critical functions. A
Working Group has been established and will report any planned activity
to the full Committee at each scheduled full RSAC meeting, including
milestones for completion of projects and progress toward completion.
The first Working Group meeting was held December 12-13, 2006. The
Working Group has held followup meetings on the following dates:
February 20-21, 2007; July 24-25, 2007; August 29-30, 2007; October 31-
November 1, 2007; December 4-5, 2007; February 13-14, 2008; March 26-
27, 2008; and April 22-23, 2008. At the latter meeting, FRA announced
that the agency would prepare an NPRM draft based on the discussions to
date and schedule a further meeting for review of the document. The
draft NPRM is currently in FRA coordination and the language is being
revised based on comments. The draft NPRM will be presented to the RSAC
Medical Standards Working Group when completed. A Doctors Task Force,
established by the Working Group in May 2007, is proceeding to develop
accompanying medical guidelines that will be used to provide consistent
criteria for determining the medical fitness for duty of the safety-
critical positions. These guidelines will be presented for Working
Group consideration when complete. When

accepted by the Medical Standards Working Group, the two parts of the
rulemaking will be presented to the full RSAC for approval. The target
date for publishing the NPRM is May 2009. The Doctors Task Force has
had meetings or conference calls on July 24, 2007; August 20, 2007;
October 15, 2007; October 31, 2007; June 23-24, 2008; September 8-10,
2008; October 8, 2008; and November 12-13, 2008. The next meeting of
the Task Force is tentatively scheduled for January 27-28, 2009.
Contact: Alan Misiaszek,<PHONE_NUMBER>.
    Task 07-01--Track Safety Standards. This Task was accepted on
February 22, 2007, to consider specific improvements to the Track
Safety Standards or other responsive actions supplementing work already
underway on CWR, specifically to: review controls applied to reuse of
rail in CWR ``plug rail,'' review the issue of cracks emanating from
bond wire attachments, consider improvements in the Track Safety
Standards related to fastening of rail to concrete ties, and to ensure
a common understanding within the regulated community concerning
requirements for internal rail flaw inspections. The tasks were
assigned to the Track Safety Standards Working Group. The Working Group
will report any planned activity to the full Committee at each
scheduled full RSAC meeting, including milestones for completion of
projects and progress toward completion. The first Working Group
meeting was held on June 27-28, 2007, and the group met again on August
15-16, 2007, and October 23-24, 2007. Two Task Forces were created
under the Working Group: Concrete Ties and Rail Integrity. The Concrete
Ties Task Force met on November 26-27, 2007; February 13-14, 2008;
April 16-17, 2008; July 9-10, 2008; and September 17-18, 2008. The
Concrete Ties Task Force finalized consensus language regarding
concrete crossties (49 CFR Part 213) and presented a recommendation to
the Track Safety Standards Working Group at the November 20, 2008,
Working Group meeting. The language may be presented for vote at the
December 10, 2008, RSAC meeting for approval. If approved by the RSAC,
the rule will go forward with a target publication date of April 2009.
Contact: Ken Rusk,<PHONE_NUMBER>.
    Task 08-01--Report on the Nation's Railroad Bridges. This Task was
accepted on February 20, 2008, to report to the Federal Railroad
Administrator on the current state of railroad bridge safety
management, update the findings and conclusions of the 1993 Summary
Report of the FRA Railroad Bridge Safety Survey, and to include
recommendations for further action, with a target date of November 3,
2008. The Working Group first met on April 24-25, 2008, with followup
meetings held on June 12-13, 2008, and August 7-8, 2008. The Working
Group presented and received approval on findings and a final report to
the RSAC during the September 10, 2008, full Committee meeting,
completing this task. Contact: Gordon Davids,<PHONE_NUMBER>.
    Task 08-03--Track Safety Standards Rail Integrity. This Task was
accepted on September 10, 2008, to consider specific improvements to
the Track Safety Standards or other responsive actions designed to
enhance rail integrity. The Rail Integrity Task Force was created in
October 2007 under Task 07-01 and first met on November 28-29, 2007.
The Task Force met on February 12-13, 2008; April 15-16, 2008; and July
8-9, 2008; and September 16-17, 2008. Consensus has been achieved on
bond wires and a common understanding on internal rail flaw inspections
has been reached; however, more work remains before a recommendation
for possible regulatory action is made. The next Rail Integrity Task
Force meeting is scheduled for February 3-4, 2009. Contact: Ken Rusk,
(202) 493-6236.

Completed Tasks

    Task 96-1--(Completed) Revising the Freight Power Brake
Regulations.
    Task 96-2--(Completed) Reviewing and recommending revisions to the
Track Safety Standards (49 CFR Part 213).
    Task 96-3--(Completed) Reviewing and recommending revisions to the
Radio Standards and Procedures (49 CFR Part 220).
    Task 96-5--(Completed) Reviewing and recommending revisions to
Steam Locomotive Inspection and Maintenance Standards (49 CFR Part
230).
    Task 96-6--(Completed) Reviewing and recommending revisions to
miscellaneous aspects of the regulations addressing Qualification and
Certification of Locomotive Engineers (49 CFR Part 240).
    Task 96-7--(Completed) Developing Roadway Maintenance Machines (On-
Track Equipment) Safety Standards.
    Task 96-8--(Completed) This Planning Task evaluated the need for
action responsive to recommendations contained in a report to Congress
titled, Locomotive Crashworthiness & Working Conditions.
    Task 97-1--(Completed) Developing crashworthiness specifications
(49 CFR Part 229) to promote the integrity of the locomotive cab in
accidents resulting from collisions.
    Task 97-2--(Completed) Evaluating the extent to which
environmental, sanitary, and other working conditions in locomotive
cabs affect the crew's health and the safe operation of locomotives,
proposing standards where appropriate.
    Task 97-3--(Completed) Developing event recorder data survivability
standards.
    Task 97-4 and Task 97-5--(Completed) Defining Positive Train
Control functionalities, describing available technologies, evaluating
costs and benefits of potential systems, and considering implementation
opportunities and challenges, including demonstration and deployment.
    Task 97-6--(Completed) Revising various regulations to address the
safety implications of processor-based signal and train control
technologies, including communications-based operating systems.
    Task 97-7--(Completed) Determining damages qualifying an event as a
reportable train accident.
    Task 00-1--(Completed--task withdrawn) Determining the need to
amend regulations protecting persons who work on, under, or between
rolling equipment and persons applying, removing, or inspecting rear
end marking devices (Blue Signal Protection).
    Task 01-1--(Completed) Developing conformity of FRA's regulations
for accident/incident reporting (49 CFR Part 225) to revised
regulations of the Occupational Safety and Health Administration, U.S.
Department of Labor, and to make appropriate revisions to the FRA Guide
for Preparing Accident/Incident Reports (Reporting Guide).
    Task 08-01--(Completed) Reporting on the Nation's Railroad Bridges.
    Please refer to the notice published in the Federal Register on
March 11, 1996 (61 FR 9740), for more information about the RSAC.

    Issued in Washington, DC, on November 24, 2008.
Grady C. Cothen, Jr.,
Deputy Associate Administrator for Safety Standards and Program
Development.
 [FR Doc. E8-28448 Filed 11-28-08; 8:45 am]

BILLING CODE 4910-06-P


[Federal Register Volume 83, Number 158 (Wednesday, August 15, 2018)]
[Notices]
[Pages 40595-40599]
[FR Doc No: 2018-17494]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-83813; File No. SR-MIAX-2018-20]

Self-Regulatory Organizations; Miami International Securities
Exchange LLC; Notice of Filing and Immediate Effectiveness of a
Proposed Rule Change To Amend Its Fee Schedule

August 9, 2018.
    Pursuant to the provisions of 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 July 31, 2018, Miami International Securities
Exchange LLC (``MIAX Options'' or ``Exchange'') filed with the
Securities and Exchange Commission (``Commission'') a proposed rule
change as described in Items I, II, and III below, which Items have
been prepared by the Exchange. The Commission is publishing this notice
to solicit comments on the proposed rule change from interested
persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 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 is filing a proposal to amend the MIAX Options Fee
Schedule (the ``Fee Schedule'') to delete a fee waiver relating to
certain market data feed products.
    The text of the proposed rule change is available on the Exchange's
website at http://www.miaxoptions.com/rule-filings, at MIAX's principal
office, 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 and
discussed any comments it received on 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
    The Exchange proposes to amend its Fee Schedule to delete a fee
waiver relating to certain market data feed products offered by the
Exchange--namely, the Exchange's Administrative Information Subscriber
(``AIS'') market data feed, and the Exchange's Top of Market (``ToM'')
market data feed.
    The ToM market data feed includes data that is identical to the
data sent to the processor for the Options Price Regulatory Authority
(``OPRA''). ToM provides real-time updates of the MIAX Best Bid or
Offer, or MBBO,\3\ price with aggregate orders and quote size of
contracts that can be displayed, display of Public Customer \4\
interest at the MBBO, display of Priority Customer \5\ interest at the
MBBO, and MIAX Options last sale.\6\ The Exchange launched ToM in early
2013,\7\ and

adopted monthly fees shortly thereafter.\8\ The Exchange assesses a
monthly fee of $1,250.00 for ToM Internal Distributors and a monthly
fee of $1,750.00 for ToM External Distributors.
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    \3\ The term ``MBBO'' means the best bid or offer on the
Exchange. See Exchange Rule 100. See also Exchange Rule 506(c)(2).
    \4\ The term ``Public Customer'' means a person that is not a
broker or dealer in securities. See Exchange Rule 100.
    \5\ The term ``Priority Customer'' means a person or entity that
(i) is not a broker or dealer in securities, and (ii) does not place
more than 390 orders in listed options per day on average during a
calendar month for its own beneficial account(s). See Exchange Rule
100.
    \6\ See Securities Exchange Act Release No. 69007 (February 28,
2013), 78 FR 14617 (March 6, 2013) (SR-MIAX-2013-05).
    \7\ See id.
    \8\ See Securities Exchange Act Release No. 69323 (April 5,
2013), 78 FR 21677 (April 11, 2013) (SR-MIAX-2013-14).
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    The Exchange began offering its AIS market data feed in April
2013.\9\ The AIS market data feed currently includes administrative
information for both simple and complex orders. The AIS market data
feed includes: Simple and complex liquidity seeking event
notifications, listed series updates, complex strategy definition
updates, system state, and underlying trading state information. The
Exchange assesses a monthly fee of $1,250.00 for all AIS Internal
Distributors and a monthly fee of $1,750.00 for all AIS External
Distributors. However, the monthly fee for Distributors of AIS is
presently waived if the Distributor also subscribes to ToM.\10\
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    \9\ See Securities Exchange Act Release No. 69320 (April 5,
2013), 78 FR 21661 (April 11, 2013) (SR-MIAX-2013-13).
    \10\ See Securities Exchange Act Release No. 73326 (October 9,
2014), 79 FR 62233 (October 16, 2014) (SR-MIAX-2014-51).
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    Accordingly, under the present operation of the Fee Schedule, a
subscriber who only subscribes to AIS will be charged the AIS monthly
fee ($1,250.00 for Internal Distributors and $1,750.00 for External
Distributors). A subscriber who only subscribes to ToM will be charged
the ToM monthly fee ($1,250.00 for Internal Distributors and $1,750.00
for External Distributors). A subscriber who subscribes to both ToM and
AIS will be charged only the ToM monthly fee ($1,250.00 for Internal
Distributors and $1,750.00 for External Distributors).
    The Exchange now proposes to delete the fee waiver which entitles a
subscriber of both ToM and AIS to receive a fee waiver for AIS.
Accordingly, pursuant to this proposal, a subscriber to both ToM and
AIS would now be assessed a separate fee for each of the data feeds. A
subscriber who is an Internal Distributor will now pay $2,500.00 in the
aggregate, if subscribing to both feeds, and a subscriber who is an
External Distributor will now pay $3,500.00 in the aggregate, if
subscribing to both feeds.
    The Exchange is not proposing to modify any other aspect of either
the AIS market data feed product or the ToM market data feed product.
The Exchange is solely deleting the fee waiver which presently entitles
a subscriber of ToM to also receive a subscription to AIS for free.
    The proposed rule change is scheduled to become operative on August
1, 2018.
2. Statutory Basis
    The Exchange believes that its proposal to amend its Fee Schedule
is consistent with Section 6(b) \11\ of the Act in general, and
furthers the objectives of Section 6(b)(4) \12\ of the Act, in that it
is designed to provide for an equitable allocation of reasonable dues,
fees and other charges among Exchange Members \13\ and other persons
using its facilities, because it applies equally to all Members and any
persons using the facilities or services of the Exchange. The Exchange
also believes that the proposal furthers the objectives of Section
6(b)(5) \14\ of the Act in particular, in that it is designed to
prevent fraudulent and manipulative acts and practices, to promote just
and equitable principles of trade, to foster cooperation and
coordination with persons engaged in facilitating transactions in
securities, to remove impediments to and perfect the mechanisms of a
free and open market and a national market system and, in general, to
protect investors and the public interest, and it is not designed to
permit unfair discrimination among customers, brokers, or dealers.
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    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(4).
    \13\ The term ``Member'' means an individual or organization
approved to exercise the trading rights associated with a Trading
Permit. Members are deemed ``members'' under the Exchange Act. See
Exchange Rule 100.
    \14\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the proposed amendment to delete a fee
waiver relating to certain market data feed products offered by the
Exchange--namely, the Exchange's AIS market data feed, and the
Exchange's ToM market data feed--is reasonable, equitable, and not
unfairly discriminatory. The Exchange has offered an AIS fee waiver to
ToM subscribers since the inception of AIS.\15\ The Exchange determined
to establish and continue the AIS fee waiver for business and
competitive reasons, in order to encourage ToM subscribers to subscribe
to the AIS feed. The Exchange now believes that it is appropriate to
delete the fee waiver, based on a business determination of the number
of ToM feed and AIS feed subscribers, with the fee waiver having
achieved the intended result.
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    \15\ See supra note 10.
---------------------------------------------------------------------------

    The Exchange anticipates the changes will result in a reasonable
allocation of its costs and expenses among its Members and other
persons using its facilities because the proposed fees would enable the
Exchange to recover the costs associated with providing such
infrastructure, and with offering access through the network
connections and access and services, responding to customer requests,
configuring MIAX Options systems, and administering the various
services connectivity services. The Exchange believes the proposed fees
are equitable and not unfairly discriminatory because the new fee
levels result in a more reasonable and equitable allocation of fees
amongst non-Members and Members for similar services. Access to the
Exchange is provided on fair and non-discriminatory terms. Moreover,
the decision as to whether or not to subscribe to AIS is entirely
optional to all parties. Potential subscribers are not required to
purchase the AIS market data feed. Subscribers can discontinue their
use at any time and for any reason, including due to their assessment
of the reasonableness of fees charged. The allocation of fees among
subscribers is fair and reasonable because, if the market deems the
proposed fees to be unfair or inequitable, firms can diminish or
discontinue their use of this data.
    In adopting Regulation NMS, the Commission granted self-regulatory
organizations and broker-dealers increased authority and flexibility to
offer new and unique market data to the public. It was believed that
this authority would expand the amount of data available to consumers,
and also spur innovation and competition for the provision of market
data:

    [E]fficiency is promoted when broker-dealers who do not need the
data beyond the prices, sizes, market center identifications of the
NBBO and consolidated last sale information are not required to
receive (and pay for) such data when broker-dealers may choose to
receive (and pay for) additional market data based on their own
internal analysis of the need for such data.\16\
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    \16\ Securities Exchange Act Release No. 51808 (June 9, 2005),
70 FR 37496 (June 29, 2005).

    By removing ``unnecessary regulatory restrictions'' on the ability
of exchanges to sell their own data, Regulation NMS advanced the goals
of the Act and the principles reflected in its legislative history. If
the free market should determine whether proprietary data is sold to
broker-dealers at all, it follows that the price at which such data is
sold should be set by the market as well.
    In July, 2010, Congress adopted H.R. 4173, the Dodd-Frank Wall
Street Reform and Consumer Protection Act of 2010 (``Dodd-Frank Act''),
which amended Section 19 of the Act. Among

other things, Section 916 of the Dodd-Frank Act amended paragraph (A)
of Section 19(b)(3) of the Act by inserting the phrase ``on any person,
whether or not the person is a member of the self-regulatory
organization'' after ``due, fee or other charge imposed by the self-
regulatory organization.'' As a result, all SRO rule proposals
establishing or changing dues, fees or other charges are immediately
effective upon filing regardless of whether such dues, fees or other
charges are imposed on members of the SRO, non-members, or both.
Section 916 further amended paragraph (C) of Section 19(b)(3) of the
Act to read, in pertinent part, ``At any time within the 60-day period
beginning on the date of filing of such a proposed rule change in
accordance with the provisions of paragraph (1) [of Section 19(b)], the
Commission summarily may temporarily suspend the change in the rules of
the self-regulatory organization made thereby, 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 this title. If the Commission takes such action, the
Commission shall institute proceedings under paragraph (2)(B) [of
Section 19(b)] to determine whether the proposed rule should be
approved or disapproved.''
    The Exchange believes that these amendments to Section 19 of the
Act reflect Congress's intent to allow the Commission to rely upon the
forces of competition to ensure that fees for market data are
reasonable and equitably allocated. Although Section 19(b) had formerly
authorized immediate effectiveness for a ``due, fee or other charge
imposed by the self-regulatory organization,'' the Commission adopted a
policy and subsequently a rule stating that fees for data and other
products available to persons that are not members of the self-
regulatory organization must be approved by the Commission after first
being published for comment. At the time, the Commission supported the
adoption of the policy and the rule by pointing out that unlike
members, whose representation in self-regulatory organization
governance was mandated by the Act, non-members should be given the
opportunity to comment on fees before being required to pay them, and
that the Commission should specifically approve all such fees. The
Exchange believes that the amendment to Section 19 reflects Congress's
conclusion that the evolution of self-regulatory organization
governance and competitive market structure have rendered the
Commission's prior policy on non-member fees obsolete. Specifically,
many exchanges have evolved from member-owned, not-for-profit
corporations into for-profit, investor-owned corporations (or
subsidiaries of investor-owned corporations). Accordingly, exchanges no
longer have narrow incentives to manage their affairs for the exclusive
benefit of their members, but rather have incentives to maximize the
appeal of their products to all customers, whether members or non-
members, so as to broaden distribution and grow revenues. Moreover, the
Exchange believes that the change also reflects an endorsement of the
Commission's determinations that reliance on competitive markets is an
appropriate means to ensure equitable and reasonable prices. Simply
put, the change reflects a presumption that all fee changes should be
permitted to take effect immediately, since the level of all fees are
constrained by competitive forces. The Exchange therefore believes that
the fees for AIS are properly assessed on Internal and External
Distributors.
    The decision of the United States Court of Appeals for the District
of Columbia Circuit in NetCoaliton v. SEC, No. 09-1042 (D.C. Cir.
2010), although reviewing a Commission decision made prior to the
effective date of the Dodd-Frank Act, upheld the Commission's reliance
upon competitive markets to set reasonable and equitably allocated fees
for 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.' '' \17\
---------------------------------------------------------------------------

    \17\ NetCoaltion, at 15 (quoting H.R. Rep. No. 94-229, at 92
(1975), as reprinted in 1975 U.S.C.C.A.N. 321, 323).

    The court's conclusions about Congressional intent are therefore
reinforced by the Dodd-Frank Act amendments, which create a presumption
that exchange fees, including market data fees, may take effect
immediately, without prior Commission approval, and that the Commission
should take action to suspend a fee change and institute a proceeding
to determine whether the fee change should be approved or disapproved
only where the Commission has concerns that the change may not be
consistent with the Act.

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

    The Exchange does not believe that the proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act. Notwithstanding
its determination that the Commission may rely upon competition to
establish fair and equitably allocated fees for market data, the
NetCoalition Court found that the Commission had not, in that case,
compiled a record that adequately supported its conclusion that the
market for the data at issue in the case was competitive. The Exchange
believes that a record may readily be established to demonstrate the
competitive nature of the market in question.
    The market for data products is extremely competitive and users may
freely choose alternative venues and data vendors based on the
aggregate fees assessed, the data offered, and the value provided.
Numerous exchanges compete with each other for listings, trades, and
market data itself, providing virtually limitless opportunities for
entrepreneurs who wish to produce and distribute their own market data.
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, market data and trade execution are a paradigmatic
example of joint products with joint costs. The decision whether and on
which platform to post an order will depend on the attributes of the
platform where the order can be posted, including the execution fees,
data quality and price, and distribution of its data products. Without
trade executions, exchange data products cannot exist. Moreover, data
products are valuable to many end users only insofar as they provide
information that end users expect will assist them or their customers
in making trading decisions.
    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 transaction execution
platform 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, the operation of the
Exchange is characterized by high fixed costs and low marginal costs.
This cost structure

is common in content distribution industries such as software, where
developing new software typically requires a large initial investment
(and continuing large investments to upgrade software), but once the
software is developed, the incremental cost of providing that software
to an additional user is typically small, or even zero (e.g., if the
software can be downloaded over the internet after being
purchased).\18\ In the case of any exchange, it is costly to build and
maintain a trading platform, but the incremental cost of trading each
additional share on an existing platform, or distributing an additional
instance of data, is very low. Market information and executions are
each produced jointly (in the sense that the activities of trading and
placing orders are the source of the information that is distributed)
and are each subject to significant scale economies.
---------------------------------------------------------------------------

    \18\ See William J. Baumol and Daniel G. Swanson, ``The New
Economy and Ubiquitous Competitive Price Discrimination: Identifying
Defensible Criteria of Market Power,'' Antitrust Law Journal, Vol.
70, No. 3 (2003).
---------------------------------------------------------------------------

    Competition among trading platforms can be expected to constrain
the aggregate return each platform earns from the sale of its joint
products. The level of competition and contestability in the market is
evidence in the numerous alternative venues that compete for order
flow, including SRO markets, as well as internalizing BDs and various
forms of alternative trading systems (``ATSs''), including dark pools
and electronic communication networks (``ECNs''). Each SRO market
competes to produce transaction reports via trade executions. It is
common for BDs to further and exploit this competition by sending their
order flow and transaction reports to multiple markets, rather than
providing them all to a single market. Competitive markets for order
flow, executions, and transaction reports provide pricing discipline
for the inputs of proprietary data products. The large number of SROs,
TRFs, BDs, and ATSs that currently produce proprietary data or are
currently capable of producing it provides further pricing discipline
for proprietary data products. Each SRO, TRF, ATS, and BD is currently
permitted to produce proprietary data products, and many currently do
or have announced plans to do so, including the Nasdaq exchanges, NYSE
exchanges, and CBOE/Bats exchanges.
    In this competitive environment, an ``excessive'' price for one
product will have to be reflected in lower prices for other products
sold by the Exchange, or otherwise the Exchange may experience a loss
in sales that may adversely affect its profitability. In this case, the
proposed rule change enhances competition by providing Historical
Market Data at a fixed price. As such, the Exchange believes that the
proposed changes will enhance, not impair, competition in the financial
markets.
    The market for market data products is competitive and inherently
contestable because there is fierce competition for the inputs
necessary to the creation of proprietary data and strict pricing
discipline for the proprietary products themselves. Numerous exchanges
compete with each other for listings, trades, and market data itself,
providing virtually limitless opportunities for entrepreneurs who wish
to produce and distribute their own market data. This proprietary data
is produced by each individual exchange, as well as other entities, in
a vigorously competitive market. Broker-dealers currently have numerous
alternative venues for their order flow, including eleven existing
options markets. Each SRO market competes to produce transaction
reports via trade executions. Competitive markets for order flow,
executions, and transaction reports provide pricing discipline for the
inputs of proprietary data products. The large number of SROs that
currently produce proprietary data or are currently capable of
producing it provides further pricing discipline for proprietary data
products. Each SRO is currently permitted to produce proprietary data
products, and many in addition to MIAX Options currently do, including
Nasdaq, CBOE, Nasdaq ISE, NYSE American, and NYSE Arca. Additionally,
order routers and market data vendors can facilitate single or multiple
broker-dealers' production of proprietary data products. The potential
sources of proprietary products are virtually limitless.
    Market data vendors provide another form of price discipline for
proprietary data products because they control the primary means of
access to end subscribers. Vendors impose price restraints based upon
their business models. For example, vendors such as Bloomberg and
Thomson Reuters that assess a surcharge on data they sell may refuse to
offer proprietary products that end subscribers will not purchase in
sufficient numbers. Internet portals, such as Google, impose a
discipline by providing only data that will enable them to attract
``eyeballs'' that contribute to their advertising revenue. Retail
broker-dealers, such as Schwab and Fidelity, offer their customers
proprietary data only if it promotes trading and generates sufficient
commission revenue. Although the business models may differ, these
vendors' pricing discipline is the same: they can simply refuse to
purchase any proprietary data product that fails to provide sufficient
value. The Exchange and other producers of proprietary data products
must understand and respond to these varying business models and
pricing disciplines in order to market proprietary data products
successfully.
    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, inexpensive, and profitable.
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, BATS Trading and Direct
Edge. Regulation NMS, by deregulating the market for proprietary data,
has increased the contestability of that market. While broker-dealers
have previously published their proprietary data individually,
Regulation NMS encourages market data vendors and broker-dealers to
produce proprietary products cooperatively in a manner never before
possible. Multiple market data vendors already have the capability to
aggregate data and disseminate it on a profitable scale, including
Bloomberg, and Thomson Reuters.
    The Court in NetCoalition concluded that the Commission had failed
to demonstrate that the market for market data was competitive based on
the reasoning of the Commission's NetCoalition order because, in the
Court's view, the Commission had not adequately demonstrated that the
proprietary data at issue in the case is used to attract order flow.
The Exchange believes, however, that evidence not then before the court
clearly demonstrates that availability of data attracts order flow. Due
to competition among platforms, the Exchange intends to improve its
platform data offerings on a continuing basis, and to respond promptly
to customers' data needs.
    The intensity of competition for proprietary information is
significant and the Exchange believes that this proposal itself clearly
evidences such competition. The Exchange has offered an AIS fee waiver
to ToM subscribers since the inception of AIS. The Exchange now
believes that it is appropriate to delete the fee waiver, based on a
business determination of the number of ToM feed and AIS feed
subscribers. It is entirely optional and is geared towards attracting
new Member Applicants and customers. MIAX Options competitors continue
to create new market data products and

innovative pricing in this space. The Exchange expects firms to make
decisions on how much and what types of data to consume on the basis of
the total cost of interacting with MIAX Options or other exchanges. Of
course, the explicit data fees are only one factor in a total platform
analysis. Some competitors have lower transactions fees and higher data
fees, and others are vice versa. The market for this proprietary
information is highly competitive and continually evolves as products
develop and change. Additionally, respecting intra-market competition,
the AIS feed and the ToM feed are available to all subscribers, thus
providing all subscribers to the data products with an even playing
field with respect to information and access to trade on MIAX Options.

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

    Written comments were neither solicited nor 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,\19\ and Rule 19b-4(f)(2) \20\ thereunder.
At any time within 60 days of the filing of the proposed rule change,
the Commission summarily may temporarily suspend such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act. If the Commission takes such
action, the Commission shall institute proceedings to determine whether
the proposed rule should be approved or disapproved.
---------------------------------------------------------------------------

    \19\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \20\ 17 CFR 240.19b-4(f)(2).
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IV. Solicitation of Comments

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

Electronic Comments

     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-MIAX-2018-20 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-MIAX-2018-20. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (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 website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 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-MIAX-2018-20, and should be submitted on
or before September 5, 2018.
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    \21\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\21\
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-17494 Filed 8-14-18; 8:45 am]
 BILLING CODE 8011-01-P