[Federal Register Volume 77, Number 69 (Tuesday, April 10, 2012)]
[Rules and Regulations]
[Pages 21485-21491]
[FR Doc No: 2012-8612]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 67

[Docket ID FEMA-2012-0003]

Final Flood Elevation Determinations

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Final rule.

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SUMMARY: Base (1% annual-chance) Flood Elevations (BFEs) and modified
BFEs are made final for the communities listed below. The BFEs and
modified BFEs are the basis for the floodplain management measures that
each community is required either to adopt or to show evidence of being
already in effect in order to qualify or remain qualified for
participation in the National Flood Insurance Program (NFIP).

DATES: Effective date: The date of issuance of the Flood Insurance Rate
Map (FIRM) showing BFEs and modified BFEs for each community. This date
may be obtained by contacting the office where the maps are available
for inspection as indicated in the table below.

ADDRESSES: The final BFEs for each community are available for
inspection at the office of the Chief Executive Officer of each
community. The respective addresses are listed in the table below.

FOR FURTHER INFORMATION CONTACT: Luis Rodriguez, Chief, Engineering
Management Branch, Federal Insurance and Mitigation Administration,
Federal Emergency Management Agency, 500 C Street SW., Washington, DC
20472,<PHONE_NUMBER>, or (email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA) makes the final determinations listed below for the modified
BFEs for each community listed. These modified elevations have been
published in newspapers of local circulation and ninety (90) days have
elapsed since that publication. The Deputy Associate Administrator for
Mitigation has resolved any appeals resulting from this notification.
    This final rule is issued in accordance with section 110 of the
Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part
67. FEMA has developed criteria for floodplain management in floodprone
areas in accordance with 44 CFR part 60.
    Interested lessees and owners of real property are encouraged to
review the proof Flood Insurance Study and FIRM available at the
address cited below for each community. The BFEs and modified BFEs are
made final in the communities listed below. Elevations at selected
locations in each community are shown.
    National Environmental Policy Act. This final rule is categorically
excluded from the requirements of 44 CFR part 10, Environmental
Consideration. An environmental impact assessment has not been
prepared.
    Regulatory Flexibility Act. As flood elevation determinations are
not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-
612, a regulatory flexibility analysis is not required.
    Regulatory Classification. This final rule is not a significant
regulatory action under the criteria of section 3(f) of Executive Order
12866 of September 30, 1993, Regulatory Planning and Review, 58 FR
51735.
    Executive Order 13132, Federalism. This final rule involves no
policies that have federalism implications under Executive Order 13132.
    Executive Order 12988, Civil Justice Reform. This final rule meets
the applicable standards of Executive Order 12988.

List of Subjects in 44 CFR Part 67

    Administrative practice and procedure, Flood insurance, Reporting
and recordkeeping requirements.

    Accordingly, 44 CFR part 67 is amended as follows:

PART 67--[AMENDED]

0
1. The authority citation for part 67 continues to read as follows:

    Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.

Sec.  67.11  [Amended]

0
2. The tables published under the authority of Sec.  67.11 are amended
as follows:

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                                                                                * Elevation in
                                                                                feet  (NGVD)  +
                                                                                Elevation in feet
                                                                                (NAVD)   Depth in feet
            State              City/town/county         Source of flooding                              Location                          above ground
                                                                                [caret] Elevation
                                                                                in meters (MSL)
                                                                                Modified

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              City of Mandeville, Louisiana
                                                                 Docket No.: FEMA-B-7799
--------------------------------------------------------------------------------------------------------------------------------------------------------
Louisiana....................  City of           Bayou Chinchuba.................  At the Parc du Lac confluence.....................                +12
                                Mandeville.
                                                                                Approximately 700 feet upstream of the Parc du Lac                +12
                                                                                confluence.
Louisiana....................  City of           Lake Pontchartrain..............  Entire shoreline within community.................             +10-15
                                Mandeville.
Louisiana....................  City of           Parc du Lac.....................  At the Bayou Chinchuba confluence.................                +12
                                Mandeville.
                                                                                Approximately 2,775 feet upstream of the Bayou                    +12
                                                                                Chinchuba confluence.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* National Geodetic Vertical Datum.
+ North American Vertical Datum.
 Depth in feet above ground.
[caret] Mean Sea Level, rounded to the nearest 0.1 meter.

                                                                        ADDRESSES

City of Mandeville
Maps are available for inspection at 3101 East Causeway Approach, Mandeville, LA 70448.
--------------------------------------------------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
                                                                      * Elevation in
                                                                      feet (NGVD) +
                                                                    Elevation in feet
                                                                     (NAVD)
           Flooding source(s)              Location of referenced     Depth in feet       Communities affected
                                                 elevation             above ground
                                                                    [caret] Elevation
                                                                     in meters (MSL)
                                                                         Modified
----------------------------------------------------------------------------------------------------------------
                              Santa Cruz County, California, and Incorporated Areas
                                             Docket No.: FEMA-B-1178
----------------------------------------------------------------------------------------------------------------
Salsipuedes Creek......................  Approximately 0.7 mile                  + 45  City of Watsonville,
                                          upstream of State Route                       Unincorporated Areas of
                                          129.                                          Santa Cruz County.
                                         Approximately 1.5 miles                 + 58
                                          upstream of State Route
                                          129.
Struve Slough..........................  At the upstream side of                 + 17  City of Watsonville.
                                          Harkins Slough Road.
                                         Approximately 0.4 mile                  + 58
                                          upstream of Pennsylvania
                                          Drive.
Watsonville Slough.....................  Approximately 1,460 feet                + 26  City of Watsonville.
                                          downstream of Harkins
                                          Slough Road.
                                         Approximately 1,430 feet                + 59
                                          upstream of Marin Street.
----------------------------------------------------------------------------------------------------------------
* National Geodetic Vertical Datum.
+ North American Vertical Datum.
 Depth in feet above ground.
[caret] Mean Sea Level, rounded to the nearest 0.1 meter.

                                                    ADDRESSES

City of Watsonville
Maps are available for inspection at the Community Development Department, 250 Main Street, Watsonville, CA
 95076.

                                    Unincorporated Areas of Santa Cruz County
Maps are available for inspection at the Santa Cruz County Planning Department, 701 Ocean Street, 4th Floor,
 Santa Cruz, CA 95060.
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                                 Yolo County, California, and Incorporated Areas
                                             Docket No.: FEMA-B-1175
----------------------------------------------------------------------------------------------------------------
Cache Creek............................  Approximately 3,200 feet                + 54  Unincorporated Areas of
                                          downstream of County                          Yolo County.
                                          Road 102.
                                         Approximately 1.4 miles                 + 94
                                          downstream of County
                                          Road 94B.
Cache Creek Left Bank Overflow.........  Approximately 1.9 miles                 + 40  Unincorporated Areas of
                                          east of the intersection                      Yolo County.
                                          of County Road 103 and
                                          County Road 20.
                                         Approximately 3,200 feet                + 54
                                          downstream of County
                                          Road 120.
Cache Creek Right Bank Overflow........  Approximately 1.1 miles                 + 37  City of Woodland,
                                          east of the intersection                      Unincorporated Areas of
                                          of County Road 24 and                         Yolo County.
                                          County Road 102.
                                         Approximately 1,500 feet                + 93
                                          north of the
                                          intersection of County
                                          Road 96B and County Road
                                          19B.
----------------------------------------------------------------------------------------------------------------
* National Geodetic Vertical Datum.
+ North American Vertical Datum.
 Depth in feet above ground.
[caret] Mean Sea Level, rounded to the nearest 0.1 meter.

                                                    ADDRESSES

City of Woodland
Maps are available for inspection at the Community Development Department, 520 Court Street, Woodland, CA 95695.

                                       Unincorporated Areas of Yolo County
Maps are available for inspection at the Yolo County Department of Planning and Public Works, 292 West Beamer
 Street, Woodland, CA 95695.
----------------------------------------------------------------------------------------------------------------

                                 Collier County, Florida, and Incorporated Areas
                                             Docket No.: FEMA-B-1151
----------------------------------------------------------------------------------------------------------------
Gulf of Mexico.........................  At Monroe County.........                + 6  City of Everglades City,
                                                                                City of Marco Island,
                                                                                City of Naples,
                                                                                Unincorporated Areas of
                                                                                Collier County.
                                         At Lee County............               + 16
Shallow Flooding.......................  An area bounded by the                + 9-14  Unincorporated Areas of
                                          Lee County boundary to                        Collier County.
                                          the north, Immokalee
                                          Road to the south,
                                          Little Hickory Bay to
                                          the west, and I-75 to
                                          the east.
Shallow Flooding.......................  An area bounded by I-75                 + 12  Unincorporated Areas of
                                          to the north, 112th                           Collier County.
                                          Street to the south,
                                          Collier Road to the
                                          west, and Patterson Road
                                          to the east.
Shallow Flooding.......................  An area bounded by the               + 16-39  Seminole Tribe of
                                          Lee County boundary to                        Florida, Unincorporated
                                          the north, County Road                        Areas of Collier County.
                                          858 to the south,
                                          Everglades Road to the
                                          west, and County Road
                                          858 to the east.
Shallow Flooding.......................  An area bounded by County            + 11-21  Unincorporated Areas of
                                          Road 858 to the north, I-                     Collier County.
                                          75 to the south,
                                          Everglades Road to the
                                          west, and State Route 29
                                          to the east.
Shallow Flooding.......................  An area bounded by                    + 9-13  Unincorporated Areas of
                                          Bluebill/Immokalee Road                       Collier County.
                                          to the north, Vanderbilt
                                          Beach Road to the south,
                                          Vanderbilt Road to the
                                          west, and I-75 to the
                                          east.
Shallow Flooding.......................  An area bounded by                    + 9-18  Unincorporated Areas of
                                          Vanderbilt Beach Road to                      Collier County.
                                          the north, Pine Ridge
                                          Road to the south,
                                          Tamiami Trail to the
                                          west, and I-75 to the
                                          east.
Shallow Flooding.......................  An area bounded by Pine               + 8-18  City of Naples,
                                          Ridge Road to the north,                      Unincorporated Areas of
                                          Radio Road to the south,                      Collier County.
                                          Tamiami Trail to the
                                          east, and I-75 and
                                          Collier Road to the west.
Shallow Flooding.......................  An area bounded by Radio              + 8-12  Unincorporated Areas of
                                          Road to the north,                            Collier County.
                                          Tamiami Trail to the
                                          south, Tamiami Trail to
                                          the west, and Collier
                                          Road to the east.
Shallow Flooding.......................  An area bounded by the               + 10-14  Unincorporated Areas of
                                          Lee County boundary to                        Collier County.
                                          the north, Immokalee
                                          Road to the south, I-75
                                          to the east, and Quarry
                                          Road to the west.
Shallow Flooding.......................  An area bounded by                   + 10-15  Unincorporated Areas of
                                          Immokalee Road to the                         Collier County.
                                          north, I-75 to the
                                          south, I-75 to the east,
                                          and Collier Road to the
                                          west.
Shallow Flooding.......................  An area bounded by the               + 12-30  Unincorporated Areas of
                                          Lee County boundary to                        Collier County.
                                          the north, Immokalee
                                          Road and Randall Road to
                                          the south, Quarry Road
                                          and the Lee County
                                          boundary to the west,
                                          and Everglades Road to
                                          the east.
Shallow Flooding.......................  An area bounded by                   + 11-15  Unincorporated Areas of
                                          Immokalee Road and                            Collier County.
                                          Randall Road to the
                                          north, Blackburn Road to
                                          the south, I-75 to the
                                          west, and Everglades
                                          Road to the east.
----------------------------------------------------------------------------------------------------------------
* National Geodetic Vertical Datum.
+ North American Vertical Datum.
 Depth in feet above ground.
[caret] Mean Sea Level, rounded to the nearest 0.1 meter.

                                                    ADDRESSES

City of Everglades City
Maps are available for inspection at 102 Broadway Avenue, Everglades City, FL 34139.

City of Marco Island
Maps are available for inspection at 50 Bald Eagle Drive, Marco Island, FL 34145.

City of Naples
Maps are available for inspection at 735 8th Street South, Naples, FL 34102.

Seminole Tribe of Florida
Maps are available for inspection at 6300 Stirling Road, Hollywood, FL 33024.

                                     Unincorporated Areas of Collier County
Maps are available for inspection at 3301 East Tamiami Trail, Building F, 1st Floor, Naples, FL 34112.
----------------------------------------------------------------------------------------------------------------

                               Vermilion County, Illinois, and Incorporated Areas
                                             Docket No.: FEMA-B-1140
----------------------------------------------------------------------------------------------------------------
East Branch Lick Creek.................  Approximately 650 feet                 + 613  City of Danville,
                                          upstream of U.S. Route                        Unincorporated Areas of
                                          136.                                          Vermilion County.
                                         Approximately 350 feet                 + 644
                                          downstream of Lynch Road.
North Fork Vermilion River.............  Approximately 940 feet                 + 543  Unincorporated Areas of
                                          downstream of Williams                        Vermilion County.
                                          Street/Hungry Hollow
                                          Road.
                                         Approximately 0.75 mile                + 549
                                          upstream of the water
                                          treatment plant dam.
Stoney Creek...........................  Just upstream of Winter                + 612  Unincorporated Areas of
                                          Avenue.                                       Vermilion County.
                                         Approximately 0.5 mile                 + 615
                                          upstream of Winter
                                          Avenue.
Vermilion River........................  Approximately 0.75 mile                + 533  Unincorporated Areas of
                                          downstream of I-74.                           Vermilion County.
                                         Approximately 0.85 mile                + 542
                                          upstream of the railroad
                                          crossing upstream of the
                                          confluence of the North
                                          Fork Vermilion River and
                                          parallel to H Avenue.
----------------------------------------------------------------------------------------------------------------
* National Geodetic Vertical Datum.
+ North American Vertical Datum.
 Depth in feet above ground.
[caret] Mean Sea Level, rounded to the nearest 0.1 meter.

                                                    ADDRESSES

City of Danville
Maps are available for inspection at City Hall, 17 West Main Street, Danville, IL 61832.

                                    Unincorporated Areas of Vermilion County
Maps are available for inspection at the Vermilion County Courthouse, 6 North Vermilion Street, Danville, IL
 61832.
----------------------------------------------------------------------------------------------------------------
                                Cerro Gordo County, Iowa, and Incorporated Areas
                                             Docket No.: FEMA-B-1138
----------------------------------------------------------------------------------------------------------------
Chelsea Creek..........................  At the confluence with                + 1118  City of Mason City.
                                          Willow Creek.
                                         Just downstream of                    + 1134
                                          Chicago, Milwaukee, St.
                                          Paul and Pacific
                                          Railroad.
Clear Creek............................  At the confluence with                + 1180  City of Clear Lake.
                                          Willow Creek.
                                         Just downstream of 40th               + 1192
                                          Street.
Clear Lake.............................  Entire shoreline.........             + 1228  City of Clear Lake, City
                                                                                of Ventura,
                                                                                Unincorporated Areas of
                                                                                Cerro Gordo County.
Willow Creek...........................  Just upstream of State                + 1158  City of Clear Lake, City
                                          Road 122.                                     of Mason City,
                                                                                Unincorporated Areas of
                                                                                Cerro Gordo County.
                                         Approximately 850 feet                + 1195
                                          upstream of I-35.
Winnebago River........................  Approximately 0.4 mile                + 1061  City of Mason City,
                                          upstream of Chicago,                          Unincorporated Areas of
                                          Milwaukee, St. Paul and                       Cerro Gordo County.
                                          Pacific Railroad.
                                         Approximately 1.6 miles               + 1092
                                          upstream of 13th Street.
----------------------------------------------------------------------------------------------------------------
* National Geodetic Vertical Datum.
+ North American Vertical Datum.
 Depth in feet above ground.
[caret] Mean Sea Level, rounded to the nearest 0.1 meter.

                                                    ADDRESSES

City of Clear Lake
Maps are available for inspection at 15 North 6th Street, Clear Lake, IA 50428.

City of Mason City
Maps are available for inspection at 10 1st Street Northwest, Mason City, IA 50401.

City of Ventura
Maps are available for inspection at 101 Sena Street, Ventura, IA 50482.

                                   Unincorporated Areas of Cerro Gordo County
Maps are available for inspection at 220 North Washington Avenue, Mason City, IA 50401.
----------------------------------------------------------------------------------------------------------------
                                Chariton County, Missouri, and Incorporated Areas
                                             Docket No.: FEMA-B-1175
----------------------------------------------------------------------------------------------------------------
Batts Creek (backwater effects from      From the Doxies Creek                  + 631  Unincorporated Areas of
 Missouri River).                         confluence to                                 Chariton County.
                                          approximately 550 feet
                                          upstream of Batts Creek
                                          Road.
Brush Creek (backwater effects from      From the Salt Creek                    + 648  Unincorporated Areas of
 Missouri River).                         confluence to                                 Chariton County.
                                          approximately 675 feet
                                          downstream of Utz Road.
Chariton River (backwater effects from   From approximately 1.3                 + 637  Unincorporated Areas of
 Missouri River).                         miles upstream of State                       Chariton County.
                                          Highway VV to
                                          approximately 225 feet
                                          downstream of U.S. Route
                                          24.
Doxies Creek (backwater effects from     From approximately 300                 + 631  Unincorporated Areas of
 Missouri River).                         feet downstream of Doxie                      Chariton County.
                                          Avenue to the Howard
                                          County boundary.
Grand River (backwater effects from      At the Missouri River                  + 645  City of Brunswick,
 Missouri River).                         confluence.                                   Unincorporated Areas of
                                                                                Chariton County.
                                         At the downstream side of              + 651
                                          ATSF Railroad Bridge.
Grand River Tributary (backwater         From approximately 1,450               + 649  Unincorporated Areas of
 effects from Missouri River).            feet downstream of Grand                      Chariton County.
                                          River Road to
                                          approximately 150 feet
                                          upstream of Grand River
                                          Road.
Little Chariton River (backwater         From approximately 0.65                + 632  Unincorporated Areas of
 effects from Missouri River).            mile downstream of                            Chariton County.
                                          French Road to the
                                          downstream side of
                                          Chapel Hill Road.
Missouri River.........................  At the Howard County                   + 626  City of Brunswick,
                                          boundary.                                     Unincorporated Areas of
                                                                                Chariton County, Village
                                                                                of Dalton.
                                         At the Carroll County                  + 645
                                          boundary.
Mussel Fork (backwater effects from      From the Chariton River                + 637  City of Keytesville,
 Missouri River).                         confluence to                                 Unincorporated Areas of
                                          approximately 375 feet                        Chariton County.
                                          downstream of Jackson
                                          Street.
Palmer Creek (backwater effects from     From the Lake Creek                    + 644  Unincorporated Areas of
 Missouri River).                         confluence to                                 Chariton County.
                                          approximately 1,375 feet
                                          upstream of Lewis Clark
                                          Road.
Puzzle Creek (backwater effects from     From the Chariton River                + 637  Unincorporated Areas of
 Missouri River).                         confluence to the                             Chariton County.
                                          upstream side of State
                                          Highway KK.
Salt Creek (backwater effects from       From approximately 1.0                 + 649  Unincorporated Areas of
 Missouri River).                         mile downstream of Ohio                       Chariton County.
                                          Road to approximately
                                          825 feet downstream of
                                          State Highway M.
Young Creek (backwater effects from      From approximately 1,950               + 636  Unincorporated Areas of
 Missouri River).                         feet downstream of                            Chariton County.
                                          Rockford Hills Avenue to
                                          approximately 1,550 feet
                                          upstream of Rockford
                                          Hills Avenue.
Young Creek Tributary 7 (backwater       From the Young Creek                   + 636  Unincorporated Areas of
 effects from Missouri River).            confluence to                                 Chariton County.
                                          approximately 1,250 feet
                                          upstream of Asbury Road.
----------------------------------------------------------------------------------------------------------------
* National Geodetic Vertical Datum.
+ North American Vertical Datum.
 Depth in feet above ground.
[caret] Mean Sea Level, rounded to the nearest 0.1 meter.

                                                    ADDRESSES

City of Brunswick
Maps are available for inspection at City Hall, 115 East Broadway, Brunswick, MO 65236.

City of Keytesville
Maps are available for inspection at City Hall, 404 West Bridge Street, Keytesville, MO 65261.

                                     Unincorporated Areas of Chariton County
Maps are available for inspection at the Chariton County Courthouse, 306 South Cherry Street, Keytesville, MO
 65261.

Village of Dalton
Maps are available for inspection at the Chariton County Courthouse, 306 South Cherry Street, Keytesville, MO
 65261.
----------------------------------------------------------------------------------------------------------------
                                   Mercer County, Ohio, and Incorporated Areas
                                             Docket No.: FEMA-B-1171
----------------------------------------------------------------------------------------------------------------
Beaver Creek (Lower)...................  Approximately 1,400 feet               + 861  City of Celina.
                                          downstream of Meyer Road.
                                         At the downstream side of              + 861
                                          the Grand Lake Dam.
Beaver Creek (Upper)...................  Approximately 850 feet                 + 873  Unincorporated Areas of
                                          downstream of State                           Mercer County, Village
                                          Route 219.                                    of Montezuma.

                                         At the downstream side of              + 876
                                          Casselia Montezuma Road.
Grand Lake Saint Mary's................  Entire shoreline within                + 872  City of Celina.
                                          community.
Saint Mary's River.....................  At the Van Wert County                 + 797  Unincorporated Areas of
                                          boundary.                                     Mercer County, Village
                                                                                of Mendon, Village of
                                                                                Rockford.
                                         At the Auglaize Bounty                 + 814
                                          boundary.
Wabash River...........................  Approximately 0.72 mile                + 922  Unincorporated Areas of
                                          downstream of State                           Mercer County, Village
                                          Route 49.                                     of Fort Recovery.
                                         Approximately 0.88 mile                + 928
                                          upstream of North 1st
                                          Street.
----------------------------------------------------------------------------------------------------------------
* National Geodetic Vertical Datum.
+ North American Vertical Datum.
 Depth in feet above ground.
[caret] Mean Sea Level, rounded to the nearest 0.1 meter.

                                                    ADDRESSES

City of Celina
Maps are available for inspection at City Hall, 426 West Market Street, Celina, OH 45822.

                                      Unincorporated Areas of Mercer County
Maps are available for inspection at the Mercer County Central Service Building, 220 West Livingston Street,
 Room A201, Celina, OH 45822.

Village of Fort Recovery
Maps are available for inspection at the Village Hall, 201 South Main Street, Fort Recovery, OH 45846.

Village of Mendon
Maps are available for inspection at the Village Hall, 102 South Main Street, Mendon, OH 45862.

Village of Montezuma
Maps are available for inspection at the Village Hall, 69 West Main Street, Montezuma, OH 45866.

Village of Rockford
Maps are available for inspection at the Village Hall, 151 East Columbia Street, Rockford, OH 45882.
----------------------------------------------------------------------------------------------------------------
                                  Brazos County, Texas, and Incorporated Areas
                                             Docket No.: FEMA-B-1085
----------------------------------------------------------------------------------------------------------------
Bee Creek Tributary B..................  Approximately 1,700 feet               + 286  City of College Station.
                                          downstream of Christine
                                          Lane.
                                         Just downstream of                     + 292
                                          Southwest Parkway.
Lick Creek.............................  Approximately 1,000 feet               + 216  City of College Station.
                                          downstream of Mission
                                          Hills Drive.
                                         Approximately 1.0 mile                 + 253
                                          upstream of William D.
                                          Fitch Parkway.
South Fork of Turkey Creek.............  At the confluence with                 + 262  City of Bryan.
                                          Turkey Creek.
                                         Approximately 650 feet                 + 282
                                          downstream of FM 2818.
Turkey Creek...........................  Approximately 2 miles                  + 226  City of Bryan,
                                          downstream from Jones                         Unincorporated Areas of
                                          Road.                                         Brazos County.
                                         Just downstream of FM                  + 333
                                          1688.
Turkey Creek Tributary B...............  At the confluence with                 + 250  City of Bryan.
                                          Turkey Creek.
                                         Approximately 0.6 mile                 + 292
                                          upstream of the
                                          confluence with Turkey
                                          Creek Tributary B1.
Turkey Creek Tributary B1..............  At the confluence with                 + 268  City of Bryan.
                                          Turkey Creek Tributary B.
                                         Approximately 0.5 mile                 + 290
                                          upstream of the
                                          confluence with Turkey
                                          Creek Tributary B.
Turkey Creek Tributary C...............  At the confluence with                 + 240  City of Bryan.
                                          Turkey Creek.
                                         Approximately 0.5 mile                 + 260
                                          upstream of Villa Maria
                                          Road.
Turkey Creek Tributary D...............  At the confluence with                 + 239  City of Bryan.
                                          Turkey Creek.
                                         Just downstream of                     + 273
                                          Traditions Drive.
Turkey Creek Tributary D1..............  At the confluence with                 + 252  City of Bryan.
                                          Turkey Creek Tributary D.
                                         Approximately 1,950 feet               + 276
                                          upstream of the
                                          confluence with Turkey
                                          Creek Tributary D.
Unnamed Tributary to Bee Creek           At the confluence with                 + 291  City of College Station.
 Tributary B.                             Bee Creek Tributary B.
                                         Approximately 613 feet                 + 293
                                          upstream of the
                                          confluence with Bee
                                          Creek Tributary B.
Unnamed Tributary to White Creek.......  Approximately 573 feet                 + 277  City of College Station.
                                          upstream of the
                                          confluence with Unnamed
                                          Tributary to White Creek
                                          Tributary 3.
                                         Approximately 1,800 feet               + 302
                                          downstream of the
                                          confluence with White
                                          Creek Tributary 1.

Unnamed Tributary to White Creek         At the confluence with                 + 289  City of College Station.
 Tributary 1.                             Unnamed Tributary to
                                          White Creek.
                                         Approximately 1,180 feet               + 300
                                          upstream of the
                                          confluence with Unnamed
                                          Tributary to White Creek.
Unnamed Tributary to White Creek         At the confluence with                 + 295  City of College Station.
 Tributary 2.                             Unnamed Tributary to
                                          White Creek.
                                         Approximately 600 feet                 + 308
                                          upstream of FM 2818.
Unnamed Tributary to White Creek         At the confluence with                 + 300  City of College Station.
 Tributary 3.                             Unnamed Tributary to
                                          White Creek.
                                         Approximately 280 feet                 + 303
                                          upstream of the
                                          confluence with Unnamed
                                          Tributary to White Creek.
Wickson Creek Tributary 23.............  At the confluence with                 + 267  Unincorporated Areas of
                                          Wickson Creek.                                Brazos County.
                                         Approximately 284 feet                 + 268
                                          downstream of Old
                                          Reliance Road.
----------------------------------------------------------------------------------------------------------------
* National Geodetic Vertical Datum.
+ North American Vertical Datum.
 Depth in feet above ground.
[caret] Mean Sea Level, rounded to the nearest 0.1 meter.

                                                    ADDRESSES

City of Bryan
Maps are available for inspection at the Engineering Services Department, 300 South Texas Avenue, 1st Floor,
 Bryan, TX 77803.

City of College Station
Maps are available for inspection at the Development Engineering Division, 1101 Texas Avenue, College Station,
 TX 77842.

                                      Unincorporated Areas of Brazos County

Maps are available for inspection at Brazos County Road and Bridge Department, 2617 Highway 21 West, Bryan, TX
 77803.
----------------------------------------------------------------------------------------------------------------
                             Prince George County, Virginia, and Incorporated Areas
                                             Docket No.: FEMA-B-1185
----------------------------------------------------------------------------------------------------------------
Harrison Creek.........................  Approximately 0.39 mile                 + 11  Unincorporated Areas of
                                          downstream of Puddledock                      Prince George County.
                                          Road.
                                         Approximately 1,405 feet                + 29
                                          upstream of Puddledock
                                          Road.
----------------------------------------------------------------------------------------------------------------
* National Geodetic Vertical Datum.
+ North American Vertical Datum.
 Depth in feet above ground.
[caret] Mean Sea Level, rounded to the nearest 0.1 meter.

                                                    ADDRESSES

                                  Unincorporated Areas of Prince George County

Maps are available for inspection at the Prince George County Planning Department, 6602 Courts Drive, Prince
 George, VA 23875.
----------------------------------------------------------------------------------------------------------------

(Catalog of Federal Domestic Assistance No. 97.022, ``Flood
Insurance.'')

    Dated: March 29, 2012.
Sandra K. Knight,
Deputy Associate Administrator for Mitigation, Department of Homeland
Security, Federal Emergency Management Agency.
[FR Doc. 2012-8612 Filed 4-9-12; 8:45 am]
BILLING CODE 9110-12-P


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[Federal Register Volume 78, Number 162 (Wednesday, August 21, 2013)]
[Notices]
[Pages 51781-51786]
[FR Doc No: 2013-20337]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-70211; File No. SR-NYSE-2013-58]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Amending the Fees for Display Use of the NYSE BBO and NYSE Trades
Market Data Products and Making Certain Technical Changes to the Fee
Schedule

August 15, 2013.
    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 August 1, 2013, New York Stock Exchange LLC (``NYSE'' or
the ``Exchange'') filed with the Securities and Exchange Commission
(the ``Commission'') the proposed rule change as described in Items I,
II, and III below, which Items have been prepared by the self-
regulatory organization. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend the fees for display use of the NYSE
BBO and NYSE Trades market data products and make certain technical
changes to the fee schedule. The changes will be operative on August 1,
2013. The text of 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 to amend the fees for display use of the NYSE
BBO \4\ and NYSE Trades \5\ market data products and make certain
technical changes to the fee schedule. The changes will be operative on
August 1, 2013.
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    \4\ NYSE BBO is an NYSE-only market data feed that allows a
vendor to redistribute on a real-time basis the same best-bid-and-
offer information that the Exchange reports under the Consolidated
Quotation (``CQ'') Plan for inclusion in the CQ Plan's consolidated
quotation information data stream. The data feed includes the best
bids and offers for all securities that are traded on the Exchange
and for which NYSE reports quotes under the CQ Plan.
    \5\ NYSE Trades is an NYSE-only market data feed that allows a
vendor to redistribute on a real-time basis the same last sale
information that the Exchange reports under the Consolidated Tape
Association (``CTA'') Plan for inclusion in the CTA Plan's
consolidated data streams and certain other related data elements.
Specifically, NYSE Trades includes the real-time last sale price,
time, size, and bid-ask quotations for each security traded on the
Exchange and a stock summary message. The stock summary message
updates every minute and includes NYSE's opening price, high price,
low price, closing price, and cumulative volume for the security.
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    The Exchange currently charges $15 per month for professional users
and $5 per month for non-professional users for display use of NYSE
BBO.\6\ Alternatively, the Exchange charges $0.005 per quote for
display use of NYSE BBO for non-professional users, capped at $5 per
month per non-professional user.\7\ The Exchange currently charges $15
per month for professional users for display use of NYSE Trades. The
Exchange currently does not offer NYSE Trades for non-professional
users under a per-user fee structure.\8\
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    \6\ The Exchange applies the same criteria for qualification as
a ``non-professional subscriber'' as the CTA and CQ Plan
participants use. See Securities Exchange Act Release No. 62181 (May
26, 2010), 75 FR 31488 (June 3, 2010) (SR-NYSE-2010-30).
    \7\ Id. The cap is referenced in this filing, although it does
not currently appear in the fee schedule.
    \8\ See Securities Exchange Act Release No. 59309 (Jan. 28,
2009), 74 FR 6073 (Feb. 4, 2009) (SR-NYSE-2009-04). When NYSE Trades
was initially offered, the Exchange had not observed a demand for
non-professional use. See id. The Exchange offers two last sale
market data products for distribution to non-professional users,
NYSE Trades Digital Media and NYSE Realtime Reference Prices Digital
Media. See Securities Exchange Act Release No. 69298 (Apr. 4, 2013),
78 FR 21464 (Apr. 10, 2013) (SR-NYSE-2013-24).

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    The Exchange also charges an access fee of $1,500 per month for
NYSE BBO and an access fee of $1,500 for NYSE Trades. However, a single
access fee applies for clients receiving both NYSE BBO and NYSE Trades.
    Vendors that redistribute NYSE Trades data pay a redistribution fee
of $1,000 per month.
    The Exchange proposes to lower the professional user fees for
display use of NYSE BBO from $15 per month to $4 per month, lower the
non-professional user fees for display use of NYSE BBO from $5 per
month to $0.20 per month, and eliminate the per quote option for
display use of NYSE BBO for non-professional users. The Exchange also
proposes to lower the professional user fee for display use of NYSE
Trades from $15 per month to $4 per month and introduce a fee for
display use of NYSE Trades by non-professional users of $0.20 per
month.
    The Exchange also proposes to establish a $190,000 per month
enterprise fee for an unlimited number of professional and non-
professional users for NYSE BBO and a $190,000 per month enterprise fee
for an unlimited number of professional and non-professional users for
NYSE Trades. A single enterprise fee will apply for vendors receiving
both NYSE BBO and NYSE Trades.
    As an example, under the current fee structure, if a firm had 7,000
professional users who each received NYSE Trades at $15 per month and
NYSE BBO at $15 per month, then the firm currently pays $210,000 per
month in professional user fees. Under the proposed enterprise fee, the
firm will pay a flat fee of $190,000 for an unlimited number of
professional and non-professional users for both products.
    A vendor that pays the enterprise fee would not have to report the
number of such users on a monthly basis.\9\ However, every six months,
a vendor must provide the Exchange with a count of the total number of
natural person users of each product, including both professional and
non-professional users.
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    \9\ Most professional users currently are subject to a per
display device count, except for a small number of professional
users that have qualified for the Exchange's Unit-of-Count Policy.
See SR-NYSE-2010-30, supra n.6; Securities Exchange Act Release No.
59606 (Mar. 19, 2009), 74 FR 13293 (Mar. 26, 2009) (SR-NYSE-2009-
04); Securities Exchange Act Release No. 59544 (Mar. 9, 2009), 74 FR
11162 (Mar. 16, 2009) (SR-NYSE-2008-131) (establishing Unit-of-Count
Policy). That policy continues to apply to such professional users
for display use only if the proposed enterprise fee does not apply.
See Securities Exchange Act Release No. 69278 (April 2, 2013) 78 FR
20973 (April 8, 2013) (SR-NYSE-2013-25).
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    Lastly, the Exchange proposes to make certain technical corrections
to clarify its fee schedule and to delete operative dates that are no
longer needed.
    The purpose of the foregoing changes is to encourage greater use of
NYSE BBO and NYSE Trades by making them more affordable, to compete
more effectively with similar products in the marketplace, and to
clarify the fee schedule. The Exchange is eliminating the per quote
option for display use of NYSE BBO for non-professional users because
non-professional users are not electing to use it. The Exchange is not
aware of any significant problems that persons affected are likely to
have in complying with the proposed rule change.
    The Exchange further believes that the proposed rule change is
consistent with the market-based approach of the Securities and
Exchange Commission (``Commission''). 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
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.' '' \10\
---------------------------------------------------------------------------

    \10\ 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 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.\11\ In addition, the existence of
alternatives to NYSE BBO and NYSE Trades, including real-time
consolidated data, free delayed 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 elect such
alternatives.
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    \11\ Section 916 of the Dodd-Frank Wall Street Reform and
Consumer Protection Act of 2010 (the ``Dodd-Frank Act'') amended
paragraph (A) of Section 19(b)(3) of the Act, 15 U.S.C. 78s(b)(3),
to make clear that all exchange fees for market data may be filed by
exchanges on an immediately effective basis.
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    As the NetCoalition decision noted, the Commission is not required
to undertake a cost-of-service or ratemaking approach, and the Exchange
incorporates by reference into this proposed rule change its
affiliate's analysis of this topic in another rule filing.\12\
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    \12\ See Securities Exchange Act Release No. 63291 (Nov. 9,
2010), 75 FR 70311 (Nov. 17, 2010) (SR-NYSEArca-2010-97).
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6 of the Act,\13\ in general, and
Sections 6(b)(4) and 6(b)(5) of the Act,\14\ in particular, in that it
provides an equitable allocation of reasonable fees among its members,
issuers, and other persons using its facilities and is not designed to
permit unfair discrimination among customers, issuers, brokers, or
dealers. The Exchange also believes that the proposed rule change is
consistent with Section 11(A) of the Act \15\ in that it is consistent
with (i) fair competition among brokers and dealers, among exchange
markets, and between exchange markets and markets other than exchange
markets and (ii) the availability to brokers, dealers, and investors of
information with respect to quotations for and transactions in
securities. Furthermore, the proposed rule change is consistent with
Rule 603 of Regulation NMS,\16\ which provides that any national
securities exchange that distributes information with respect to
quotations for or transactions in an NMS stock do so on terms that are
not unreasonably discriminatory.
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    \13\ 15 U.S.C. 78f(b).
    \14\ 15 U.S.C. 78f(b)(4), (5).
    \15\ 15 U.S.C. 78k-1.
    \16\ See 17 CFR 242.603.
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    The Exchange believes that lowering the professional and non-
professional user fees for NYSE BBO and lowering the professional user
fee for NYSE Trades is reasonable because it will make the products
more affordable and result in their greater availability to
professional and non-professional users.

The Exchange believes that introducing a non-professional fee for NYSE
Trades is reasonable because it provides an additional method for
retail investors to access NYSE last sale data and provides the same
last sale data that is available to professional users, an option
heretofore unavailable.\17\ The Exchange believes it is reasonable to
eliminate the per quote option for non-professional users of NYSE BBO
because non-professional users have not elected this option.
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    \17\ See supra n.8.
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    In addition, the Exchange believes that the proposed fees are
reasonable when compared to fees for comparable products offered by at
least one other exchange and under the CTA and CQ Plans. Specifically,
The NASDAQ Stock Market LLC (``NASDAQ'') offers NASDAQ Basic, which
includes best bid and offer and last sale data, for a monthly fee of
$10 per professional subscriber and $0.50 per non-professional
subscriber; alternatively, a broker-dealer may purchase an enterprise
license at a rate of $100,000 per month for distribution to an
unlimited number of non-professional subscribers only.\18\ The
Exchange's proposed per-user fees are lower than NASDAQ's fees. While
the Exchange's enterprise fee is higher, the Exchange will permit
broader distribution of its data for this fee, i.e., to both
professional and non-professional users. Under the current CTA and CQ
Plans, Tape A consolidated last sale and bid-ask data are offered
together for a monthly fee of $18.75-$127.25 per device, depending on
the number of professional subscribers, and $0.50-$1.00 per non-
professional subscriber, depending on the number of non-professional
subscribers.\19\ A monthly enterprise fee of $660,000 is available
under which a U.S. registered broker-dealer may distribute data to an
unlimited number of its own employees and its nonprofessional
subscriber brokerage account customers. Participants in the CTA and CQ
Plans recently submitted an immediately effective filing with rate
changes that are expected to be implemented September 1, 2013.\20\ The
Exchange is proposing professional and non-professional user fees and
enterprise fees that are less than the fees currently charged or
proposed by the CTA and CQ Plans, in most cases less than half of the
CTA fee. In contrast to NASDAQ and the CTA and CQ Plans, the Exchange
also will permit enterprise distribution by a non-broker-dealer.
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    \18\ See NASDAQ Rule 7047.
    \19\ See CTA Plan dated July 25, 2012 and CQ Plan dated August
23, 2010, available at https://cta.nyxdata.com/CTA.
    \20\ See Securities Exchange Act Release No. 70010 (July 19,
2013) (File No. SR-CTA/CQ-2013-04). Monthly fees will be $20-50 for
professional subscribers and $1 for non-professional subscribers for
Tape A last sale and bid-ask data, and the monthly enterprise fee
described above will be increased to $686,400.
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    The proposed enterprise fees for NYSE BBO and NYSE Trades also are
reasonable because they could result in a fee reduction for vendors
with a large number of professional and non-professional users, as
described in the example above. If a vendor has a smaller number of
professional users of NYSE BBO and/or NYSE Trades, then it may continue
using the per user structure and benefit from the per user fee
reductions. By reducing prices for vendors with a large number of
professional and non-professional users, the Exchange believes that
more vendors may choose to offer NYSE BBO and NYSE Trades, thereby
expanding the distribution of this market data for the benefit of
investors. The Exchange also believes that offering an enterprise fee
will expand the range of options for offering NYSE BBO and NYSE Trades
and will allow vendors greater choice in selecting the most appropriate
level of data and fees for the professional and non-professional users
they are servicing.
    The Exchange further believes that the proposed enterprise fees are
reasonable because they will simplify billing for certain recipients
that have large numbers of professional and non-professional users.
Firms that pay the proposed enterprise fees will not have to report the
number of users on a monthly basis as they currently do, but rather
will only have to count natural person users every six months; this is
a significant reduction in administrative burdens and is a significant
value. The Exchange believes that it is reasonable to charge a single
enterprise fee for clients receiving both NYSE BBO and NYSE Trades
because the Exchange has charged a single access fee for both products
since 2010,\21\ and the products will continue to be offered separately
for vendors and users that so choose.
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    \21\ See SR-NYSE-2010-30, supra n.6.
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    The Exchange believes that the proposed fees are equitable and not
unfairly discriminatory because they will be charged uniformly to
vendors and users that select these products. The Exchange notes that
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
reduce the price of data to retail investors and make it more broadly
available.\22\ The Exchange further believes that offering NYSE Trades
to non-professional users with the same data available to professional
users results in greater equity among data recipients. The Exchange
believes that eliminating the per quote non-professional user fee for
NYSE BBO is equitable and not unfairly discriminatory because non-
professional users have not elected this option and the Exchange will
continue offering other methods by which non-professional users can
access this data. Finally, the Exchange believes that it is equitable
and not unfairly discriminatory to establish an enterprise fee because
it reduces the Exchange's costs and administrative burdens in tracking
and auditing large numbers of users.
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    \22\ See, e.g., Securities Exchange Act Release No. 20002, File
No. S7-433 (July 22, 1983) (establishing nonprofessional fees for
CTA data); NASDAQ Rules 7023(b), 7047.
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    The proposed technical corrections to the fee schedule will benefit
vendors and users by making the fee schedule clearer and easier to
understand.
    For these reasons, the Exchange believes that the proposed fees are
reasonable, equitable, and not unfairly discriminatory.

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

    In accordance with Section 6(b)(8) of the Act,\23\ 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
data feed products is constrained by (1) The inherent contestability of
the market for proprietary data and actual competition for the sale of
such data, (2) the joint product nature of exchange platforms, and (3)
the existence of alternatives to proprietary data.
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    \23\ 15 U.S.C. 78f(b)(8).
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    The Existence of Actual Competition. The market for proprietary
data products is currently 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 and order flow and sales of market data itself,
providing virtually limitless 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.
    Competitive markets for listings, order flow, executions, and
transaction reports provide pricing discipline for the inputs of
proprietary data products and therefore constrain markets from
overpricing proprietary market data. The U.S. Department of Justice
also has acknowledged the aggressive competition among exchanges,
including for the sale of proprietary market data itself. In announcing
that the bid for NYSE Euronext by NASDAQ OMX Group Inc. and
IntercontinentalExchange Inc. had been abandoned, Assistant Attorney
General Christine Varney 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.
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    It is common for broker-dealers to further exploit this recognized
competitive constraint by sending their order flow and transaction
reports to multiple markets, rather than providing them all to a single
market. 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\
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    \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.
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    In addition, in the case of products that are distributed through
market data vendors, the market data 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. Internet portals, such as Google,
impose price discipline by providing only data that they believe will
enable them to attract ``eyeballs'' that contribute to their
advertising revenue. Similarly, vendors will not offer NYSE BBO or NYSE
Trades unless those products will help them maintain current users or
attract new ones. For example, a broker-dealer will not choose to offer
NYSE BBO or NYSE Trades to its retail customers unless the broker-
dealer believes that the retail customers will use and value the data
and the provision of such data will help the broker-dealer maintain the
customer relationship, which allows the broker-dealer to generate
profits for itself. Professional users will not request NYSE BBO or
NYSE Trades from market data vendors unless they can use the data for
profit-generating purposes in their businesses. All of these 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, market
data and trade executions 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 platforms where the order
can be posted, including the execution fees, data quality, and price
and distribution of their data products. The more trade executions a
platform does, the more valuable its market data products become.
    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, an exchange's broker-
dealer customers view the costs of transaction executions and market
data as a unified cost of doing business with the exchange.
    Other market participants have noted that the liquidity provided by
the order book, trade execution, core market data, and non-core market
data are joint products of a joint platform and have common costs.\26\
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.\27\
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    \26\ See Securities Exchange Act Release No. 62887 (Sept. 10,
2010), 75 FR 57092, 57095 (Sept. 17, 2010) (SR-Phlx-2010-121);
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) (``all 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 August 1, 2008
Comment Letter of Jeffrey S. Davis, Vice President and Deputy
General Counsel, NASDAQ OMX Group, Inc., Statement of Janusz Ordover
and Gustavo Bamberger (``because market data is both an input to and
a byproduct of executing trades on a particular platform, market
data and trade execution services are an example of `joint products'
with `joint costs.' ''), attachment at pg. 4, available at
www.sec.gov/comments/34-57917/3457917-12.pdf.
    \27\ 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.'').
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    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. Thus, because it
is impossible to obtain the data inputs to create market data products
without a fast, technologically robust, and well-regulated execution
system, system costs 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.
    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 internalizing broker-dealers (``BDs'') and various forms of
alternative trading systems (``ATSs''), including dark pools and
electronic communication networks (``ECNs''). 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
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. 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.
    Existence of Alternatives. The large number of SROs, 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, ATS, and BD is currently permitted to produce
proprietary data products, and many currently do or have announced
plans to do so, including but not limited to the Exchange, NYSE MKT,
NYSE Arca, NASDAQ OMX, BATS, and Direct Edge.
    The fact that proprietary data from ATSs, BDs, 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. 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. Because market data users can thus 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.
    Moreover, consolidated data provides two additional measures of
pricing discipline for proprietary data products that are a subset of
the consolidated data stream. First, the consolidated data is widely
available in real-time at $0.50-$1 per month for non-professional
users. Second, consolidated data is also available at no cost with a
15- or 20-minute delay. Because consolidated data contains marketwide
information, it effectively places a cap on the fees assessed for
proprietary data that is simply a subset of the consolidated data (such
as NYSE Trades and NYSE BBO). The mere availability of low-cost or free
consolidated data provides a powerful form of pricing discipline for
proprietary data products that contain data elements that are a subset
of the consolidated data by highlighting the optional nature of
proprietary products.
    Those competitive pressures imposed by available alternatives are
clearly evident in the Exchange's proposed pricing. As noted above, the
Exchange's proposed per-user fees are lower than NASDAQ's fees. While
the Exchange's enterprise fee is higher, the Exchange will permit
broader distribution of its data, i.e., to both professional and non-
professional users.\28\ The Exchange's proposed user and enterprise
fees are less (in most cases substantially less) than the fees charged
by the CTA and CQ Plans, and the Exchange's enterprise fee also permits
distribution by a non-broker-dealer.\29\
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    \28\ See supra n. 18.
    \29\ See supra nn. 19-20.
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    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 Trading and Direct Edge. Today, BATS
and Direct Edge provide certain market data at no charge on their Web
sites in order to attract more order flow, and use revenue rebates from
resulting additional executions to maintain low execution charges for
their users.\30\
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    \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.
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    Further, data products are valuable to professional users only if
they can be used for profit-generating purposes in their businesses and
valuable to non-professional users only insofar as they provide
information that such users expect will assist them in tracking prices
and market trends and making order routing and trading decisions.\31\
The Exchange believes that the proposed lower user fees and the
enterprise fees, which may permit wider distribution of last sale and
quote information at a lower cost to vendors with a large number of
professional and non-professional users, may encourage more users to
demand and more vendors to choose to offer NYSE BBO and NYSE Trades,
thereby benefitting professional and non-professional users, including
public investors. The Exchange also believes that offering NYSE Trades
for non-professional users on a per user basis and providing the same
information as is provided to professional users will create more
choices for vendors that will allow them to offer products with the
appropriate level of information at a range of prices, thereby
encouraging wider distribution of the data.
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    \31\ Rule 603(c) of Regulation NMS requires vendors to make the
consolidated core data feeds available to customers when trading and
order-routing decisions can be implemented. See 17 CFR 242.603(c).
---------------------------------------------------------------------------

    In establishing the proposed fees, 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 real-time consolidated data, free delayed
consolidated data, and proprietary data from other sources, ensures
that the Exchange cannot set unreasonable fees, or fees that are
unreasonably discriminatory, when vendors and subscribers can elect
these alternatives or choose not to purchase a specific proprietary
data product if its cost to purchase is not justified by the returns
any particular vendor or subscriber would achieve through the purchase.

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

    No written comments were solicited or received with respect to the
proposed rule change.

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

    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.
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    \32\ 15 U.S.C. 78s(b)(3)(A).
    \33\ 17 CFR 240.19b-4(f)(2).
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    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \34\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
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    \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_ADDRESS>Please include
File Number SR-NYSE-2013-58 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-NYSE-2013-58. 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; 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-NYSE-2013-58 and should be
submitted on or before September 11, 2013.
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    \35\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\35\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-20337 Filed 8-20-13; 8:45 am]
BILLING CODE 8011-01-P


Comment Info: =================

General Comment:Please extend the comment period to 180 days so that we may get the voice of the entire vaping community heard. Regulation is fine but this proposal will be death of American small business and destroy the vaping industry we have worked hard to create.