[Federal Register Volume 87, Number 107 (Friday, June 3, 2022)]
[Notices]
[Page 33809]
[FR Doc No: 2022-11920]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Internal Agency Docket No. FEMA-4650-DR; Docket ID FEMA-2022-0001]

Washington; Amendment No. 1 to Notice of a Major Disaster
Declaration

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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SUMMARY: This notice amends the notice of a major disaster for the
State of Washington (FEMA-4650-DR), dated March 29, 2022, and related
determinations.

DATES: The amendment was issued May 17, 2022.

FOR FURTHER INFORMATION CONTACT: Dean Webster, Office of Response and
Recovery, Federal Emergency Management Agency, 500 C Street SW,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Notice is hereby given that the incident
period for this declared disaster is now December 26, 2021, through and
including January 15, 2022.

    The following Catalog of Federal Domestic Assistance Numbers
(CFDA) are to be used for reporting and drawing funds: 97.030,
Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis
Counseling; 97.033, Disaster Legal Services; 97.034, Disaster
Unemployment Assistance (DUA); 97.046, Fire Management Assistance
Grant; 97.048, Disaster Housing Assistance to Individuals and
Households In Presidentially Declared Disaster Areas; 97.049,
Presidentially Declared Disaster Assistance--Disaster Housing
Operations for Individuals and Households; 97.050, Presidentially
Declared Disaster Assistance to Individuals and Households--Other
Needs; 97.036, Disaster Grants--Public Assistance (Presidentially
Declared Disasters); 97.039, Hazard Mitigation Grant.

Deanne Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2022-11920 Filed 6-2-22; 8:45 am]
BILLING CODE 9111-23-P


[Federal Register Volume 80, Number 10 (Thursday, January 15, 2015)]
[Notices]
[Pages 2148-2154]
[FR Doc No: 2015-00530]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-74027; File No. SR-NYSE-2014-76]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Amending the Fees for NYSE OpenBook

 January 9, 2015.
    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 December 31, 2014, 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 NYSE OpenBook to: (1)
Change the way the user fee is calculated and applied, operative on
January 1, 2015; (2) establish eligibility requirements for
redistribution on a managed non-display basis and an access fee for
managed non-display data recipients, operative on January 1, 2015; and
(3) increase the fee cap for redistributor internal support use,
operative on March 1, 2015. 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 NYSE OpenBook,\4\ as
set forth on the NYSE Proprietary Market Data Fee Schedule (``Fee
Schedule''), as follows:
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    \4\ See Securities Exchange Act Release Nos. 59544 (Mar. 9,
2009), 74 FR 11162 (Mar. 16, 2009) (SR-NYSE-2008-131) and 62038 (May
5, 2010), 75 FR 26825 (May 12, 2010) (SR-NYSE-2010-22) (``Unit-of-
Count Policy filings''). See also Securities Exchange Act Release
Nos. 69278 (Apr. 2, 2013), 78 FR 20973 (April 8, 2013) (SR-2013-25)
and 72923 (Aug. 26, 2014), 79 FR 52079 (Sept. 2, 2014) (SR-NYSE-
2014-43) (``Non-Display Fee filings'').
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     To change the way the user fees are calculated and applied
by eliminating the unit-of-count policy, operative on January 1, 2015;
     To establish eligibility requirements for redistribution
of market data on a Managed Non-Display basis and establish an access
fee for Managed Non-Display data recipients, operative on January 1,
2015; and
     To increase the fee cap for redistributor internal support
use, operative on March 1, 2015.
Changes to the Method of Calculating and Applying User Fees
    For display use of the NYSE OpenBook data feed, the Fee Schedule
sets forth a Professional User Fee of $60 per month or a Non-
Professional User Fee of $15 per month.\5\ These user fees generally
apply to each display device that has access to NYSE OpenBook.
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    \5\ A $25,000 per month cap on non-professional user fees
applies to broker-dealers only.
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    Vendors and subscribers that are eligible for the Unit-of-Count
Policy may avail themselves of an alternative method for counting how
many user fees should be charged for display use of the NYSE OpenBook
data feed. The Unit-of-Count Policy was first introduced as an NYSE
OpenBook pilot in 2009.\6\ Since April 2013, the Unit-of-Count Policy
has applied only to user fees associated with display usage.\7\
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    \6\ See Unit-of-Count Policy filings supra note 4.
    \7\ Existing customers approved for the Unit-of-Count Policy for
display usage have continued to follow the Policy in anticipation of
new display fees being implemented.

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    The effect of the Unit-of-Count Policy for these subscribers is
that a single user fee applies to individual users that receive
multiple display device services, i.e. multiple devices displaying NYSE
OpenBook, referred to as ``netting.'' The Exchange proposes to retire
the Unit-of-Count Policy effective January 1, 2015. As a result, as of
January 1, 2015, subscribers that are currently eligible for
``netting'' under the Unit-of-Count Policy would pay the user fee for
each display device that has access to NYSE OpenBook, even if a single
user is receiving NYSE OpenBook over multiple devices, as well as all
other applicable fees set forth on the Fee Schedule.\8\
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    \8\ The Unit-of-Count Policy is available for NYSE OpenBook,
NYSE Trades and NYSE BBO as a method for counting users. The
Exchange is proposing to retire the Unit-of-Count Policy with
respect to all of these products and thereby harmonize the methods
for counting users among all NYSE data products. See SR-NYSE-2014-
75.
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Proposed Changes to Managed Non-Display Services and Fees
    Non-Display Use of NYSE market data means accessing, processing, or
consuming NYSE market data delivered via direct and/or Redistributor
\9\ data feeds for a purpose other than in support of a data
recipient's display or further internal or external redistribution. A
Redistributor approved for Managed Non-Display Services manages and
controls the access to NYSE OpenBook and does not allow for further
internal distribution or external redistribution of NYSE OpenBook by
the data recipients. Managed Non-Display Services Fees apply when a
data recipient's non-display applications are hosted by a Redistributor
that has been approved for Managed Non-Display Services.
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    \9\ ``Redistributor'' means a vendor or any other person that
provides an NYSE data product to a data recipient or to any system
that a data recipient uses, irrespective of the means of
transmission or access.
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    A Redistributor approved for Managed Non-Display Services is
required to report to the Exchange on a monthly basis the data
recipients that are receiving NYSE OpenBook through the Redistributor's
Managed Non-Display Service. A data recipient receiving NYSE OpenBook
through a Redistributor's Managed Non-Display Service does not have any
reporting requirements.
    Currently, to be approved for Managed Non-Display Services, a
Redistributor of the Managed Non-Display Services must be approved
under the Unit-of-Count policy.\10\ In connection with the retirement
of the Unit-of-Count Policy, eligibility for Managed Non-Display
Services of NYSE Open Book would no longer be based on eligibility
under the Unit-of-Count Policy. The Exchange proposes instead to
establish eligibility requirements specifically for the redistribution
of market data for Managed Non-Display Services. The Exchange also
proposes to add an access fee that would apply to a data recipient that
receives NYSE Open Book from an approved Redistributor of Managed Non-
Display Services.
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    \10\ See Unit-of-Count Policy filings, supra note 4.
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    The proposed eligibility requirements for the provision of Managed
Non-Display Services would be similar to the eligibility requirements
for the Unit-of-Count Policy in that they would require the
Redistributor to manage and control the access to NYSE OpenBook for
data recipients' non-display applications and not allow for further
internal distribution or external redistribution of the information by
data recipients. In addition, to be eligible to provide Managed Non-
Display Services, the Redistributor would be required to (a) host the
data recipients' non-display applications in equipment located in the
Redistributor's data center and/or hosted space/cage and (b) offer NYSE
OpenBook in the Redistributor's own messaging formats (rather than
using raw NYSE message formats) by reformatting and/or altering NYSE
OpenBook prior to retransmission without affecting the integrity of
NYSE OpenBook and without rendering NYSE OpenBook inaccurate, unfair,
uninformative, fictitious, misleading or discriminatory. The proposed
eligibility requirements are similar to data distribution models
currently in use and align the Exchange with other markets.\11\
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    \11\ See Securities Exchange Act Release Nos. 70748 (Oct. 23,
2013), 70748 (Oct. 23, 2013), 78 FR 64569 (Oct. 29, 2013) (SR-Phlx-
2013-105) (notice of filing and immediate effectiveness of proposed
rule change to establish non-display Managed Data Solution for
NASDAQ OMX PHLX (``Phlx'')); 70269 (Aug. 27, 2013), 78 FR 54336
(Sept. 3, 2013) (SR-NASDAQ-2013-106) (notice of filing and immediate
effectiveness of proposed rule change to establish non-display
Managed Data Solution for the NASDAQ Stock Market (``NASDAQ'')); and
69182 (Mar. 19, 2013), 78 FR 18378 (Mar. 26, 2013) (SR-Phlx-2013-28)
(notice of filing and immediate effectiveness of proposed rule
change to establish non-display Managed Data Solution for Phlx
equities market PSX).
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    The reporting requirements associated with the Managed Non-Display
Service would not change. A Redistributor approved for Managed Non-
Display Service would be required to report to the Exchange on a
monthly basis the data recipients that are receiving NYSE OpenBook
through the Redistributor's Managed Non-Display Service. A data
recipient receiving NYSE OpenBook through a Redistributor's Managed
Non-Display Service would continue not to have any reporting
requirements.
    In addition, the Exchange proposes to adopt an Access Fee of
$2,500/month applicable only to data recipients that receive NYSE
OpenBook from an approved Redistributor of Managed Non-Display
Services, operative January 1, 2015. Currently, data recipients are
required to pay an Access Fee of $5,000/month to receive NYSE OpenBook,
which has not been charged to data recipients of Managed Non-Display
Services of NYSE OpenBook. Because the purpose of an access fee is to
charge data recipients for access to the Exchange's proprietary market
data, the Exchange believes it is appropriate to charge an access fee
to all data recipients, including recipients of Managed Non-Display
Services.\12\ In recognition that data recipients of Managed Non-
Display Services receive NYSE OpenBook in a controlled format, the
Exchange proposes to establish an Access Fee that would be applicable
only to data recipients of Managed Non-Display Services and that would
be half the size of the current Access Fee. In connection with this
change, the Exchange also proposes to amend the Fee Schedule to specify
that the current Access Fee of $5,000/month is charged to data
recipients other than those receiving data through Managed Non-Display
Services. The proposed Managed Non-Display Access fee would be in
addition to the current Managed Non-Display Services Fee of $2,400/
month by each data recipient.
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    \12\ In order to harmonize its approach to fees for its market
data products, the Exchange is proposing to establish an access fee
for Managed Non-Display Services for NYSE BBO, NYSE Trades, and NYSE
Order Imbalance t that are also half of the existing access fee for
each respective data feed. See SR-NYSE-2014-75 and SR-NYSE-2014-77.
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Proposed Redistributor Internal Support User Fee Cap
    The Exchange proposes to increase the Redistributor Support Fee Cap
to $3,000/month, the equivalent of fees payable for 50 Professional
Users per month, effective as of March 1, 2015, and to add the
Redistributor Support Fee Cap to the Fee Schedule. This increases the
fee cap from $1,500/month, as set by the Exchange in 2009.\13\
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    \13\ See Securities Exchange Act Release No. 59898 (May 11,
2009), 74 FR 22989 (May 14, 2009) (SR-NYSE-2009-37). One customer is
currently paying the cap for Redistributor internal use.
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    Specifically, the cap on user fees would apply to a Redistributor's
internal users who receive the NYSE OpenBook data feed and provide
support to the Redistributor of the NYSE

OpenBook data feed in the areas of customer service, data quality,
development, software product management, product development,
programming, technical operations, technical support, and sales. These
internal users would be required to be located on the Redistributor's
premises or to access NYSE OpenBook only on the Redistributor's
platform. Internal users using NYSE OpenBook in connection with
trading, investment advice, newsroom activities, research, algorithmic
programming for trading systems, free trials/sales promotions, personal
use, or to perform any other functions not related to the provision of
support functions to the Redistributor's external customers would not
be included in the Redistributor Support Fee Cap.\14\
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    \14\ See Nasdaq Global Data Policies, Oct. 10, 2014, http://www.nasdaqtrader.com/content/AdministrationSupport/AgreementsData/datapolicies.pdf (last visited Dec. 15, 2014), ``Non-Billable:
Internal Administrative Usage Policy,'' which establishes similar
standards for internal administrative usage on a non-billable basis.
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    Redistributors would have to request that their Professional User
Fees related to such internal support functions be counted towards the
Redistributor Support Fee Cap. To be eligible for the fee cap, a
Redistributor would have to provide the Exchange with a list of all
employees who would be reported as eligible internal users, and to
include in the list the job functions of the employees and explanations
of their use of NYSE OpenBook. The Exchange reserves the right under
its contracts with Redistributors to monitor use closely and be
provided with updated lists of employees, their job functions and their
use of NYSE OpenBook, upon request. If an employee's use of NYSE
OpenBook does not meet the requirements of internal support function
described above, it would not be eligible for the Redistributor Support
Fee Cap and would be charged a separate Professional User Fee.
    The proposed Redistributor Support Fee Cap would be operative March
1, 2015.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6 of the Act,\15\ in general, and
Sections 6(b)(4) and 6(b)(5) of the Act,\16\ in particular, in that it
provides an equitable allocation of reasonable fees among users and
recipients of the data and is not designed to permit unfair
discrimination among customers, issuers, and brokers.
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    \15\ 15 U.S.C. 78f(b).
    \16\ 15 U.S.C. 78f(b)(4), (5).
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    The Exchange believes that it is reasonable to retire the Unit-of-
Count Policy. First, as evidenced by the low number of eligible
subscribers, the Unit-of-Count Policy is not currently considered
useful to market data recipients as a method for counting users. In
addition, as the Exchange noted in the 2013 Non-Display Filing, the
Exchange determined at that time that its fee structure, which was
based primarily on counting devices, both display and non-display, and
included the Unit-of-Count Policy, was no longer appropriate in light
of market and technology developments. In addition to implementing the
non-display pricing to address the difficulties of counting non-display
devices, and to reflect the value of non-display data to customers, the
Exchange noted that it anticipated implementing a new display use fee
structure later. Retiring the Unit-of-Count Policy, which now applies
only to display use, would allow the Exchange to apply a consistent
method for counting users among all customers using NYSE OpenBook,
whether on a display or non-display basis.
    The Exchange believes that revising the eligibility requirements
for Managed Non-Display Services so that the requirements are more
closely aligned with the nature of the services being provided is
reasonable. The proposed additional requirements for hosting in the
Redistributor's data center and for reformatting and/or altering the
market data prior to retransmission are also consistent with similar
requirements of other markets for the provision of managed data.\17\
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    \17\ See supra note 11.
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    The Exchange believes that the proposed Access Fee for Managed Non-
Display Services is reasonable, because the data is of value to
recipients, and it is reasonable to charge them a lower access fee
because they are receiving the data through a Redistributor in a
controlled form rather than from the Exchange in raw form. The Exchange
believes that the proposed fee directly and appropriately reflects the
significant value of using non-display data in a wide range of
computer-automated functions relating to both trading and non-trading
activities and that the number and range of these functions continue to
grow through innovation and technology developments. The NASDAQ and
Phlx also both offer managed non-display data solutions and charge
access fees for such services.\18\ The fee is also equitable and not
unfairly discriminatory because it would apply to all data recipients
that choose to subscribe to Managed Non-Display Services for NYSE
OpenBook.
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    \18\ See supra note 11. NASDAQ offers a Managed Data Solution
that assesses a monthly Managed Data Solution Administration fee of
$1,500 and monthly Subscriber fees of $60 for non-professionals to
$300 for professionals. See NASDAQ Rule 7026(b). Phlx charges a
monthly Managed Data Solution Administration fee of $2,000 and a
monthly Subscriber fee of $500. The monthly License fee is in
addition to the monthly Distributor fee of $3,500 (for external
usage), and the $500 monthly Subscriber fee is assessed for each
Subscriber of a Managed Data Solution. See Securities Exchange Act
Release No. 70748 (Oct. 23, 2013), 78 FR 64569 (Oct. 29, 2013) (SR-
Phlx-2013-105).
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    The Exchange believes that it is reasonable to raise the
Redistributor Support Fee Cap. The purpose of the Professional User Fee
is to charge for each use of NYSE OpenBook data feed. The Exchange
believes it is appropriate to charge user fees for employees who
provide internal support functions at Redistributors because the
business model of Redistributors is distributing data, and as a related
function, providing support functions for such distribution of data.
Accordingly, the internal support functions at a Redistributor
contribute to the value that such Redistributors provide to their own
customers, and are therefore an integral part of a Redistributor's
business model. While such internal use is a value to a Redistributor
and its customers, the Exchange recognizes that internal support
functions differ from other uses of NYSE OpenBook, which is why the
Exchange provides for a Redistributor Support Fee Cap. The Exchange
believes it is reasonable to increase the fee cap to reflect the value
that such support functions serve within a Redistributor. While the
NYSE anticipates that only the largest vendors would devote sufficient
personnel to administrative functions to take advantage of the proposed
increased fee cap, in the Exchange's view, limiting the fee exposure of
its largest vendors does not unreasonably discriminate against other
vendors under Section 603(a)(2) of Regulation NMS.
    The fees are also equitable and not unfairly discriminatory because
they will apply to all data recipients that choose to subscribe to the
feeds.
    The Exchange notes that NYSE OpenBook is entirely optional. The
Exchange is not required to make NYSE OpenBook available or to offer
any specific pricing alternatives to any customers, nor is any firm
required to purchase NYSE OpenBook. Firms that do purchase NYSE
OpenBook do so for the primary goals of using it to increase revenues,
reduce expenses, and in some

instances compete directly with the Exchange (including for order
flow); those firms are able to determine for themselves whether NYSE
OpenBook or any other similar products are attractively priced or not.
    Firms that do not wish to purchase NYSE OpenBook at the new prices
have a variety of alternative market data products from which to
choose,\19\ or if NYSE OpenBook does not provide sufficient value to
firms as offered based on the uses those firms have or planned to make
of it, such firms may simply choose to conduct their business
operations in ways that do not use NYSE OpenBook. The Exchange notes
that broker-dealers are not required to purchase proprietary market
data to comply with their best execution obligations.\20\ Similarly,
there is no requirement in Regulation NMS or any other rule that
proprietary data be utilized for order routing decisions, and some
broker-dealers and alternative trading systems (``ATSs'') have chosen
not to do so.\21\
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    \19\ See NASDAQ Rule 7023 (Nasdaq Totalview) and BATS Rule
11.22(a) and (c) (BATS TCP Pitch and Multicast Pitch).
    \20\ See In the Matter of the Application of Securities Industry
And Financial Markets Association For Review of Actions Taken by
Self-Regulatory Organizations, Release Nos. 34-72182; AP-3-15350;
AP-3-15351 (May 16, 2014).
    \21\ For example, Goldman Sachs Execution and Clearing, L.P. has
disclosed that it does not use proprietary market data in connection
with Sigma X, its ATS. See response to Question E3, available at
http://www.goldmansachs.com/media-relations/in-the-news/current/pdf-media/gsec-order-handling-practices-ats-specific.pdf. By way of
comparison, IEX has disclosed that it uses proprietary market data
feeds from all registered stock exchanges and the LavaFlow ECN. See
http://www.iextrading.com/about/.
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    The decision of the United States Court of Appeals for the District
of Columbia Circuit in NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir.
2010), upheld reliance by the Securities and Exchange Commission
(``Commission'') upon the existence of competitive market mechanisms to
set reasonable and equitably allocated fees for proprietary market
data:

    In fact, the legislative history indicates that the Congress
intended that the market system `evolve through the interplay of
competitive forces as unnecessary regulatory restrictions are
removed' and that the SEC wield its regulatory power `in those
situations where competition may not be sufficient,' such as in the
creation of a `consolidated transactional reporting system.'

Id. at 535 (quoting H.R. Rep. No. 94-229 at 92 (1975), as reprinted in
1975 U.S.C.C.A.N. 323). The court agreed with the Commission's
conclusion that ``Congress intended that `competitive forces should
dictate the services and practices that constitute the U.S. national
market system for trading equity securities.' '' \22\

    \22\ NetCoalition, 615 F.3d at 535.
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    As explained below in the Exchange's Statement on Burden on
Competition, the Exchange believes that there is substantial evidence
of competition in the marketplace for proprietary market data and that
the Commission can rely upon such evidence in concluding that the fees
established in this filing are the product of competition and therefore
satisfy the relevant statutory standards. In addition, the existence of
alternatives to these data products, such as consolidated data and
proprietary data from other sources, as described below, further
ensures that the Exchange cannot set unreasonable fees, or fees that
are unreasonably discriminatory, when vendors and subscribers can
select such alternatives.
    As the NetCoalition decision noted, the Commission is not required
to undertake a cost-of-service or ratemaking approach. The Exchange
believes that, even if it were possible as a matter of economic theory,
cost-based pricing for non-core market data would be so complicated
that it could not be done practically or offer any significant
benefits.\23\
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    \23\ The Exchange believes that cost-based pricing would be
impractical because it would create enormous administrative burdens
for all parties and the Commission, to cost-regulate a large number
of participants and standardize and analyze extraordinary amounts of
information, accounts, and reports. In addition, and as described
below, it is impossible to regulate market data prices in isolation
from prices charged by markets for other services that are joint
products. Cost-based rate regulation would also lead to litigation
and may distort incentives, including those to minimize costs and to
innovate, leading to further waste. Under cost-based pricing, the
Commission would be burdened with determining a fair rate of return,
and the industry could experience frequent rate increases based on
escalating expense levels. Even in industries historically subject
to utility regulation, cost-based ratemaking has been discredited.
As such, the Exchange believes that cost-based ratemaking would be
inappropriate for proprietary market data and inconsistent with
Congress's direction that the Commission use its authority to foster
the development of the national market system, and that market
forces will continue to provide appropriate pricing discipline. See
Appendix C to NYSE's comments to the Commission's 2000 Concept
Release on the Regulation of Market Information Fees and Revenues,
which can be found on the Commission's Web site at http://www.sec.gov/rules/concept/s72899/buck1.htm.
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    For these reasons, the Exchange believes that the proposed fees are
reasonable, equitable, and not unfairly discriminatory.

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. An exchange's ability to
price its proprietary market data feed products is constrained by
actual competition for the sale of proprietary market data products,
the joint product nature of exchange platforms, and the existence of
alternatives to the Exchange's proprietary data.
The Existence of Actual Competition
    The market for proprietary data products is currently competitive
and inherently contestable because there is fierce competition for the
inputs necessary for the creation of proprietary data and strict
pricing discipline for the proprietary products themselves. Numerous
exchanges compete with one another for listings and order flow and
sales of market data itself, providing ample opportunities for
entrepreneurs who wish to compete in any or all of those areas,
including producing and distributing their own market data. Proprietary
data products are produced and distributed by each individual exchange,
as well as other entities, in a vigorously competitive market. Indeed,
the U.S. Department of Justice (``DOJ'') (the primary antitrust
regulator) has expressly acknowledged the aggressive actual competition
among exchanges, including for the sale of proprietary market data. In
2011, the DOJ stated that exchanges ``compete head to head to offer
real-time equity data products. These data products include the best
bid and offer of every exchange and information on each equity trade,
including the last sale.'' \24\
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    \24\ Press Release, U.S. Department of Justice, Assistant
Attorney General Christine Varney Holds Conference Call Regarding
NASDAQ OMX Group Inc. and IntercontinentalExchange Inc. Abandoning
Their Bid for NYSE Euronext (May 16, 2011), available at http://www.justice.gov/iso/opa/atr/speeches/2011/at-speech-110516.html; see
also Complaint in U.S. v. Deutsche Borse AG and NYSE Euronext, Case
No. 11-cv-2280 (DC Dist.) ] 24 (``NYSE and Direct Edge compete head-
to-head . . . in the provision of real-time proprietary equity data
products.'').
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    Moreover, competitive markets for listings, order flow, executions,
and transaction reports provide pricing discipline for the inputs of
proprietary data products and therefore constrain markets from
overpricing proprietary market data. Broker-dealers send their order
flow and transaction reports to multiple venues, rather than providing
them all to a single venue, which in turn reinforces this competitive
constraint. As a 2010 Commission Concept Release noted, the ``current
market structure can be described as dispersed and complex'' with
``trading volume . . . dispersed

among many highly automated trading centers that compete for order flow
in the same stocks'' and ``trading centers offer[ing] a wide range of
services that are designed to attract different types of market
participants with varying trading needs.'' \25\ More recently, SEC
Chair Mary Jo White has noted that competition for order flow in
exchange-listed equities is ``intense'' and divided among many trading
venues, including exchanges, more than 40 alternative trading systems,
and more than 250 broker-dealers.\26\
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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. Data
available on ArcaVision show that from June 30, 2013 to June 30,
2014, no exchange traded more than 12% of the volume of listed
stocks by either trade or dollar volume, further evidencing the
continued dispersal of and fierce competition for trading activity.
See https://www.arcavision.com/Arcavision/arcalogin.jsp.
    \26\ Mary Jo White, Enhancing Our Equity Market Structure,
Sandler O'Neill & Partners, L.P. Global Exchange and Brokerage
Conference (June 5, 2014) (available on the Commission Web site),
citing Tuttle, Laura, 2014, ``OTC Trading: Description of Non-ATS
OTC Trading in National Market System Stocks,'' at 7-8.
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    If an exchange succeeds in its competition for quotations, order
flow, and trade executions, then it earns trading revenues and
increases the value of its proprietary market data products because
they will contain greater quote and trade information. Conversely, if
an exchange is less successful in attracting quotes, order flow, and
trade executions, then its market data products may be less desirable
to customers using them in support of order routing and trading
decisions in light of the diminished content; data products offered by
competing venues may become correspondingly more attractive. Thus,
competition for quotations, order flow, and trade executions puts
significant pressure on an exchange to maintain both execution and data
fees at reasonable levels.
    In addition, in the case of products that are also redistributed
through market data vendors, such as Bloomberg and Thompson Reuters,
the vendors themselves provide additional price discipline for
proprietary data products because they control the primary means of
access to certain end users. These vendors impose price discipline
based upon their business models. For example, vendors that assess a
surcharge on data they sell are able to refuse to offer proprietary
products that their end users do not or will not purchase in sufficient
numbers. Vendors will not elect to make available NYSE OpenBook unless
their customers request it, and customers will not elect to pay the
proposed fees unless NYSE OpenBook can provide value by sufficiently
increasing revenues or reducing costs in the customer's business in a
manner that will offset the fees. All of these factors operate as
constraints on pricing proprietary data products.
Joint Product Nature of Exchange Platform
    Transaction execution and proprietary data products are
complementary in that market data is both an input and a byproduct of
the execution service. In fact, proprietary market data and trade
executions are a paradigmatic example of joint products with joint
costs. The decision of whether and on which platform to post an order
will depend on the attributes of the platforms where the order can be
posted, including the execution fees, data availability and quality,
and price and distribution of data products. Without a platform to post
quotations, receive orders, and execute trades, exchange data products
would not exist.
    The costs of producing market data include not only the costs of
the data distribution infrastructure, but also the costs of designing,
maintaining, and operating the exchange's platform for posting quotes,
accepting orders, and executing transactions and the cost of regulating
the exchange to ensure its fair operation and maintain investor
confidence. The total return that a trading platform earns reflects the
revenues it receives from both products and the joint costs it incurs.
    Moreover, an exchange's broker-dealer customers generally view the
costs of transaction executions and market data as a unified cost of
doing business with the exchange. A broker-dealer will only choose to
direct orders to an exchange if the revenue from the transaction
exceeds its cost, including the cost of any market data that the
broker-dealer chooses to buy in support of its order routing and
trading decisions. If the costs of the transaction are not offset by
its value, then the broker-dealer may choose instead not to purchase
the product and trade away from that exchange. There is substantial
evidence of the strong correlation between order flow and market data
purchases. For example, in November 2014 more than 80% of the
transaction volume on each of NYSE and NYSE's affiliates NYSE Arca,
Inc. (``NYSE Arca'') and NYSE MKT LLC (``NYSE MKT'') was executed by
market participants that purchased one or more proprietary market data
products (the 20 firms were not the same for each market). A supra-
competitive increase in the fees for either executions or market data
would create a risk of reducing an exchange's revenues from both
products.
    Other market participants have noted that proprietary market data
and trade executions are joint products of a joint platform and have
common costs.\27\ 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.\28\
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    \27\ See Securities Exchange Act Release No. 72153 (May 12,
2014), 79 FR 28575, 28578 n.15 (May 16, 2014) (SR-NASDAQ-2014-045)
(``[A]ll of the exchange's costs are incurred for the unified
purposes of attracting order flow, executing and/or routing orders,
and generating and selling data about market activity. The total
return that an exchange earns reflects the revenues it receives from
the joint products and the total costs of the joint products.'').
See also Securities Exchange Act Release No. 62907 (Sept. 14, 2010),
75 FR 57314, 57317 (Sept. 20, 2010) (SR-NASDAQ-2010-110), and
Securities Exchange Act Release No. 62908 (Sept. 14, 2010), 75 FR
57321, 57324 (Sept. 20, 2010) (SR-NASDAQ-2010-111).
    \28\ 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 because it is
impossible to obtain the data inputs to create market data products
without a fast, technologically robust, and well-regulated execution
system, and system and regulatory costs affect the price of both
obtaining the market data itself and creating and distributing market
data products. It would be equally misleading, however, to attribute
all of an exchange's costs to the market data portion of an exchange's
joint products.

Rather, all of an exchange's costs are incurred for the unified
purposes of attracting order flow, executing and/or routing orders, and
generating and selling data about market activity. The total return
that an exchange earns reflects the revenues it receives from the joint
products and the total costs of the joint products.
    As noted above, the level of competition and contestability in the
market is evident in the numerous alternative venues that compete for
order flow, including 12 equities self-regulatory organization
(``SRO'') markets, as well as various forms of ATSs, including dark
pools and electronic communication networks (``ECNs''), and
internalizing broker-dealers. SRO markets compete to attract order flow
and produce transaction reports via trade executions, and two FINRA-
regulated Trade Reporting Facilities compete to attract transaction
reports from the non-SRO venues.\29\
---------------------------------------------------------------------------

    \29\ FINRA's Alternative Display Facility also receives over-
the-counter trade reports that it sends to CTA.
---------------------------------------------------------------------------

    Competition among trading platforms can be expected to constrain
the aggregate return that each platform earns from the sale of its
joint products, but different trading platforms may choose from a range
of possible, and equally reasonable, pricing strategies as the means of
recovering total costs. For example, some platforms may choose to pay
rebates to attract orders, charge relatively low prices for market data
products (or provide market data products free of charge), and charge
relatively high prices for accessing posted liquidity. Other platforms
may choose a strategy of paying lower rebates (or no rebates) to
attract orders, setting relatively high prices for market data
products, and setting relatively low prices for accessing posted
liquidity. For example, BATS and Direct Edge, which previously operated
as ATSs and obtained exchange status in 2008 and 2010, respectively,
have provided 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\ Similarly, LavaFlow ECN provides market data to its
subscribers at no charge.\31\ In this environment, there is no economic
basis for regulating maximum prices for one of the joint products in an
industry in which suppliers face competitive constraints with regard to
the joint offering.
---------------------------------------------------------------------------

    \30\ This is simply a securities market-specific example of the
well-established principle that in certain circumstances more sales
at lower margins can be more profitable than fewer sales at higher
margins; this example is additional evidence that market data is an
inherent part of a market's joint platform.
    \31\ See ``LavaFlow--ADF Migration,'' available at https://www.lavatrading.com/news/pdf/LavaFlow_ADF_Migration.pdf.
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Existence of Alternatives
    The large number of SROs, ATSs, and internalizing broker-dealers
that currently produce proprietary data or are currently capable of
producing it provides further pricing discipline for proprietary data
products. Each SRO, ATS, and broker-dealer is currently permitted to
produce and sell proprietary data products, and many currently do 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, internalizing broker-
dealers, and vendors can bypass SROs is significant in two respects.
First, non-SROs can compete directly with SROs for the production and
sale of proprietary data products. By way of example, BATS and NYSE
Arca both published proprietary data on the Internet before registering
as exchanges. Second, because a single order or transaction report can
appear in an SRO proprietary product, a non-SRO proprietary product, or
both, the amount of data available via proprietary products is greater
in size than the actual number of orders and transaction reports that
exist in the marketplace. With respect to NYSE OpenBook, competitors
offer close substitute products.\32\ Because market data users can find
suitable substitutes for most proprietary market data products, a
market that overprices its market data products stands a high risk that
users may substitute another source of market data information for its
own.
---------------------------------------------------------------------------

    \32\ See supra note 19.
---------------------------------------------------------------------------

    Those competitive pressures imposed by available alternatives are
evident in the Exchange's proposed pricing.
    In addition to the competition and price discipline described
above, the market for proprietary data products is also highly
contestable because market entry is rapid and inexpensive. The history
of electronic trading is replete with examples of entrants that swiftly
grew into some of the largest electronic trading platforms and
proprietary data producers: Archipelago, Bloomberg Tradebook, Island,
RediBook, Attain, TrackECN, BATS Trading and Direct Edge. As noted
above, BATS launched as an ATS in 2006 and became an exchange in 2008,
while Direct Edge began operations in 2007 and obtained exchange status
in 2010. As noted above, LavaFlow ECN provides market data to its
subscribers at no charge.\33\
---------------------------------------------------------------------------

    \33\ See supra note 31.
---------------------------------------------------------------------------

    In setting 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 proprietary data from other sources, ensures that
the Exchange cannot set unreasonable fees, or fees that are
unreasonably discriminatory, when vendors and subscribers can elect
these alternatives or choose not to purchase a specific proprietary
data product if the attendant fees are not justified by the returns
that any particular vendor or data recipient would achieve through the
purchase.

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

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

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

    The foregoing rule change is effective upon filing pursuant to
Section 19(b)(3)(A)\34\ of the Act and subparagraph (f)(2) of Rule 19b-
4 \35\ thereunder, because it establishes a due, fee, or other charge
imposed by the Exchange.
---------------------------------------------------------------------------

    \34\ 15 U.S.C. 78s(b)(3)(A).
    \35\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \36\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \36\ 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-2014-76 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSE-2014-76. 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 will also be available
for Web site viewing and printing at the NYSE's principal office and on
its Internet Web site at www.nyse.com. 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-2014-76 and should be submitted on
or before February 5, 2015.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\37\
---------------------------------------------------------------------------

    \37\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Brent J. Fields,
Secretary.
[FR Doc. 2015-00530 Filed 1-14-15; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 88, Number 175 (Tuesday, September 12, 2023)]
[Notices]
[Page 62565]
[FR Doc No: 2023-19654]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 6896-079]

Hypower, Inc.; Hypower, LLC; Notice of Application of Transfer of
License and Soliciting Comments, Motions To Intervene, and Protests

    On August 11, 2023, Hypower, Inc., (transferor) filed an
application for a transfer of license of the 14.5-megawatt Forks of
Butte Project No. 6896.\1\ The project is located on Butte Creek, near
the towns of Paradise and Magalia, in Butte County, California. The
project occupies federal lands administered by the Bureau of Land
Management.
---------------------------------------------------------------------------

    \1\ Energy Growth Group, Butte Creek, Improvement Company,
Energy Growth Partnership, and County of Butter, 37 FERC ] 62,276
(1986). Subsequently, on July 1, 1998, the project was transferred
to Hypower, Inc.
---------------------------------------------------------------------------

    The applicant seeks Commission approval to convert the license for
the Forks of Butte Project from Hypower, Inc., to a limited liability
company (Hypower, LLC or transferee). The transferee will be required
by the Commission to comply with all the requirements of the license as
though it were the original licensee.
    Applicant Contact: Wayne Rogers, Hypower, Inc., c/o Synergics
Energy Services, LLC, 191 Main Street # 3, Annapolis, MD 21401, Phone:
410-268-8820, Email: [email protected]; and
    Shannon E. O'Neil, Derek D. Green, Davis Wright Tremaine LLP, Suite
500 East, 1301 K Street NW, Washington, DC 20005-3317, Phone: 202-973-
4209, and<PHONE_NUMBER>, Email: [email protected] and
[email protected].
    FERC Contact: Anumzziatta Purchiaroni, Phone:<PHONE_NUMBER>,
Email: [email protected].
    Deadline for filing comments, motions to intervene, and protests:
30 days from the date that the Commission issues this notice. The
Commission strongly encourages electronic filing. Please file comments,
motions to intervene, and protests using the Commission's eFiling
system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can
submit brief comments up to 6,000 characters, without prior
registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information
at the end of your comments. For assistance, please contact FERC Online
Support at [email protected],<PHONE_NUMBER> (toll free), or
(202) 502-8659 (TTY).
    In lieu of electronic filing, you may submit a paper copy.
Submissions sent via U.S. Postal Service must be addressed to, Kimberly
D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First
Street NE, Room 1A, Washington, DC 20426. Submissions sent via any
other carrier must be addressed to, Kimberly D. Bose, Secretary,
Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville,
Maryland 20852. The first page of any filing should include docket
number P-6896-079. Comments emailed to Commission staff are not
considered part of the Commission record.
    The Commission's Office of Public Participation (OPP) supports
meaningful public engagement and participation in Commission
proceedings. OPP can help members of the public, including landowners,
environmental justice communities, Tribal members and others, access
publicly available information and navigate Commission processes. For
public inquiries and assistance with making filings such as
interventions, comments, or requests for rehearing, the public is
encouraged to contact OPP at<PHONE_NUMBER> or [email protected].

    Dated: September 6, 2023.
Kimberly D. Bose,
Secretary.
[FR Doc. 2023-19654 Filed 9-11-23; 8:45 am]
BILLING CODE 6717-01-P