A P P E N D I X B B 1 APPENDIX B Management Conference Structure Peconic Estuary Program CCMP A P P E N D I X B B 2 This Page Intentionally Left Blank. Peconic Estuary Program CCMP A P P E N D I X B B 3 MANAGEMENT CONFERENCE STRUCTURE The structure of the Peconic Estuary Program Management Conference is presented in Figure 10 1. This structure is initially developed during the nomination process by representatives of EPA Region II, New York State, and Suffolk County, in cooperation with local government officials and members of the BTCAMP Citizens Advisory Committee. The Management Conference consists of Policy and Management Committees, and three advisory committees: the Citizens Advisory Committee, Technical Advisory Committee ( TAC), and Local Government Committee ( LGC). These committees provide the framework in which the Management Conference will meet the goals of this program. They represent a forum for open discussion, cooperation, and compromise that results in consensus. While these committees function as separate entities, they are not meant to be exclusive. Thus, all committee meetings are open to the public. In addition, communication between committees exists in the form of members that serve on more than one committee and Federal, State, and county representatives who will be attending all Management Conference meetings. The roles and responsibilities of each of the committees, as well as charges to them, are summarized below.

POLICY COMMITTEE The Policy Committee consists of representatives from EPA, NYSDEC, Suffolk County, and local government. Currently, the representatives are the EPA Director of the Division of Environmental Planning and Protection, Regional Director of the New York State Department of Environmental Conservation, the Suffolk County Executive, an agreed upon representative of local government who at the time of the preparation of this document was the Supervisor of the Town of Southold. The Policy Committee approves the workplan and budgets, approves Action Plans and the Comprehensive Conservation and Management Plan, and resolves policy issues, including those identified by the Management Committee.

MANAGEMENT COMMITTEE The roles and responsibilities of the Management Committee are to recommend the workplans, budgets, Action Plans, and the Comprehensive Conservation and Management Plan to the Policy Committee. On behalf of the Policy Committee, the Management Committee manages the Peconic Estuary Program, ensuring the commitments and deadlines are met. The Management Committee also coordinates the effective involvement of the advisory committees.

Committees within the Peconic Estuary Program strive for consensus. However, if a Management Committee vote needs to be taken, representatives from EPA, NYSDEC, Suffolk County ( currently represented the Office of the Suffolk County Executive), the Local Government Committee ( currently represented by the Southold Town Supervisor), and the chairs of the Citizens and Technical Advisory committees will be eligible to vote.

Including both voting and non voting members, the Management Committee representation currently consists of representatives of EPA Region II ( Environmental Planning & Protection Division), the National Oceanic and Atmospheric Administration, the U. S. Fish and Wildlife Service ( USFWS), NYSDEC Division of Marine Resources, New York State Department of State ( NYSDOS) ( Division of Coastal Resources and Waterfront Revitalization), New York State Department of Transportation Peconic Estuary Program CCMP A P P E N D I X B B 4 ( NYSDOT), the Town of Southold ( representing local government), a representative of the New York State Legislature, and the chairs of the Citizens and Technical Advisory Committees.

LOCAL GOVERNMENT COMMITTEE The Local Government Committee ( LGC) consists of representatives from the five East End Towns surrounding the Peconic Bay ( Southhold, Riverhead, Southampton, East Hampton, Shelter Island), the Town of Broookhaven, which is not directly on the shores of the marine system but is located within its watershed and includes portions of the Peconic River, the eight villages surrounding Peconic Bay ( Quogue, Dering Harbor, Sag Harbor, North Haven, Southampton, Westhampton Beach, Greenport, East Hampton), and the Trustees of Freeholder Commonalities ( East Hampton, Southold, Southampton).

The charges to the LGC, in addition to providing input into the Conference Agreement, the annual workplan, and CCMP, are to develop and oversee the implementation of the local government outreach component of the workplan. The Local Government committee is crucial because local governments have ultimate responsibility over land use, zoning, and other local issues.

TECHNICAL ADVISORY COMMITTEE The Technical Advisory Committee consists of representatives from universities, the Federal government ( EPA, USFWS, USFDA), New York State ( NYSDEC, NYSDOS, NYSDOT), Suffolk County ( Office of the County Executive, SCDHS, Suffolk County Planning Department, Soil and Water Conservation District), local government planning and environmental agencies, and other entities dealing in technical issues. New members with specific expertise are asked to join the TAC as pertinent issues arise. In addition to providing input into the Conference Agreement and the annual workplans, the TAC meets the needs of the Management Conference including recommending the addition of the members as appropriate. The TAC also develops the research agenda that supports the CCMP in the form of both a comprehensive agenda unconstrained by availability of funds and a priority ranking of potential projects. In addition, the TAC assists in the development of public outreach/ education components of the PEP.

CITIZENS ADVISORY COMMITTEE The Citizens Advisory Committee ( CAC) consists of members of the public that have an interest in preserving and protecting Peconic Bay. The CAC, as an autonomous group, initially divided into ten focus groups, into which each member of the committee fits based on their interests. These focus groups are commercial fishers, marina and related industries, recreational fishermen, environmental/ ecology, recreation, agriculture, macroeconomics, education, commerce/ business, and civic organizations and members at large. Additional individuals may join the CAC by requesting placement in the appropriate focus group.

In addition to providing input into the Conference Agreement and the annual workplans, the CAC develops and oversees implementation for the public involvement and education component of the workplans. The CAC also develops a Citizens Action Plan for inclusion in the overall Action Plan and the CCMP. Peconic Estuary Program CCMP A P P E N D I X B B 5 PROGRAM OFFICE The Program Office roles and responsibilities are outlined as follows:

Management Responsibilities   Communicates regularly with all PEP participants about activities and issues to ensure consensus and that all views are fairly represented in work products;

  Coordinates activities among Federal, State, county, and local agencies as well as the public sector to obtain program objectives;

  Participates in inter agency work groups;

  Manages the preparation of annual workplans, the CCMP, and budgets, in cooperation with all PEP participants; and   Coordinates conference activities in identifying and seeking alternative sources of funding for activities associated with Peconic Bay.

Technical Responsibilities   Manages the planning, development, and implementation of all phases of the PEP using knowledge of marine and estuarine environmental systems related to scientific/ engineering operations, and programmatic issues;

  Coordinates the compilation of findings of other estuary programs and transmits them to the PEP Management Conference; and   Identifies, participates in, and ensures the transfer of scientific/ engineering information to Program participants.

Program Administration   Provides administrative support to the Management Conference;

  Manages development of Requests for Proposals for tasks identified in the annual workplan among all involved agencies and advisory committees;

  Oversees the administration and performance of contract and grant activities to ensure quality products are produced on time and within budget;

  Facilitates the convening of conferences and meetings for local and State officials and legislators to brief them on CCMP development and PEP progress in coordination with other Conference participants; and   Prepares PEP status reports, as needed, and coordinates review with all PEP participants.

Administrative Support Responsibilities   Attends meetings of major committees ( not limited to the technical, local, citizens, management and policy committees);

  Manages preparation of all PEP work products, including data summaries, annual reports, technical reports, CAC products, and modeling activities, for content and accuracy before publication; Peconic Estuary Program CCMP A P P E N D I X B B 6   Ensures the transfer all PEP materials ( e. g., work products, annual reports, meeting minutes, etc.) to the appropriate persons and locations ( e. g., Management Conference participants, the public, local libraries, etc.); and   Receives and responds to requests for technical information and assistance regarding the PEP from the public, elected officials, EPA Headquarters, and others.


[Federal Register: January 10, 2008 (Volume 73, Number 7)]
[Notices]
[Page 1875]
[DOCID:fr10ja08-46]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

 [Docket No. EL08-26-000]

City of Riverside, CA; Notice of Filing

December 31, 2007.
    Take notice that on December 21, 2007, the City of Riverside,
California filed its fifth annual revision to its Transmission Revenue
Balancing Account Adjustment, to become effective January 1, 2008.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211, 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed on or before the comment date. On or
before the comment date, it is not necessary to serve motions to
intervene or protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov.
 Persons unable to file electronically should submit an

original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the

``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.
    Comment Date: 5 p.m. Eastern Time on January 22, 2008.

Kimberly D. Bose,
Secretary.
 [FR Doc. E8-234 Filed 1-9-08; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 80, Number 134 (Tuesday, July 14, 2015)]
[Notices]
[Page 41030]
[FR Doc No: 2015-17223]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 2464-000]

Gresham Municipal Utilities; Notice Of Authorization for
Continued Project Operation

    On June 10, 2013 Gresham Municipal Utilities, licensee for the Weed
Dam Hydroelectric Project, filed an Application for a New License
pursuant to the Federal Power Act (FPA) and the Commission's
regulations thereunder. The Weed Dam Hydroelectric Project is located
on Red River, in Shawano County, Wisconsin.
    The license for Project No. 2464 was issued for a period ending
June 30, 2015. Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1),
requires the Commission, at the expiration of a license term, to issue
from year-to-year an annual license to the then licensee under the
terms and conditions of the prior license until a new license is
issued, or the project is otherwise disposed of as provided in section
15 or any other applicable section of the FPA. If the project's prior
license waived the applicability of section 15 of the FPA, then, based
on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c),
and as set forth at 18 CFR 16.21(a), if the licensee of such project
has filed an application for a subsequent license, the licensee may
continue to operate the project in accordance with the terms and
conditions of the license after the minor or minor part license
expires, until the Commission acts on its application. If the licensee
of such a project has not filed an application for a subsequent
license, then it may be required, pursuant to 18 CFR 16.21(b), to
continue project operations until the Commission issues someone else a
license for the project or otherwise orders disposition of the project.
    If the project is subject to section 15 of the FPA, notice is
hereby given that an annual license for Project No. 2464 is issued to
the licensee for a period effective July 1, 2015 through June 30, 2016
or until the issuance of a new license for the project or other
disposition under the FPA, whichever comes first. If issuance of a new
license (or other disposition) does not take place on or before June
30, 2016, notice is hereby given that, pursuant to 18 CFR 16.18(c), an
annual license under section 15(a)(1) of the FPA is renewed
automatically without further order or notice by the Commission, unless
the Commission orders otherwise.
    If the project is not subject to section 15 of the FPA, notice is
hereby given that the licensee, Gresham Municipal Utilities, is
authorized to continue operation of the Weed Dam Hydroelectric Project,
until such time as the Commission acts on its application for a
subsequent license.

    Dated: July 8, 2015.
Kimberly D. Bose,
Secretary.
[FR Doc. 2015-17223 Filed 7-13-15; 8:45 am]
 BILLING CODE 6717-01-P


[Federal Register Volume 87, Number 54 (Monday, March 21, 2022)]
[Proposed Rules]
[Pages 15905-15907]
[FR Doc No: 2022-05481]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2022-0215; Airspace Docket No. 19-AAL-61]
RIN 2120-AA66

Proposed Amendment of United States Area Navigation (RNAV) Route
T-228; Cape Newenham, AK

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This action proposes to amend United States Area Navigation
(RNAV) route T-228 in the vicinity of Cape Newenham, AK in support of a
large and comprehensive T-route modernization project for the state of
Alaska.

DATES: Comments must be received on or before May 5, 2022.

ADDRESSES: Send comments on this proposal to the U.S. Department of
Transportation, Docket Operations, 1200 New Jersey Avenue SE, West
Building Ground Floor, Room W12-140, Washington, DC 20590; telephone:
(800) 647-5527, or<PHONE_NUMBER>. You must identify FAA Docket No.
FAA-2022-0215; Airspace Docket No. 19-AAL-61 at the beginning of your
comments. You may also submit comments through the internet at https://www.regulations.gov.
    FAA Order JO 7400.11F, Airspace Designations and Reporting Points,
and subsequent amendments can be viewed online at https://www.faa.gov/air_traffic/publications/. For further information, you can contact the
Rules and Regulations Group, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
8783.

FOR FURTHER INFORMATION CONTACT: Christopher McMullin, Rules and
Regulations Group, Office of Policy, Federal Aviation Administration,
800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
8783.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority. This rulemaking is promulgated under the authority described
in Subtitle VII, Part A, Subpart I, Section 40103. Under that section,
the FAA is charged with prescribing regulations to assign the use of
the airspace necessary to ensure the safety of aircraft and the
efficient use of airspace. This regulation is within the scope of that
authority as it would expand the availability of RNAV in Alaska and
improve the efficient flow of air traffic within the National Airspace
System (NAS) by lessoning the dependency on ground based navigation.

Comments Invited

    Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
    Communications should identify both docket numbers (FAA Docket No.
FAA-2022-0215; Airspace Docket No. 19-AAL-61) and be submitted in
triplicate to the Docket Management Facility (see ADDRESSES section for
address and phone number). You may also submit comments through the
internet at https://www.regulations.gov.
    Commenters wishing the FAA to acknowledge receipt of their comments
on this action must submit with those comments a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to FAA Docket No. FAA-2022-0215; Airspace Docket No. 19-AAL-61.'' The
postcard will be date/time stamped and returned to the commenter.
    All communications received on or before the specified comment
closing date will be considered before taking action on the proposed
rule. The proposal contained in this action may be changed in light of
comments received. All comments submitted will be available for
examination in the public docket both before and after the comment
closing date. A report summarizing each substantive public contact with
FAA personnel concerned with this rulemaking will be filed in the
docket.

Availability of NPRM

    An electronic copy of this document may be downloaded through the
internet at https://www.regulations.gov. Recently published rulemaking
documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.
    You may review the public docket containing the proposal, any
comments received and any final disposition in person in the Dockets
Office (see ADDRESSES section for address and phone number) between
9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal
holidays. An informal docket may also be examined during normal
business hours at the office of the Western Service Center, Operations
Support Group, Federal Aviation Administration, 2200 South 216th St.,
Des Moines, WA 98198.

Availability and Summary of Documents for Incorporation by Reference

    This document proposes to amend FAA Order JO 7400.11F, Airspace
Designations and Reporting Points, dated August 10, 2021, and effective
September 15, 2021. FAA Order JO 7400.11F is publicly available as
listed in the ADDRESSES section of this document. FAA Order JO 7400.11F
lists Class A, B, C, D, and E airspace areas, air traffic service
routes, and reporting points.

Background

    In 2003, Congress enacted the Vision 100--Century of Aviation
Reauthorization Act (Pub. L. 108-176), which established a joint
planning and development office in the FAA to manage the work related
to the Next Generation Air Transportation System (NextGen). Today,
NextGen is an ongoing FAA-led modernization of the nation's air
transportation system to make flying safer, more efficient, and more
predictable.
    In support of NextGen, this proposal is part of a larger and
comprehensive T-route modernization project in the state of Alaska. The
project mission statement states: ``To modernize Alaska's Air Traffic
Service route structure using satellite based navigation Development of
new T-routes and optimization of existing T-routes will enhance safety,
increase efficiency and access, and will provide enroute continuity
that is not subject to the restrictions associated with ground based
airway navigation.'' As part of this project, the FAA evaluated the
existing Colored airway structure for: (a) Direct replacement (i.e.,
overlay) with a T-route that offers a similar or lower Minimum Enroute
Altitude (MEA) or Global Navigation Satellite System Minimum Enroute
Altitude (GNSS MEA); (b) the replacement of the Colored airway with a
T-route in an optimized but similar geographic area, while retaining
similar or lower MEA; or (c) removal with no route structure (T-route)
restored in that area because the value was determined to be
insignificant.
    The aviation industry/users have indicated a desire for the FAA to
transition the Alaskan en route navigation structure away from
dependency on Non-Directional Beacons (NDB), and move to develop and
improve the RNAV route structure. To ensure proper connectivity to
associated routes, the FAA has been developing waypoints (WP) to allow
a smoother transition between airways. Due to the pending
decommissioning of the Cape Newenham, AK, (EHM) and the Shishmaref, AK,
(SHH) NDBs, the FAA is proposing to provide WPs in their place. ZINKI,
AK, WP would replace EHM and HIPIV, AK, WP would replace SHH.

The Proposal

    The FAA is proposing an amendment to 14 CFR part 71 to amend RNAV
route T-228 in the vicinity of Cape Newenham, AK in support of a large
and comprehensive T-route modernization project for the state of
Alaska. The proposed amendment is described below.
    T-228: The FAA proposes to update the legal description contained
in FAA Order JO 7400.11 by replacing the Cape Newenham, AK, (EHM), NDB
with the ZINKI, AK, WP and the Shishmaref, AK, (SHH), NDB with the
HIPIV, AK, WP due to their pending decommissioning. This proposal would
also correct the legal description by removing the HIKAX, AK, WP, since
it is not considered a turn point. The rest of the route would remain
unchanged.
    United States Area Navigation Routes are published in paragraph
6011 of FAA Order JO 7400.11F dated August 10, 2021 and effective
September 15, 2021, which is incorporated by reference in 14 CFR 71.1.
The RNAV route listed in this document would be published subsequently
in FAA Order JO 7400.11.
    FAA Order JO 7400.11, Airspace Designations and Reporting Points,
is published yearly and effective on September 15.

Regulatory Notices and Analyses

    The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore: (1) Is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under
Department of Transportation (DOT) Regulatory Policies and Procedures
(44 FR 11034; February 26, 1979); and (3) does not warrant preparation
of a regulatory evaluation as the anticipated impact is so minimal.
Since this is a routine matter that will only affect air traffic
procedures and air navigation, it is certified that this proposed rule,
when promulgated, will not have a significant economic impact on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act.

Environmental Review

    This proposal will be subject to an environmental analysis in
accordance with FAA Order 1050.1F, ``Environmental Impacts: Policies
and Procedures'' prior to any FAA final regulatory action.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

0
1. The authority citation for 14 CFR part 71 continues to read as
follows:

    Authority: 49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O.
10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1   [Amended]

0
2. The incorporation by reference in 14 CFR 71.1 of FAA Order JO
7400.11F, Airspace Designations and Reporting Points, dated August 10,
2021, and effective September 15, 2021, is amended as follows:

Paragraph 6011 United States Area Navigation Routes.

* * * * *

T-228 ZINKI, AK to ROCES, AK [Amended]

ZIKNI, AK                                       WP                             (Lat. 58[deg]39'21.68'' N, long. 162[deg]04'13.87'' W)
RUFVY, AK                                       WP                             (Lat. 59[deg]56'34.16'' N, long. 164[deg]02'03.72'' W)
Hooper Bay, AK (HPB)                            VOR/DME                        (Lat. 61[deg]30'51.65'' N, long. 166[deg]08'04.13'' W)
Nome, AK (OME)                                  VOR/DME                        (Lat. 64[deg]29'06.39'' N, long. 165[deg]15'11.43'' W)
HIPIV, AK                                       WP                             (Lat. 66[deg]15'29.11'' N, long. 166[deg]03'23.59'' W)
ECIPI, AK                                       WP                             (Lat. 67[deg]55'48.11'' N, long. 165[deg]29'58.07'' W)
Barrow, AK (BRW)                                VOR/DME                        (Lat. 71[deg]16'24.33'' N, long. 156[deg]47'17.22'' W)
Deadhorse, AK (SCC)                             VOR/DME                        (Lat. 70[deg]11'57.11'' N, long. 148[deg]24'58.17'' W)
ROCES, AK                                       WP                             (Lat. 70[deg]08'34.29'' N, long. 144[deg]08'15.59'' W)

* * * * *

    Issued in Washington, DC, on March 10, 2022.
Scott M. Rosenbloom,
Manager, Airspace Rules and Regulations.
[FR Doc. 2022-05481 Filed 3-18-22; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 86, Number 91 (Thursday, May 13, 2021)]
[Notices]
[Pages 26224-26225]
[FR Doc No: 2021-10091]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2021-N-0352]

Intent To Prepare an Environmental Impact Statement for Certain
Sunscreen Drug Products for Over-the-Counter Use

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice of intent.

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SUMMARY: Under the National Environmental Policy Act of 1969 (NEPA), as
implemented by the Council on Environmental Quality (CEQ) regulations,
the Food and Drug Administration (FDA or Agency) announces its intent
to prepare an environmental impact statement (EIS) to evaluate the
potential environmental effects of revised conditions for marketing
certain sunscreen products for over-the-counter (OTC) use without prior
approval of a new drug application (NDA). By this notice, FDA is
announcing the beginning of the scoping process to solicit public
comments and identify issues to be analyzed in this EIS.

DATES: This notice initiates the public scoping process that will close
on June 14, 2021. FDA will consider comments in response to this notice
to determine the need for any public scoping meetings prior to the
preparation of a draft EIS. In order to be considered during the
preparation of the draft EIS, all comments must be received prior to
the close of the public scoping period. FDA anticipates that if any
public scoping meetings are necessary, due to the impact of this COVID-
19 pandemic, such meetings will be held virtually via a live webcast.
See FDA's website for periodic updates, available at https://www.fda.gov/drugs/guidance-compliance-regulatory-information and search
for Environmental Impact Statement. FDA will provide additional
opportunities for public participation upon publication of the draft
EIS.

ADDRESSES: You may submit comments, identified by the above docket
number by any of the following methods:

Electronic Submissions

    Submit electronic comments in the following way:
     Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments. Comments submitted
electronically, including attachments, to https://www.regulations.gov
will be posted to the docket unchanged. Because your comment will be
made public, you are solely responsible for ensuring that your comment
does not include any confidential information that you or a third party
may not wish to be posted, such as medical information, your or anyone
else's Social Security number, or confidential business information,
such as a manufacturing process. Please note that if you include your
name, contact information, or other information that identifies you in
the body of your comments, that information will be posted on https://www.regulations.gov.
     If you want to submit a comment with confidential
information that you do not wish to be made available to the public,
submit the comment as a written/paper submission and in the manner
detailed (see ``Written/Paper Submissions'' and ``Instructions'').

Written/Paper Submissions

    Submit written/paper submissions as follows:
     Mail/Hand Delivery/Courier (for written/paper
submissions): Dockets Management Staff (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
     For written/paper comments submitted to the Dockets
Management Staff, FDA will post your comment, as well as any
attachments, except for information submitted, marked and identified,
as confidential, if submitted as detailed in ``Instructions.''
    Instructions: All submissions received must include the Docket No.
FDA-2021-N-0352 for ``Intent to Prepare an Environmental Impact
Statement for Certain Sunscreen Drug Products for Over-The-Counter
Use.'' Received comments will be placed in the docket and, except for
those submitted as ``Confidential Submissions,'' publicly viewable at
https://www.regulations.gov or at the Dockets Management Staff between
9 a.m. and 4 p.m., Monday through Friday,<PHONE_NUMBER>.
     Confidential Submissions--To submit a comment with
confidential information that you do not wish to be made publicly
available, submit your comments only as a written/paper submission. You
should submit two copies total. One copy will include the information
you claim to be confidential with a heading or cover note that states
``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' The Agency will
review this copy, including the claimed confidential information, in
its consideration of comments. The second copy, which will have the
claimed confidential information redacted/blacked out, will be
available for public viewing and posted on https://www.regulations.gov.
Submit both copies to the Dockets Management Staff. If you do not wish
your name and contact information to be made publicly available, you
can provide this information on the cover sheet and not in the body of
your comments and you must identify this information as
``confidential.'' Any information marked as ``confidential'' will not
be disclosed except in accordance with 21 CFR 10.20 and other
applicable disclosure law. For more information about FDA's posting of
comments to public dockets, see 80 FR 56469, September 18, 2015, or
access the information at: https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23389.pdf.
    Docket: For access to the docket to read background documents or
the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in
the heading of this document, into the ``Search'' box and follow the
prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane,
Rm. 1061, Rockville, MD 20852,<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Trang Q. Tran, Center for Drug
Evaluation and Research, Food and Drug Administration, 10903 New
Hampshire Ave., Bldg. 22, Rm. 4139, Silver Spring, MD 20993; 240-402-
7945.

SUPPLEMENTARY INFORMATION: Sunscreens are topically applied OTC drug
products indicated to help prevent sunburn and/or to decrease the risk
of skin cancer and early skin aging caused by the sun. FDA regulates
sunscreen products to ensure they meet safety and effectiveness
standards.\1\ Under the Coronavirus Aid, Relief, and Economic Security
(CARES) Act, signed into law on March 27, 2020, FDA is required to
issue a proposed order addressing sunscreens by September 27, 2021.
While the CARES Act does not establish a deadline for the final
sunscreen order, it specifies that this order may not go into effect
earlier than 1 year after its issuance. FDA expects that the final
sunscreen order will establish revised conditions for marketing a
sunscreen product without the prior approval of an NDA, and that among
the conditions addressed will be the permissibility of including
certain active ingredients in sunscreen products marketed without an
NDA.
---------------------------------------------------------------------------

    \1\ Learn more about the history of FDA's regulation of
sunscreen products at https://www.fda.gov/drugs/status-otc-rulemakings/rulemaking-history-otc-sunscreen-drug-products.
---------------------------------------------------------------------------

    Before engaging in a major Federal action, NEPA requires Federal
agencies to consider the potential environmental

consequences of proposed actions, and any reasonable alternatives.
Under FDA regulations, FDA will prepare an EIS when data or information
in an environmental assessment or otherwise available to the Agency
leads to a finding that the proposed agency action may significantly
affect the quality of the human environment.\2\ Because of questions
raised about the extent to which two sunscreen active ingredients
(oxybenzone and octinoxate) may affect coral and/or coral reefs, FDA is
initiating the public scoping process to consider any potential
environmental impacts associated with the use of oxybenzone and
octinoxate in sunscreens so that an EIS, if necessary, can be completed
prior to issuance of a final sunscreen order addressing sunscreens
containing these ingredients.
---------------------------------------------------------------------------

    \2\ See 21 CFR 25.22(b); 40 CFR 1508.27.
---------------------------------------------------------------------------

    We note the Agency's docket to the 2019 proposed rule ``Sunscreen
Drug Products for Over-the-Counter Human Use'' (84 FR 6204 February 26,
2019) received comments that raised concerns about the potential
impacts from sunscreens containing oxybenzone or octinoxate on coral
and/or coral reefs. FDA is also aware that the National Oceanic and
Atmospheric Administration (NOAA) Coral Reef Conservation Program is
currently evaluating research related to coral reef health, including
the potential impacts of sunscreen products that include oxybenzone and
octinoxate on coral reefs and other aquatic systems.\3\ The Agency is
also aware that at least one state has restricted the sale of
sunscreens that include the active ingredients oxybenzone or
octinoxate. On July 3, 2018, the state of Hawaii signed into law S.
2571, Act 104, prohibiting the sale, offer of sale, and distribution of
sunscreens that contain oxybenzone and/or octinoxate, to protect
Hawaii's marine ecosystems, including coral reefs. This law became
effective January 1, 2021. All of these actions raise questions about
the potential environmental impacts of sunscreens containing oxybenzone
and/or octinoxate on coral and/or coral reefs that warrant further
evaluations.
---------------------------------------------------------------------------

    \3\ See NOAA's Coral Reef Information article ``The effects of
ultraviolet filters and sunscreen on corals and aquatic
ecosystems,'' available at the NOAA web page https://www.coris.noaa.gov/activities/effects-ultraviolet-filters-sunscreen-corals/welcome.html.
---------------------------------------------------------------------------

    The purpose of the public scoping process is to determine relevant
issues that will influence the scope of the environmental analysis,
including potential alternatives and the extent to which those issues
and impacts will be analyzed. At this initial stage of the scoping
process, we have identified the following four alternatives: (1) FDA
will conclude that the inclusion of oxybenzone and octinoxate in
sunscreens marketed without an NDA is impermissible; (2) FDA will
conclude that the inclusion of oxybenzone and octinoxate in sunscreens
marketed without an NDA is permissible; (3) FDA will conclude that
inclusion of oxybenzone in sunscreens marketed without an NDA is
permissible but that the inclusion of octinoxate in sunscreens marketed
without an NDA is impermissible; or (4) FDA will conclude that
inclusion of octinoxate in sunscreens marketed without an NDA is
permissible but that the inclusion of oxybenzone in sunscreens marketed
without an NDA is impermissible.
    The EIS will be prepared in accordance with section 102(2)(C) of
NEPA, 42 U.S.C. 4332(2)(C), FDA's NEPA implementing regulations (21 CFR
part 25), and the CEQ regulations for implementing NEPA (40 CFR parts
1500-1508).\4\ Federal, State, and local agencies, along with Tribes
and other stakeholders that may be interested in or affected by the
sunscreen proposed order are invited to participate in the scoping
process. Some Federal agencies may request or be requested by the FDA
to participate in the development of the environmental analysis as a
cooperating agency. FDA encourages other stakeholders to comment on
this scoping process, on what specific issues, alternatives, mitigation
measures, or other information FDA should include for further analysis
in the EIS.
---------------------------------------------------------------------------

    \4\ FDA began activities relating to the environmental
assessment of the use of oxybenzone and octinoxate in sunscreens
marketed without an NDA before September 14, 2020. Consistent with
40 CFR 1506.13, FDA will apply the regulations in place prior to
implementation of the new CEQ regulations. See the Council on
Environmental Quality's final rule, ``Update to the Regulations
Implementing the Procedural Provisions of the National Environmental
Policy Act'' (40 CFR 1506.13, 85 FR 43304 at 43372 (July 16, 2020)).

    Dated: May 7, 2021.
Lauren K. Roth,
Acting Principal Associate Commissioner for Policy.
[FR Doc. 2021-10091 Filed 5-12-21; 8:45 am]
BILLING CODE 4164-01-P


[Federal Register: June 3, 2010 (Volume 75, Number 106)]
[Notices]
[Page 31500-31505]
[DOCID:fr03jn10-104]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-62187; File No. SR-NYSEAmex-2010-35]

Self-Regulatory Organizations; NYSE Amex LLC; Order Approving
Proposed Rule Change To Establish NYSE Amex Trades and NYSE Amex BBO
Services and Related Fees

May 27, 2010.

I. Introduction

    On April 1, 2010, the NYSE Amex LLC (``NYSE Amex'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to establish two NYSE Amex market data products,
NYSE Amex Trades and NYSE Amex BBO and to establish market data fees
for the same. The proposed rule change was published for comment in the
Federal Register on April 22, 2010.\3\ The Commission received no
comment letters on the proposal. This order approves the proposed rule
change.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 61936 (April 16,
2010), 75 FR 21088.

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II. Description of the Proposal

a. Services

    The NYSE Amex Trades service is a NYSE Amex-only market data
service that allows a vendor to redistribute on a real-time basis the
same last sale information that NYSE Amex reports under the CTA Plan
and the Reporting Plan for Nasdaq/National Market System Securities
Traded on an Exchange on an Unlisted or Listed Basis (the ``Nasdaq/UTP
Plan'') for inclusion in those Plans' consolidated data streams and
certain other related data elements (``NYSE Amex Last Sale
Information''). NYSE Amex Last Sale Information would include last sale
information for all securities that are traded on the Exchange and for
which NYSE Amex reports quotes under the CTA Plan or the Nasdaq/UTP
Plan. In addition, NYSE Amex Last Sale Information will also include a
unique sequence number to each trade that allows an investor to track
the context of the trade through other Exchange market data products
such as NYSE Amex OpenBook[supreg]. The Exchange will make NYSE Amex
Trades available over a single datafeed, regardless of the markets on
which the securities are listed.
    NYSE Amex BBO is a NYSE Amex-only market data service that allows a
vendor to redistribute on a real-time basis the same best-bid-and-offer
information that NYSE Amex reports under the CQ Plan and the Nasdaq/UTP
Plan for inclusion in the NYSE Amex BBO Information. NYSE Amex BBO
Information would include the best bids and offers for all securities
that are traded on the Exchange and for which NYSE Amex reports quotes
under the CQ Plan or the Nasdaq/UTP Plan. The Exchange will make NYSE
Amex BBO available over a single datafeed, regardless of the markets on
which the securities are listed.
    Both NYSE Amex Trades and NYSE Amex BBO (collectively, ``NYSE Amex
Market Data'') would allow vendors, broker-dealers, private network
providers and other entities (``NYSE Amex-Only Vendors'') to make NYSE
Amex Last Sale Information and NYSE Amex BBO Information available on a
real-time basis. NYSE Amex-Only Vendors may distribute the NYSE Amex
Trade and NYSE BBO to both professional and nonprofessional
subscribers.
    The Exchange would make NYSE Amex Last Sale Information available
through NYSE Amex Trades no earlier than it provides last sale
information to the processors under the CTA Plan and Nasdaq/UTP Plan,
as appropriate. The Exchange would make NYSE Amex BBO Information
available through NYSE Amex BBO no earlier than it makes that
information available to the processors under the CQ Plan and the
Nasdaq/UTP Plan.

b. Fees

i. Access Fee
    For the receipt of access to the NYSE Amex Trades and NYSE Amex
BBO, the Exchange proposes to charge $750 per month. One $750 monthly
access fee entitles an NYSE Amex-Only Vendor to receive NYSE Amex
Trades and NYSE Amex BBO. The fee applies to receipt of NYSE Amex
Market Data within the NYSE Amex-Only Vendor's organization or outside
of it.
ii. Professional Subscriber Fees
    For the receipt and use of NYSE Amex Trades, the Exchange proposes
to charge $10 per month per professional subscriber device. Similarly,
for the receipt and use of NYSE Amex BBO, the Exchange proposes to
charge $10 per month per professional subscriber device.
    For both NYSE Amex Trades and NYSE Amex BBO, the Exchange proposes
to offer an alternative methodology to the traditional device fee.
Instead of charging $10 per month per device, it proposes to offer NYSE
Amex-Only Vendors the option of paying $10 per month per ``Subscriber
Entitlement.'' The fee entitles the end-user to receive and use NYSE
Amex Market Data relating to all securities traded on NYSE Amex,
regardless of the market on which a security is listed. For the purpose
of calculating Subscriber Entitlements, the Exchange proposes to adopt
a unit-of-count methodology that is the same as that approved by the
Commission earlier this year with respect to its NYSE OpenBook[supreg]
service.\4\
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 62038 (May 5, 2010),
75 FR 26825 (May 12, 2010) (SR-NYSE-2010-22) (approving on a
permanent basis the alternative unit-of-count methodology).
---------------------------------------------------------------------------

    Under a unit-of-count methodology, the Exchange would not define
the Vendor-subscriber relationship based on the manner in which a
datafeed recipient or subscriber receives data (i.e., through
controlled displays or through data feeds). Instead, the Exchange uses
billing criteria that defines ``Vendors,'' ``Subscribers,''
``Subscriber Entitlements'' and ``Subscriber Entitlement Controls'' as
the basis for setting professional subscriber fees. The Exchange
believes that this methodology more closely aligns with current data
consumption and will reduce costs for the Exchange's customers.
    The following basic principles underlie this proposal.
A. Vendors
     ``Vendors'' are market data vendors, broker-dealers,
private network providers and other entities that control Subscribers'
access to data through Subscriber Entitlement Controls.
B. Subscribers
     ``Subscribers'' are unique individual persons or devices
to which a Vendor provides data. Any person or device that receives
data from a Vendor is a Subscriber, whether the person or device works
for or belongs to the Vendor, or works for or belongs to an entity
other than the Vendor.
     Only a Vendor may control Subscriber access to data.
     Subscribers may not redistribute data in any manner.
C. Subscriber Entitlements
     A Subscriber Entitlement is a Vendor's permissioning of a
Subscriber to receive access to data through an Exchange-approved
Subscriber Entitlement Control.
     A Vendor may not provide data access to a Subscriber
except through a unique Subscriber Entitlement.
     The Exchange will require each Vendor to provide a unique
Subscriber Entitlement to each unique Subscriber.
     At prescribed intervals (normally monthly), the Exchange
will require each Vendor to report each unique Subscriber Entitlement.
D. Subscriber Entitlement Controls
     A Subscriber Entitlement Control is the Vendor's process
of permissioning Subscribers' access to data.
     Prior to using any Subscriber Entitlement Control or
changing a previously approved Subscriber Entitlement Control, a Vendor
must provide the Exchange with a demonstration and a detailed written
description of the control or change and the Exchange must have
approved it in writing.
     The Exchange will approve a Subscriber Entitlement Control
if it allows only authorized, unique end-users or devices to access
data or monitors access to data by each unique end-user or device.
     Vendors must design Subscriber Entitlement Controls to
produce an audit report and make each audit report available to the
Exchange upon request. The audit report must identify:
    1. Each entitlement update to the Subscriber Entitlement Control;

    2. The status of the Subscriber Entitlement Control; and
    3. Any other changes to the Subscriber Entitlement Control over a
given period.
     Only the Vendor may have access to Subscriber Entitlement
Controls.
    Subject to the rules described below, the Exchange will require
NYSE Amex-Only Vendors to count every Subscriber Entitlement, whether
it be a person or a device. This means that the NYSE Amex-Only Vendor
must include in the count every person and device that has access to
the data, regardless of the purposes for which the person or device
uses the data. The Exchange will require NYSE Amex-Only Vendors to
report and count all entitlements in accordance with the following
rules.
    A. The count shall be separate for the NYSE Amex Trades and NYSE
Amex BBO services. This means that a device that is entitled to receive
both NYSE Amex Last Sale Information and NYSE Amex BBO Information
would count as a Subscriber Entitlement for the purposes of the NYSE
Amex Trades service and as a separate Subscriber Entitlement for the
purposes of the NYSE Amex BBO service.
    B. In connection with a Vendor's external distribution of either
NYSE Amex Trades or NYSE Amex BBO), the NYSE Amex-Only Vendor should
count as one Subscriber Entitlement each unique Subscriber that the
NYSE Amex-Only Vendor has entitled to have access to that type of
market data. However, where a device is dedicated specifically to a
single person, the NYSE Amex-Only Vendor should count only the person
and need not count the device.
    C. In connection with a NYSE Amex-Only Vendor's internal
distribution of a type of NYSE Amex Market Data, the NYSE Amex-Only
Vendor should count as one Subscriber Entitlement each unique person
(but not devices) that the Vendor has entitled to have access to that
type of market data.
    D. The NYSE Amex-Only Vendor should identify and report each unique
Subscriber. If a Subscriber uses the same unique Subscriber Entitlement
to receive multiple services, the NYSE Amex-Only Vendor should count
that as one Subscriber Entitlement. However, if a unique Subscriber
uses multiple Subscriber Entitlements to gain access to one or more
services (e.g., a single Subscriber has multiple passwords and user
identifications), the Vendor should report all of those Subscriber
Entitlements.
    E. The NYSE Amex-Only Vendor should report each Subscriber device
serving multiple users individually as well as each person who may
access the device. As an example, for a single device to which the NYSE
Amex-Only Vendor has granted two people access, the Vendor should
report three Subscriber Entitlements. Only a single, unique device that
is dedicated to a single, unique person may be counted as one
Subscriber Entitlement.
    F. NYSE Amex-Only Vendors should report each unique person who
receives access through multiple devices as one Subscriber Entitlement
so long as each device is dedicated specifically to that person.
    G. The NYSE Amex-Only Vendor should include in the count as one
Subscriber Entitlement devices serving no users.
    For example, if a Subscriber's device has no users or multiple
users, the NYSE Amex-Only Vendor should count that device as one
Subscriber Entitlement. If a NYSE Amex-Only Vendor entitles five
individuals to use one of a Subscriber's devices, the Vendor should
count five individual entitlements and one device entitlement, for a
total of six Subscriber Entitlements. If a NYSE Amex-Only Vendor
entitles an individual to receive a type of NYSE Amex Market Data over
a Subscriber device that is dedicated to that individual, the Vendor
should count that as one Subscriber Entitlement, not two.
iii. No Program Classification Fee
    The Exchange does not propose to impose any program classification
charges for the use of NYSE Amex Last Sale Information or NYSE Amex BBO
information. The Exchange recognizes that each NYSE Amex-Only Vendor
and Subscriber will use NYSE Amex Market Data differently and that the
Exchange is one of many markets with whom Vendors and Subscribers may
enter into arrangements for the receipt and use of data. In recognition
of that, the Exchange's proposed unit-of-count methodology does not
restrict how NYSE Amex-Only Vendors may use NYSE Amex Market Data in
their display services and encourages Vendors to create and promote
innovative uses of NYSE Amex Market Data. For instance, a NYSE Amex-
Only Vendor may use NYSE Amex BBO information to create derived
information displays, such as displays that aggregate NYSE Amex BBO
information with quotation information from other markets.\5\
---------------------------------------------------------------------------

    \5\ In the case of derived displays, the Vendor is required to:
(i) Pay the Exchange's device fees; (ii) include derived displays in
its reports of NYSE Amex Market Data usage; and (iii) use reasonable
efforts to assure that any person viewing a display of derived data
understands what the display represents and the manner in which it
was derived.
---------------------------------------------------------------------------

iv. Nonprofessional Subscriber Fee
    The Exchange proposes to charge each NYSE Amex-Only Vendor $5.00
per month for each nonprofessional subscriber to whom it provides NYSE
Amex BBO Information. The Exchange proposes to impose the charge on the
NYSE Amex-Only Vendor, rather than on the nonprofessional
Subscriber.\6\ In addition, the Exchange proposes to establish as an
alternative to the fixed $5.00 monthly fee a fee of $.005 for each
response that a NYSE Amex-Only Vendor disseminates to a nonprofessional
Subscriber's inquiry for a best bid or offer under NYSE Amex BBO. The
Exchange proposes to limit a NYSE Amex-Only Vendor's exposure under
this alternative fee to $5.00 per month, the same amount as the
proposed fixed monthly nonprofessional Subscriber flat fee. In order to
take advantage of the per-query fee, a NYSE Amex-Only Vendor must
document in its Exhibit A that it can: (1) Accurately measure the
number of queries from each nonprofessional Subscriber and (2) report
aggregate query quantities on a monthly basis.
---------------------------------------------------------------------------

    \6\ The Exchange stated that it did not propose to establish a
nonprofessional subscriber fee for NYSE Amex Last Sale Information
because an alternative to that product is available. See Securities
Exchange Act Release No. 61403 (January 22, 2010), 75 FR 4598
(January 28, 2010) (SR-NYSEAmex-2009-85) (approving the NYSE Amex
Realtime Reference Prices service).
---------------------------------------------------------------------------

    The Exchange will impose the per-query fee only on the
dissemination of best bids and offers to nonprofessional Subscribers.
The per-query charge is imposed on NYSE Amex-Only Vendors, not end-
users, and is payable on a monthly basis. NYSE Amex-Only Vendors may
elect to disseminate NYSE Amex BBO pursuant to the per-query fee rather
than the fixed monthly fee.
    In establishing a nonprofessional Subscriber fee for NYSE Amex BBO,
the Exchange proposes to apply the same criteria for qualification as a
``nonprofessional subscriber'' as the CTA and CQ Plan Participants use.
Similar to the CTA and CQ Plans, classification as a nonprofessional
subscriber is subject to Exchange review and requires the subscriber to
attest to his or her nonprofessional subscriber status. A
nonprofessional subscriber is a natural person who uses the data solely
for his personal, non-business use and who is neither:
    A. Registered or qualified with the Securities and Exchange
Commission, the Commodities Futures Trading Commission, any State
securities agency, any securities exchange or

association, or any commodities or futures contract market or
association,
    B. Engaged as an ``investment adviser'' as that term is defined in
Section 202(a)(11) of the Investment Advisors Act of 1940 (whether or
not registered or qualified under that act), nor
    C. Employed by a bank or other organization exemption from
registration under Federal and/or State securities laws to perform
functions that would require him/her to be so registered or qualified
if he/she were to perform such function for an organization not so
exempt.
    The Exchange believes that the proposed monthly access fee,
professional subscriber fee and nonprofessional subscriber fee for NYSE
Amex Trades and NYSE Amex BBO enable NYSE Amex-Only Vendors and their
subscribers to contribute to the Exchange's operating costs in a manner
that is appropriate for the distribution of NYSE Amex Market Data in
the form taken by the proposed services.
    In setting the level of the proposed fees, the Exchange considered
several factors, including:
    (i) NYSE Amex's expectation that NYSE Amex Trades and NYSE Amex BBO
are likely to be premium services, used by investors most concerned
with receiving NYSE Amex Market Data on a low latency basis;
    (ii) The fees that the CTA and CQ Plan Participants, the Nasdaq/UTP
Plan Participants, Nasdaq, NYSE and NYSE Arca are charging for similar
services (or that NYSE Amex anticipates they will soon propose to
charge);
    (iii) Consultation with some of the entities that the Exchange
anticipates will be the most likely to take advantage of the proposed
service;
    (iv) The contribution of market data revenues that the Exchange
believes is appropriate for entities that are most likely to take
advantage of the proposed service;
    (v) The contribution that revenues accruing from the proposed fee
will make to meet the overall costs of the Exchange's operations;
    (vi) The savings in administrative and reporting costs that the
NYSE Amex Trades and NYSE Amex BBO will provide to NYSE Amex-Only
Vendors (relative to counterpart services under the CTA, CQ and Nasdaq/
UTP Plans); and
    (vii) The fact that the proposed fees provide alternatives to
existing fees under the CTA, CQ and Nasdaq/UTP Plans, alternatives that
vendors will purchase only if they determine that the perceived
benefits outweigh the cost.

d. Administrative Requirements

    The Exchange will require each NYSE Amex-Only Vendor to enter into
a vendor agreement just as the CTA and CQ Plans require recipients of
the Network A datafeeds to enter (the ``Consolidated Vendor Form'').
The agreement will authorize the NYSE Amex-Only Vendor to provide its
NYSE Amex Market Data service to its customers or to distribute the
data internally.
    In addition, the Exchange will require each professional end-user
that receives NYSE Amex Market Data from a vendor or broker-dealer to
enter into the form of professional subscriber agreement into which the
CTA and CQ Plans require end users of Network A data to enter. It will
also require NYSE Amex-Only Vendors to subject nonprofessional
subscribers to the same contract requirements as the CTA and CQ Plan
Participants require of Network A nonprofessional subscribers.

III. Discussion

    After careful consideration, the Commission finds that the proposed
rule change is consistent with the requirements of the Act and the
rules and regulations thereunder applicable to a national securities
exchange.\7\ In particular, it is consistent with Section 6(b)(4) of
the Act,\8\ which requires that the rules of a national securities
exchange provide for the equitable allocation of reasonable dues, fees,
and other charges among its members and issuers and other parties using
its facilities, and Section 6(b)(5) of the Act,\9\ which requires,
among other things, that the rules of a national securities exchange be
designed to promote just and equitable principles of trade, to remove
impediments to and perfect the mechanism of a free and open market and
a national market system and, in general, to protect investors and the
public interest, and not be designed to permit unfair discrimination
between customers, issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \7\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \8\ 15 U.S.C. 78f(b)(4).
    \9\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Commission also finds that the proposed rule change is
consistent with the provisions of Section 6(b)(8) of the Act,\10\ which
requires that the rules of an exchange not impose any burden on
competition not necessary or appropriate in furtherance of the purposes
of the Act. Finally, the Commission finds that the proposed rule change
is consistent with Rule 603(a) of Regulation NMS,\11\ adopted under
Section 11A(c)(1) of the Act, which requires an exclusive processor
that distributes information with respect to quotations for or
transactions in an NMS stock to do so on terms that are fair and
reasonable and that are not unreasonably discriminatory.\12\
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    \10\ 15 U.S.C. 78f(b)(8).
    \11\ 17 CFR 242.603(a).
    \12\ NYSE Amex is an exclusive processor of NYSE Amex Trades and
NYSE Amex BBO services under Section 3(a)(22)(B) of the Act, 15
U.S.C. 78c(a)(22)(B), which defines an exclusive processor as, among
other things, an exchange that distributes information with respect
to quotations or transactions on an exclusive basis on its own
behalf.
---------------------------------------------------------------------------

    The Commission has reviewed the proposal using the approach set
forth in the NYSE Arca Order for non-core market data fees.\13\ In the
NYSE Arca Order, the Commission stated that ``when possible, reliance
on competitive forces is the most appropriate and effective means to
assess whether the terms for the distribution of non-core data are
equitable, fair and reasonable, and not unreasonably discriminatory.''
\14\ It noted that the ``existence of significant competition provides
a substantial basis for finding that the terms of an exchange's fee
proposal are equitable, fair, reasonable, and not unreasonably or
unfairly discriminatory.'' \15\ If an exchange ``was subject to
significant competitive forces in setting the terms of a proposal,''
the Commission will approve a proposal unless it determines that
``there is a substantial countervailing basis to find that the terms
nevertheless fail to meet an applicable requirement of the Exchange Act
or the rules thereunder.'' \16\
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    \13\ Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770 (December 9, 2008) (SR-NYSEArca-2006-21) (``NYSE
Arca Order''). In the NYSE Arca Order, the Commission describes in
great detail the competitive factors that apply to non-core market
data products. The Commission hereby incorporates by reference the
data and analysis from the NYSE Arca Order into this order.
    \14\ Id. at 74771.
    \15\ Id. at 74782.
    \16\ Id. at 74781.
---------------------------------------------------------------------------

    As noted in the NYSE Arca Order, the standards in Section 6 of the
Act and Rule 603 of Regulation NMS do not differentiate between types
of data and therefore apply to exchange proposals to distribute both
core data and non-core data. Core data is the best-priced quotations
and comprehensive last-sale reports of all markets that the Commission,
pursuant to Rule 603(b), requires a central processor to consolidate
and distribute to the public

pursuant to joint-SRO plans.\17\ In contrast, individual exchanges and
other market participants distribute non-core data voluntarily.\18\ The
mandatory nature of the core data disclosure regime leaves little room
for competitive forces to determine products and fees.\19\ Non-core
data products and their fees are, by contrast, much more sensitive to
competitive forces. The Commission therefore is able to use competitive
forces in its determination of whether an exchange's proposal to
distribute non-core data meets the standards of Section 6 and Rule
603.\20\ Because NYSE Amex's instant proposal relates to the
distribution of non-core data, the Commission will apply the market-
based approach set forth in the NYSE Arca Order.
---------------------------------------------------------------------------

    \17\ See 17 CFR 242.603(b). (``Every national securities
exchange on which an NMS stock is traded and national securities
association shall act jointly pursuant to one or more effective
national market system plans to disseminate consolidated
information, including a national best bid and national best offer,
on quotations for and transactions in NMS stocks. Such plan or plans
shall provide for the dissemination of all consolidated information
for an individual NMS stock through a single plan processor.'')
    \18\ See NYSE Arca Order at 74779.
    \19\ Id.
    \20\ Id.
---------------------------------------------------------------------------

    The Exchange proposes to establish: (i) A service that would allow
a vendor to redistribute last sale information for which NYSE Amex
reports under the CTA Plan and the Nasdaq/UTP Plan; and (ii) a service
that would allow a vendor to redistribute best bids and offers for all
securities that are traded on the Exchange and for which NYSE Amex
reports quotes under the CQ Plan. The Exchange proposes to establish a
monthly vendor fee and an alternative fee rate that uses the unit-of-
count methodology.
    The proposal before the Commission relates to fees for NYSE Amex
Trades and NYSE Amex BBO which are non-core, market data products. As
in the Commission's NYSE Arca Order analysis, at least two broad types
of significant competitive forces applied to NYSE Amex in setting the
terms of this proposal: (i) NYSE Amex's compelling need to attract
order flow from market participants; and (ii) the availability to
market participants of alternatives to purchasing NYSE Amex Market
Data.
    Attracting order flow is the core competitive concern of any equity
exchange, including NYSE Amex. Attracting order flow is an essential
part of NYSE Amex's competitive success. If NYSE Amex cannot attract
order flow to its market, it will not be able to execute transactions.
If NYSE Amex cannot execute transactions on its market, it will not
generate transaction revenue. If NYSE Amex cannot attract orders or
execute transactions on its market, it will not have market data to
distribute, for a fee or otherwise, and will not earn market data
revenue and thus not be competitive with other exchanges that have this
ability. Table 1 below provides a useful recent snapshot of the state
of competition in the U.S. equity markets in the month of September
2009: \21\
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    \21\ The Commission recently published estimated trading
percentages in NMS Stocks in its Concept Release on Equity Market
Structure. See Securities Exchange Act Release No. 61358 (January
14, 2010), 75 FR 3594, 3597 n. 21 (January 21, 2010) (File No. S7-
02-10).

  Table 1--Trading Centers and Estimated % of ShareVolume in NMS Stocks
                             September 2009
------------------------------------------------------------------------
                                                                Share
                                                              volume in
                       Trading venue                          NMS stocks
                                                              (Percent)
------------------------------------------------------------------------
Registered Exchanges:
                  NASDAQ...................................         19.4
                  NYSE.....................................         14.7
                  NYSE Arca................................         13.2
                  BATS.....................................          9.5
                  NASDAQ OMX BX............................          3.3
                  Other Registered Exchanges...............          3.7
ECNs ..................... 5 ECNS..........................         10.8
Dark Pools ............ 32 Dark Pools (Estimated)..........          7.9
Broker-Dealer ........ 200+ Broker-Dealers (Estimated).....         17.5
 Internalization.
------------------------------------------------------------------------

    The market share percentages in Table 1 strongly indicate that NYSE
Amex must compete vigorously for order flow to maintain its share of
trading volume. This compelling need to attract order flow imposes
significant pressure on NYSE Amex to act reasonably in setting its fees
for NYSE Amex market data, particularly given that the market
participants that must pay such fees often will be the same market
participants from whom NYSE Amex must attract order flow. These market
participants particularly include the large broker-dealer firms that
control the handling of a large volume of customer and proprietary
order flow. Given the portability of order flow from one trading venue
to another, any exchange that seeks to charge unreasonably high data
fees would risk alienating many of the same customers on whose orders
it depends for competitive survival.\22\
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    \22\ See NYSE Arca Order at 74783.
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    In addition to the need to attract order flow, the availability of
alternatives to NYSE Amex Market Data significantly affect the terms on
which NYSE Amex can distribute this market data.\23\ In setting the
fees for NYSE Amex Market Data, NYSE Amex must consider the extent to
which market participants would choose one or more alternatives instead
of purchasing the exchange's data.\24\ Of course, the most basic source
of information generally available at an

exchange is the complete record of an exchange's transactions that is
provided in the core data feeds.\25\ In this respect, the core data
feeds that include an exchange's own transaction information are a
significant alternative to the exchange's market data product.\26\ The
various self-regulatory organizations, the several Trade Reporting
Facilities of FINRA, and ECNs that produce proprietary data are all
sources of competition.
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    \23\ See Richard Posner, Economic Analysis of Law Sec.  9.1 (5th
ed. 1998) (discussing the theory of monopolies and pricing). See
also U.S. Dep't of Justice & Fed'l Trade Comm'n, Horizontal Merger
Guidelines Sec.  1.11 (1992), as revised (1997) (explaining the
importance of alternatives to the presence of competition and the
definition of markets and market power). Courts frequently refer to
the Department of Justice and Federal Trade Commission merger
guidelines to define product markets and evaluate market power. See,
e.g., FTC v. Whole Foods Market, Inc., 502 F. Supp. 2d 1 (D.D.C.
2007); FTC v. Arch Coal, Inc., 329 F. Supp. 2d 109 (D.D.C. 2004). In
considering antitrust issues, courts have recognized the value of
competition in producing lower prices. See, e.g., Leegin Creative
Leather Products v. PSKS, Inc., 127 S. Ct. 2705 (2007); Atlanta
Richfield Co. v. United States Petroleum Co., 495 U.S. 328 (1990);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574
(1986); State Oil Co. v. Khan, 522 U.S. 3 (1997); Northern Pacific
Railway Co. v. U.S., 356 U.S. 1 (1958).
    \24\ See NYSE Arca Order at 74783.
    \25\ Id.
    \26\ Id.
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    In sum, there are a variety of alternative sources of information
that impose significant competitive pressures on NYSE Amex in setting
the terms for distributing its NYSE Amex Market Data. The Commission
believes that the availability of those alternatives, as well as NYSE
Amex's compelling need to attract order flow, imposed significant
competitive pressure on NYSE Amex to act equitably, fairly, and
reasonably in setting the terms of its proposal.
    Because NYSE Amex was subject to significant competitive forces in
setting the terms of the proposal, the Commission will approve the
proposal in the absence of a substantial countervailing basis to find
that its terms nevertheless fail to meet an applicable requirement of
the Act or the rules thereunder. An analysis of the proposal does not
provide such a basis.

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\27\ that the proposed rule change (SR-NYSEAmex-2010-35) be, and
hereby is, approved.
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    \27\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\28\
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    \28\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-13335 Filed 6-2-10; 8:45 am]
BILLING CODE 8010-01-P