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EPA REGISTRATION DIVISION COMPANY NOTICE OF FILING FOR PESTICIDE
PETITIONS PUBLISHED IN THE FEDERAL REGISTER

EPA Registration Division contact: [P.V. Shah,<PHONE_NUMBER>]

INSTRUCTIONS:  Please utilize this outline in preparing the pesticide
petition.  In cases where the outline element does not apply, please
insert “NA-Remove” and maintain the outline. Please do not change
the margins, font, or format in your pesticide petition. Simply replace
the instructions that appear in green, i.e., “[insert company
name],” with the information specific to your action.

TEMPLATE:

[Syngenta Crop Protection, LLC]

[3F8206]

	EPA has received a pesticide petition (3F8206) from [Syngenta Crop
Protection, LLC], [P.O. Box 81300, Greensboro NC 27419] requesting,
pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act
(FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing a
tolerance for residues of the herbicide safener [fluxofenim (CAS Reg.
No. 88485-37-4)] in or on the raw agricultural commodity [grain sorghum,
grain; grain sorghum, forage; and grain sorghum, fodder] at [0.01; 0.01;
and 0.01] parts per million (ppm), respectively.  EPA has determined
that the petition contains data or information regarding the elements
set forth in section 408 (d)(2) of  FDDCA; however, EPA has not fully
evaluated the sufficiency of the submitted data at this time or whether
the data supports granting of the petition. Additional data may be
needed before EPA rules on the petition.

A. Residue Chemistry

	1. Plant metabolism. [Plant metabolism information is not included.
There are no detectable residues even following applications with
exaggerated rates (5X).]

	2. Analytical method. [Analytical Method GRM063.01A provides a reliable
determination of CGA 133205 (fluxofenim) by LC-MS/MS in grain sorghum
raw agricultural commodities with a limit of quatification of 0.01 ppm.]

	3. Magnitude of residues. [A Magnitude of Residue Study conducted on
field grown grain sorghum is included in this submission indicating that
nominal and 5X product label rates resulted in no detectable fluxofenim
residues in grain sorghum grain, forage or fodder with a limit of
detection of 0.01 ppm.]

B. Toxicological Profile

	1. Acute toxicity.  [Fluxofenim technical: acute oral toxicity LD50 =
667mg/kg; acute dermal toxicity LD50 = 1544 mg/kg; acute inhalation
toxicity LD50 > 1.12 mg/l; acute eye irritation classification =
moderately/mildly irritating; acute dermal irritation classification =
slight irritant; not a dermal sensitizer.]

	2. Genotoxicty. [Fluxofenim is not mutagenic in the Ames test at
concentrations up to the cytotoxic and inhibitory limits of 500
ug/plate.  An in vitro study on the ability of fluxofenim to cause DNA
damage in isolated hepatocytes was negative, as was a sudy on the
potential of fluxofenim to cause chromosomal damage in a mouse
micronucleus test.]

	3. Reproductive and developmental toxicity. [In a dose range-finding
study in rat, fluxofenim was administered orally by gavage to 5 groups
of rats (10 females per group) once daily at doses of 5, 25, 50, 100 or
150 mg/kg on gestational days 6-15.  An additional group of rats (10
females) received vehicle (10 ml/kg/day) and served as controls.
Maternal toxicity was observed at ≥ 25 mg/kg evidenced by body weight
losses at ≥ 50 mg/kg and reductions in body weight and feed
consumption at ≥ 25 mg/kg.  Reproductive findings included decreases
in the number of live fetuses, marked increases in the number of
resorptions and post-implantation losses at ≥ 100 mg/kg.  Slight to
moderate decreases in fetal weights were observed in the 50 and 100
mg/kg treated groups.  These reductions in fetal weights were considered
secondary to the compound induced maternal toxicity and were reflective
of a slight fetal developmental delay.  No treatment related effects
were noted at 5 mg/kg.  Based on these findings, the maternal NOEL was 5
mg/kg/day, while the fetal NOEL was 25 mg/kg/day.

In a rabbit dose range-finding study, fluxofenim was administered orally
to two groups (4 females per group) at daily doses of 300 or 700 mg/kg.
Mortality rates of 100% were observed in both dosed groups by the third
day of dosing.  Death was preceded by decreased/no stool, lethargy and
anorexia in all compound-treated animals.  Due to early death of does,
embryotoxicity could not be evaluated in this exploratory study.

≥ 15 mg/kg and were limited to slight mean body weight loss at 30
mg/kg and decrease in daily food consumption at ≥ 15 mg/kg.  Fetal
pathology findings were limited to an increased incidence of a minor
skeletal variation (not ossified centrum/vertebrae) observed at 30
mg/kg.  This minor skeletal variation was considered to be associated
with compound-induced maternal toxicity.  Fluxofenim was well tolerated
by animals receiving 1 mg/kg.  Based on these findings, the maternal
NOEL was set at 1 mg/kg, while 15 mg/kg was determined to be the fetal
NOEL.]

	4. Subchronic toxicity. [In a dose range-finding study in the dog,
groups of 2 dogs of each sex were administered capsules to provide doses
of 5, 50, 100 and 150 mg/kg/day and 2 dogs of each sex were fed constant
dietary concentrations of 2500 ppm fluxofenim for 4 weeks.  Severe
toxicity, evidenced by emaciation, lack of appetite and emesis was
observed in the two top dose groups.  In addition, decreased body weight
gain was observed at ≥ 50 mg/kg/day.  Microscopic findings in the
liver (centrilobular necrosis), kidney (interstitial inflammation), and
hematopoietic system (hypoerythropoiesis in the sternal bone marrow)
were reported at doses of  ≥ 100 mg/kg/day.  No clinical toxicity or
histopathologic changes were observed at the lowest test dose.  The NOEL
for this study was 5 mg/kg/day.

In a 90 day dog study, groups of 4 dogs of each sex were administered
fluxofenim in capsules at doses of 0, 0.4, 4, 20 or 40 mg/kg/day.
Administration of up to 40 mg/kg/day did not produce mortality or
significant changes in body weight, body weight gain, food consumption,
clinical observations or clinical chemistry parameters.
Treatment-related effects were observed only in the top dose group and
included effects in organ weights in females (thyroid, liver and
kidney), and changes on hematological parameters in both sexes
(decreased mean corpuscular hemoglobin concentration and decreased red
blood cell count).  The NOEL for this study was 20 mg/kg/day.

In order to determine appropriate dietary concentrations of fluxofenim
for a subsequent sub-chronic toxicity study, a dose range-finding study
was conducted in the rat at feeding levels of 0, 100, 500, 1000, 2500,
and 5000 ppm for 4 weeks.  Treatment induced mortality at the highest
dose (5000 ppm).  Decreases in body weight and food consumption, and
increased incidence of clinical observations suggestive of general
toxicity were reported in all treated animals with the exception of the
lowest dose tested (100 ppm).  Based upon the body weight changes
observed at 500 and 1000 ppm, the recommended top dose for a subsequent
90 day sub-chronic study was set at 500 ppm.

In the 90 day oral study in rat, groups of 10 rats of each sex were fed
constant dietary concentrations of 0, 10, 30, 150 or 300 ppm fluxofenim
for 90 days.  No mortality or clinical signs of toxicity were observed,
and there were no necropsy or histopathology findings suggestive ofa
relationship to treatment with fluxofenim for any tissues or organs
examined.  Male body weights were decreased after week 9 of exposure and
absolute and relative (to body) kidney weights were increased in females
receiving 30 ppm and above.  Based on kidney weight changes, the
NOEL’s were 10 and 30 ppm for females and males, respectively.

Mild skin irritation was noted in a 5-day dermal toxicity study at doses
as low as 1 mg/kg.  A 21 day dermal study was conducted with rabbit with
peanut oil as the vehicle followed by a 21 day dermal study in rabbit to
determine the effects of the peanut oil on the results.  The studies are
summarized in extracts from a Status Report dated October 12, 1990 from
EPA, Office of Toxic Substances, indicating that:

The submitter noted that the test compound “has been reported to cause
treatment-related kidney changes…” and that these “renal changes
[were] characterized by cytoplasmic vacuplation of cortical tubules,
tubular dilation, and the presence of tubular casts and/or tubular
basophilia… in male rabbits at dermal doses of 0.125, 125 and 400
mg/kg and in females in the mid- and high-dose groups…”

Ciba-Geigy sent a letter to OTS November 19, 1990 indicating that a
repeat study was planned for the 21 day rabbit dermal study to try to
determin the influence of the suspension vehicle, peanut oil, on the
results of the study.  The repeat study was completed at doses of 0.05,
0.125, or 125 mg/kg/day.  The test substance was applied neat, and an
extra treatment was included with 0.125 mg/kg applied in a peanut oil
suspension.  Peanut oil alone and water alone were used as controls.
The report summary includes:

Treatment-related effects were limited to dermal changes that were
observed in all CGA 133205 [fluxofenim] treated groups and the control
sites treated with peanut oil, and included: 1) slight to severe dermal
irritation (erythema, papules, thickened skin, atonia or flaking) in
both sexes; and 2) microscopic evidence of minimal to moderate
acanthosis with hperkeratosis and inflammation.  In general, the effects
of CGA 133205 applied as neat material were slight or mild in severity
at 0.05 and 0.125 mg/kg, but more severe at 125 mg/kg.  Moderate dermal
irritation was observed with CGA 133205 administered as a suspension in
peanut oil (0.125 mg/kg), but these changes were essentially
indistinguishable from that of the corresponding control. Since there
were no systemic effects seen at any dose in this study, the NOEL for
systemic changes was 125 mg/kg; however, a dermal NOEL was not achieved
for this study.]

	5. Chronic toxicity. [No chronic toxicity is provided.]

	6. Animal metabolism. [No animal metabolism data is provided.]

	7. Metabolite toxicology. [No metabolite data is provided.]

	8. Endocrine disruption. [Fluxofenim does not belong to a class of
chemicals known or suspected of having adverse effects on the endocrine
system.]

C. Aggregate Exposure

	1. Dietary exposure. [Tier I acute and chronic dietary exposure
assessments were performed for fluxofenim using the Dietary Exposure
Evaluation Model (DEEM-FCID™ Version 3.16) from Exponent and
consumption data from the USDA NHANES “What We Eat in America”
survey, 2003-2008.  These fluxofenim exposure assessments included the
sole current use for fluxofenim on grain sorghum.  These assessments
utilized estimated tolerances from field trial residue data where
fluxofenim was applied at the maximum intended seed dressing use rate;
samples were harvested at the minimum pre-harvest interval (PHI) to
obtain maximum residues.  All processing factors utilized DEEM-FCIDTM
Version 7.87 defaults.  The percent of crop treated value was assumed to
be 100%.  Secondary residues in livestock commodities were
conservatively estimated based on “maximum reasonably balanced
diets” and transfer information from a rat metabolism study.]

	i. Food. [Acute exposure.  The acute dietary (food only) risk
assessment for females 13-49 years old (the only population subgroup for
which an acute toxicological endpoint has been established) was
performed using an acute reference dose (aRfD) of 0.01 mg/kg-bw/day,
based upon a rat teratology study with a no observed adverse effect
level (NOAEL) of 1.0 mg/kg-bw/day and an uncertainty factor (UF) of 100X
for intra- and inter-species variations; no additional FQPA safety
factor was applied.  For the purpose of the aggregate risk assessment,
the exposure value was expressed in terms of margin of exposure (MOE),
which was calculated by dividing the NOAEL by the exposure for each
population subgroup.  In addition, exposure was expressed as a percent
of the acute reference dose (%aRfD).  Acute food exposure to the females
13-49 years subpopulation resulted in a MOE of 260,032 (0.1% of the aRfD
of 0.01 mg/kg-bw/day).  The Benchmark MOE for this assessment was 100.

Chronic exposure.  The chronic dietary (food only) risk assessment was
performed using a chronic reference dose (RfD) of 0.01 mg/kg-bw/day,
based on a 3-month rat study with a NOAEL of 1.0 mg/kg-bw/day and an
uncertainty factor of 100X for intra- and inter-species variations; no
additional FQPA safety factor was applied.  For the purpose of the
aggregate risk assessment, the exposure values were expressed in terms
of margin of exposure (MOE), which was calculated by dividing the NOAEL
by the exposure for each population subgroup.  In addition, exposure was
expressed as a percent of the chronic reference dose (%cRfD).  Chronic
food exposures to the U.S. population resulted in a MOE of 446,964 (0.1%
of the cRfD of 0.01 mg/kg-bw/day).  Chronic food exposures to the most
sensitive subpopulation (children 1-2 years old) resulted in a MOE of
74,547 (0.1% of the cRfD of 0.01 mg/kg-bw/day).  The Benchmark MOE for
this assessment was 100.]

	ii. Drinking water. [The Estimated Drinking Water Concentrations
(EDWCs) of fluxofenim were determined using Tier 1 model SCI-GROW which
estimates pesticide concentrations in ground water and Tier 1 model
FIRST which estimates pesticide concentrations in surface water.
Fluxofenim used as a seed dressing on sorghum provided a ground water
EDWC of 0.0419 ppb (acute and chronic) and surface water EDWCs of 0.325
ppb and 0.150 ppb for acute and chronic, respectively.  Since the
surface water EDWCs exceed the ground water EDWC, the surface water
values were used for risk assessment purposes and will be considered
protective for any ground water exposure concerns.

Acute Exposure from Drinking Water.  The acute surface water EDWC of
0.325 ppb was input directly into the DEEM-FCID™ software as “water,
direct and indirect, all sources” to model the acute drinking water
exposures.  Exposure contributions at the 95th %-ile of exposures were
determined by taking the difference between the aggregate (food +
drinking water) exposures and food (alone) exposures for each population
subgroup.  Acute drinking water exposure at the 95th %-ile for females
(13-49 years), the only population subgroup for which an acute
toxicological endpoint has been established, resulted in a MOE of 62,500
(0.2% of the aRfD of 0.01 mg/kg-bw/day).  The Benchmark MOE for this
assessment was 100.

Chronic Exposure from Drinking Water.  The chronic surface water EDWC of
0.150 ppb was input directly into the DEEM-FCID™ software as “water,
direct and indirect, all sources” to model the chronic drinking water
exposures.  Chronic drinking water exposure to the U.S. population
resulted in a MOE of 318,343 (0.1% of the cRfD of 0.01 mg/kg-bw/day).
Chronic drinking water exposure to the most exposed sub-population
(infants <1 year old) resulted in a MOE of 123,477 (0.1% of the cRfD of
0.01 mg/kg-bw/day).  The Benchmark MOE for this assessment was 100.]

	2. Non-dietary exposure. [Fluxofenim is not registered for any use that
would result in residential handler (mixer/loader/applicator) or
post-application exposures, therefore no post-application residential
assessments were performed.]

D. Cumulative Effects

	[Section 408(b)(2)(D)(v) requires that, when considering whether to
establish, modify, or revoke a tolerance, the Agency consider
“available information” concerning the cumulative effects of a
particular pesticide’s residues and “other substances that have a
common mechanism of toxicity”.  For the purposes of this tolerance
action, the EPA has not determined that fluxofenim has a common
mechanism of toxicity with other substances.]

E. Safety Determination

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An acute toxicological endpoint has not been established for the general
U.S. population, so an acute aggregate exposure assessment was not
performed for the U.S. population.  Acute aggregate exposures to females
13-49 years resulted in a MOE of 51,239 (0.2% of the aRfD of 0.01
mg/kg-bw/day).  The chronic aggregate exposure assessment showed that
exposures from the current sorghum use for fluxofenim resulted in a MOE
of 185,936 (0.1% of the cRfD of 0.01 mg/kg-bw/day) for the U.S.
population, which exceeds the Benchmark MOE of 100.]

	2. Infants and children. [An acute toxicological endpoint has not been
established for infants and children, so an acute aggregate exposure
assessment was not performed for infants and children.  The chronic
aggregate exposure assessment showed that exposures from the current
sorghum use for fluxofenim resulted in a MOE of 55,725 (0.1% of the cRfD
of 0.01 mg/kg-bw/day) for children 1-2 years old, which exceeds the
Benchmark MOE of 100.]

F. International Tolerances

	[The Codex Alimentarius Commission (CODEX) has not established Maximum
Residue Limits (MRLs) for fluxofenim in any agricultural commodity.]

 PAGE

 PAGE   6


[Federal Register Volume 79, Number 202 (Monday, October 20, 2014)]
[Notices]
[Page 62612]
[FR Doc No: 2014-24888]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings #1

    Take notice that the Commission received the following electric
rate filings:

    Docket Numbers: ER14-2897-001.
    Applicants: Direct Energy Business, LLC.
    Description: Tariff Amendment per 35.17(b): Amendment to 51 to be
effective 10/10/2014.
    Filed Date: 10/9/14.
    Accession Number: 20141009-5246.
    Comments Due: 5 p.m. ET 10/30/14.

    Docket Numbers: ER14-2898-001.
    Applicants: Direct Energy Marketing Inc.
    Description: Tariff Amendment per 35.17(b): Amendment to 49 to be
effective 10/10/2014.
    Filed Date: 10/9/14.
    Accession Number: 20141009-5238.
    Comments Due: 5 p.m. ET 10/30/14.

    Docket Numbers: ER14-2899-001.
    Applicants: Direct Energy Services, LLC.
    Description: Tariff Amendment per 35.17(b): Amendment to 48 to be
effective 10/10/2014.
    Filed Date: 10/9/14.
    Accession Number: 20141009-5231.
    Comments Due: 5 p.m. ET 10/30/14.

    Docket Numbers: ER14-2901-001.
    Applicants: Energy America, LLC.
    Description: Tariff Amendment per 35.17(b): Amendment to 50 to be
effective 10/10/2014.
    Filed Date: 10/9/14.
    Accession Number: 20141009-5220.
    Comments Due: 5 p.m. ET 10/30/14.

    Docket Numbers: ER15-69-000.
    Applicants: Direct Energy Small Business, LLC.
    Description: Sec.  205(d) rate filing per 35.13(a)(2)(iii): Normal
2014 to be effective 10/10/2014.
    Filed Date: 10/9/14.
    Accession Number: 20141009-5232.
    Comments Due: 5 p.m. ET 10/30/14.

    Docket Numbers: ER15-70-000.
    Applicants: Erie Power, LLC.
    Description: Initial rate filing per 35.12 Erie Power Market Based
Rate Tariff to be effective 12/9/2014.
    Filed Date: 10/9/14.
    Accession Number: 20141009-5254.
    Comments Due: 5 p.m. ET 10/30/14.

    Docket Numbers: ER15-71-000.
    Applicants: Direct Energy Business Marketing, LLC.
    Description: Sec.  205(d) rate filing per 35.13(a)(2)(iii): Normal
2014 to be effective 10/10/2014.
    Filed Date: 10/9/14.
    Accession Number: 20141009-5256.
    Comments Due: 5 p.m. ET 10/30/14.

    The filings are accessible in the Commission's eLibrary system by
clicking on the links or querying the docket number.
    Any person desiring to intervene or protest in any of the above
proceedings must file in accordance with Rules 211 and 214 of the
Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00
p.m. Eastern time on the specified comment date. Protests may be
considered, but intervention is necessary to become a party to the
proceeding.
    eFiling is encouraged. More detailed information relating to filing
requirements, interventions, protests, service, and qualifying
facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call<PHONE_NUMBER>
(toll free). For TTY, call<PHONE_NUMBER>.

    Dated: October 10, 2014.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2014-24888 Filed 10-17-14; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 80, Number 82 (Wednesday, April 29, 2015)]
[Notices]
[Pages 23793-23794]
[FR Doc No: 2015-09969]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings #1

    Take notice that the Commission received the following electric
rate filings:

    Docket Numbers: ER15-414-001.
    Applicants: ISO New England Inc., Emera Energy Services Subsidiary
No. 1 LLC, Central Maine Power Company, New England Power Company,
Northeast Utilities Service Company (as, The United Illuminating
Company, Vermont Transco, LLC, Unitil Energy Systems, Inc., New
Hampshire Transmission, LLC.
    Description: Compliance filing per 35: ER15-414 ROE Compliance
Filing to be effective 10/16/2014.
    Filed Date: 4/22/15.
    Accession Number: 20150422-5315.
    Comments Due: 5 p.m. ET 5/13/15.

    Docket Numbers: ER15-1120-001.
    Applicants: Nevada Power Company.
    Description: Tariff Amendment per 35.17(b): Service Agreement No.
14-00081 NPC and Aiya LGIA Change in Effective Date to be effective 12/
31/9998.
    Filed Date: 4/22/15.
    Accession Number: 20150422-5310.
    Comments Due: 5 p.m. ET 5/13/15.

    Docket Numbers: ER15-1121-001.
    Applicants: Nevada Power Company.
    Description: Tariff Amendment per 35.17(b): Service Agreement No.
12-00082 NPC and Moapa LGIA Change in Effective Date to be effective
12/31/9998.
    Filed Date: 4/22/15.
    Accession Number: 20150422-5318.
    Comments Due: 5 p.m. ET 5/13/15.

    Docket Numbers: ER15-1122-001.
    Applicants: Nevada Power Company.
    Description: Tariff Amendment per 35.17(b): Service Agreement No.
14-00076 NPC and Playa Change in Effective Date to be effective 12/31/
9998.
    Filed Date: 4/23/15.
    Accession Number: 20150423-5001.
    Comments Due: 5 p.m. ET 5/14/15.

    Docket Numbers: ER15-1549-000.
    Applicants: Central Maine Power Company.
    Description: Section 205(d) rate filing per 35.13(a)(2)(iii):
Executed CSIA with Brookfield White Pine Hydro LLC to be effective 3/
23/2015.
    Filed Date: 4/22/15.
    Accession Number: 20150422-5284.
    Comments Due: 5 p.m. ET 5/13/15.

    Docket Numbers: ER15-1550-000.
    Applicants: PJM Interconnection, L.L.C., The Dayton Power and Light
Company.
    Description: Section 205(d) rate filing per 35.13(a)(2)(iii): DP&L
submits Original Service Agreement No. 4133 to be effective 4/23/2015.
    Filed Date: 4/22/15.
    Accession Number: 20150422-5290.
    Comments Due: 5 p.m. ET 5/13/15.

    Docket Numbers: ER15-1551-000.

    Applicants: Central Maine Power Company.
    Description: Section 205(d) rate filing per 35.13(a)(2)(iii):
Executed CSIA with FPL Energy Cape LLC to be effective 4/14/2015.
    Filed Date: 4/22/15.
    Accession Number: 20150422-5292.
    Comments Due: 5 p.m. ET 5/13/15.

    Docket Numbers: ER15-1552-000.
    Applicants: Central Maine Power Company.
    Description: Section 205(d) rate filing per 35.13(a)(2)(iii):
Executed CSIA with FPL Energy Wyman LLC to be effective 4/14/2015.
    Filed Date: 4/22/15.
    Accession Number: 20150422-5300.
    Comments Due: 5 p.m. ET 5/13/15.

    Docket Numbers: ER15-1553-000.
    Applicants: Central Maine Power Company.
    Description: Section 205(d) rate filing per 35.13(a)(2)(iii):
Executed CSIA with FPL Energy Wyman IV LLC to be effective 4/14/2015.
    Filed Date: 4/22/15.
    Accession Number: 20150422-5305.
    Comments Due: 5 p.m. ET 5/13/15.

    Docket Numbers: ER15-1554-000.
    Applicants: Midcontinent Independent System Operator, Inc.
    Description: Section 205(d) rate filing per 35.13(a)(2)(iii): 2015-
04-23_SA 2780 ATC-Minnesota Power OCSA to be effective 6/23/2015.
    Filed Date: 4/23/15.
    Accession Number: 20150423-5081.
    Comments Due: 5 p.m. ET 5/14/15.

    Docket Numbers: ER15-1555-000.
    Applicants: Midcontinent Independent System Operator, Inc.
    Description: Section 205(d) rate filing per 35.13(a)(2)(iii): 2015-
04-23_SA 2781 ATC-Superior Water Light & Power OCSA to be effective 6/
23/2015.
    Filed Date: 4/23/15.
    Accession Number: 20150423-5087.
    Comments Due: 5 p.m. ET 5/14/15.

    The filings are accessible in the Commission's eLibrary system by
clicking on the links or querying the docket number.
    Any person desiring to intervene or protest in any of the above
proceedings must file in accordance with Rules 211 and 214 of the
Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00
p.m. Eastern time on the specified comment date. Protests may be
considered, but intervention is necessary to become a party to the
proceeding.
    eFiling is encouraged. More detailed information relating to filing
requirements, interventions, protests, service, and qualifying
facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call<PHONE_NUMBER>
(toll free). For TTY, call<PHONE_NUMBER>.

    Dated: April 23, 2015.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2015-09969 Filed 4-28-15; 8:45 am]
 BILLING CODE 6717-01-P


[Federal Register: September 17, 2008 (Volume 73, Number 181)]
[Rules and Regulations]
[Page 53686]
[DOCID:fr17se08-3]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Part 803

[Docket No. FDA-2008-N-0310]

Medical Devices; Medical Device Reporting; Baseline Reports;
Confirmation of Effective Date

AGENCY: Food and Drug Administration, HHS.

ACTION: Direct final rule; confirmation of effective date.

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SUMMARY: The Food and Drug Administration (FDA) is confirming the
effective date of October 27, 2008, for the final rule that appeared in
the Federal Register of June 13, 2008 (73 FR 33692). The direct final
rule amends the Medical Device Reporting regulation by removing the
requirement for baseline reports. This document confirms the effective
date of the direct final rule.

DATES: Effective date confirmed: October 27, 2008.

FOR FURTHER INFORMATION CONTACT: Howard A. Press, Center for Devices
and Radiological Health (HFZ-531), Food and Drug Administration, 1350
Piccard Dr., Rockville, MD 20850,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: In the Federal Register of June 13, 2008 (73
FR 33692), FDA solicited comments concerning the direct final rule for
a 75-day period ending August 27, 2008. FDA stated that the effective
date of the direct final rule would be on October 27, 2008, 60 days
after the end of the comment period, unless any significant adverse
comment was submitted to FDA during the comment period. FDA did not
receive any significant adverse comments.

    Authority: Therefore, under the Federal Food, Drug, and Cosmetic
Act and the Public Health Service Act, and under authority delegated
to the Commissioner of Food and Drugs, the amendments issued thereby
become effective on October 27, 2008.

    Dated: September 11, 2008.
Jeffrey Shuren,
Associate Commissioner for Policy and Planning.
[FR Doc. E8-21756 Filed 9-16-08; 8:45 am]

BILLING CODE 4160-01-S


Participants have not justified the rationale they have used to set the
proposed fees for auction information, and therefore it is not
necessary for the Commission to make a finding about the absolute level
of the proposed fees.
    The Filing Participants have not demonstrated that the proposed
fees for Auction Data provide for the distribution of information with
respect to quotations for and transactions in NMS stocks on terms that
are fair, reasonable, and not unreasonably discriminatory consistent
with Rule 603(a) of Regulation NMS. Thus, the Commission cannot find
that, consistent with Rule 608 of Regulation NMS, the Proposed
Amendment is necessary or appropriate in the public interest, for the
protection of investors and the maintenance of fair and orderly
markets, to remove impediments to, and perfect the mechanisms of, a
national market system, or otherwise in furtherance of the purposes of
the Act.\210\
---------------------------------------------------------------------------

    \210\ See 17 CFR 242.608(b)(2).
---------------------------------------------------------------------------

4. Fees for Professional and Non-Professional Users
    For each of the three categories of data described above, the
Filing Participants propose a Professional Subscriber Charge and a
Nonprofessional Subscriber Charge. With respect to Level 1 Service, the
Filing Participants propose to charge the same Professional Subscriber
and Nonprofessional Subscriber fees for the new Level 1 Service product
under the distributed consolidation model as are charged for the
existing UTP Level 1 Service SIP data product that the Nasdaq/UTP Plan
generates and disseminates. With respect to depth-of-book data,
Professional Subscribers would pay $99.00 per device per month,\211\
and Nonprofessional Subscribers would pay $4.00 per device per
month.\212\ With respect to auction information, both Professional
Subscribers and Nonprofessional Subscribers would pay $10.00 per device
per month.\213\
---------------------------------------------------------------------------

    \211\ See Notice, supra note 6, 86 FR at 67563.
    \212\ See id. The Filing Participants applied the 3.94x ratio to
the current fees charged for Nonprofessional Subscribers taking all
three Networks ($3.00). This resulted in the total fee level for
depth-of-book data for Nonprofessional Subscribers equaling $12.00
(i.e., $3.00 x 3.94 = $11.82, rounded to $12.00). This fee was then
split evenly among the three Networks, resulting in a proposed
Nonprofessional Subscriber fee of $4.00 per Network. See id. at
67565.
    \213\ See id. at 67563.
---------------------------------------------------------------------------

    Some commenters, including a Non-Supporting Participant, question
the classification of fees by professional or non-professional user
type under the

Proposed Amendment.\214\ One commenter states that it is unreasonably
discriminatory to charge non-professional users the same fees as
professional users for auction data because professionals make far more
use of the data,\215\ and that the filing contains no justification as
to why the Filing Participants propose to charge professionals the same
as non-professionals for auction data.\216\ One commenter opposes non-
professional and professional user classifications on the grounds that
they prevent competing consolidators from being able to offer products
at competitive prices compared to the proprietary data feeds.\217\ One
commenter states that the inclusion of multiple tiers, user types with
bespoke definitions, and high compliance costs does not amount to fair
and reasonable terms and in fact unreasonably discriminates against
competing consolidators who seek to bring competition, innovation, and
broader access to consolidated market data.\218\ According to the
commenter, simplifying the pricing structure to allow for enterprise
caps at multiple tiers should be considered, along with easier-to-track
proxies for usage based on data already reported by firms or other
existing regulatory reporting.\219\ Another commenter suggests slowing
down the data feeds by 15 milliseconds to mitigate the risk of
professionals ``masquerading'' as non-professionals utilizing the
cheaper data.\220\
---------------------------------------------------------------------------

    \214\ See Angel Letter, supra note 169; BlackRock Letter, supra
note 56; MIAX Letter, supra note 56; Polygon.io Letter I, supra note
126, at 2-3; MayStreet Letter I, supra note 56.
    \215\ See Angel Letter, supra note 169, at 9-10.
    \216\ See id. at 10.
    \217\ See Polygon.io Letter I, supra note 126, at 2-3.
    \218\ See MayStreet Letter I, supra note 56, at 8.
    \219\ See id.
    \220\ See Angel Letter, supra note 169, at 11.
---------------------------------------------------------------------------

    Some commenters support moderately priced or free non-professional
user fees. Two Non-Supporting Participants support the proposed low
fees for non-professional users.\221\ One commenter supports the
proposed ``moderately priced'' non-professional rate for depth-of-book
information because this aspect of the proposal ``levels the playing
field'' for retail investors by providing them with access to the same
information that is available to professionals traders at an affordable
price, which will help broaden adoption of this new category of
data.\222\ Another commenter states that free or moderately priced non-
professional data, including depth-of-book and auction data, is in the
best interest of brokers and exchanges because it may increase retail
order flow and thus profits into the industry.\223\ The commenter
further states that free or moderately priced non-professional data is
in the best interest of the Commission as well, because providing
``better data to retail investors at low cost will reduce the amount of
SEC resources devoted to dealing with complaints based on
misunderstandings of market function.'' \224\
---------------------------------------------------------------------------

    \221\ See MIAX Letter, supra note 56, at 2; MEMX Letter, supra
note 56, at 3.
    \222\ BlackRock Letter, supra note 56, at 1, 3.
    \223\ See Angel Letter, supra note 169, at 11.
    \224\ Id.
---------------------------------------------------------------------------

    One Filing Participant states that distinguishing between
professional and non-professional subscribers is fair, as well as
efficient.\225\ According to this commenter, professional fees are
higher than those for non-professionals because professionals realize
greater value from the data than non-professionals.\226\ The commenter
states that applying the same fees to both categories would result
either in low-value users subsidizing high-value users, or in fees that
are not economically sustainable for producers.\227\ According to the
commenter, setting professional and non-professional fees based on the
value of the data is efficient, fair, and well established by the
industry, and setting those fees based on cost is likely to be
unworkable.\228\ Another Filing Participant states that it is fair,
reasonable, and not unreasonable discriminatory for ``Wall Street to
pay higher fees than Main Street.'' \229\
---------------------------------------------------------------------------

    \225\ See Nasdaq Letter II, supra note 74, at 3.
    \226\ See id. The commenter further states that Non-
Professionals are provided a discount to encourage their use of the
data. See id.
    \227\ See Nasdaq Letter II, supra note 74 at 3.
    \228\ See id.
    \229\ NYSE Letter, supra note 70, at 8.
---------------------------------------------------------------------------

    With respect to the specific fees proposed, one Non-Supporting
Participant states that the proposed professional user fees are based
on a flawed methodology that results in excessive fee levels that would
discourage firms from registering as competing consolidators and would
hinder the formation of the decentralized consolidation model that the
MDI Rules seeks to create.\230\ Another Non-Supporting Participant
states that the proposed fees are ``plagued by double counting and
other significant issues'' that raise questions about the process used
to design the Proposed Amendments.\231\ For example, this commenter
states that, as proposed, the $70 Professional User fee for depth-of-
book information comes with access only to aggregated depth-of-book
information and does not include top-of-book information, even though
the calculation of that fee is based on a depth-of book product that
includes top-of-book information.\232\ This, the commenter states, ``is
straightforward double counting, plain and simple.'' \233\ The
commenter also states that while auction information is included in the
depth-of-book feed used to calculate the proposed fees, the proposal
also charges additional fees, including Professional and Non-
Professional Fees, for auction information.\234\ The commenter states
that even exchanges that offer separate feeds for auction information
generally do not charge Professional user fees.\235\
---------------------------------------------------------------------------

    \230\ See MIAX Letter, supra note 56, at 4.
    \231\ See MEMX Letter, supra note 56, at 10.
    \232\ See id. at 12. According to the commenter, the value of
top-of-book information is therefore already embedded in the cost
proposed for depth-of-book information. See id.
    \233\ See id.
    \234\ See id. at 13-14.
    \235\ See id.
---------------------------------------------------------------------------

    One Non-Supporting Participant states that the proposed non-
professional user fees were a step in the right direction, but points
out that, while the proposed fees would be lower for the limited subset
of Non-Professional users that consume depth-of-book quotation
information, the proposed fees are higher than the fees currently
charged for proprietary data products that offer similar
information.\236\ This commenter adds that, even where the proposed
fees are lower than the fees charged for comparable proprietary data--
as is the case for Non-Professional users--the fact that the other fees
are higher than proprietary offerings is likely to reduce incentives
for competing consolidators to actually offer that data content to
their customers.\237\ According to the commenter, there is unlikely to
be any demand for the new data elements included in consolidated market
data at prices that exceed the fees charged for proprietary data feeds
today.\238\ In response to this commenter, a Filing Participant argues
that this analysis does not account for the fact that purchasers of the
new data would be receiving a consolidated data product that aggregates
all exchanges' data together to determine an NBBO and the five best
levels of depth among all the exchanges and that the analysis
disregards that the Proposed

Amendment includes much lower fees for non-professionals.\239\
---------------------------------------------------------------------------

    \236\ See id. at 7.
    \237\ See id. at 9.
    \238\ See id. at 17. The commenter further states that the
Operating Committees should analyze whether it is fair and
reasonable to continue to charge professional and non-professional
user fees that exceed the fees charges for similar proprietary
market data. See id.
    \239\ See NYSE Letter, supra note 70, at 8.
---------------------------------------------------------------------------

    The Commission finds that the Filing Participants have not
demonstrated that the proposed fees for professional and non-
professional subscribers are fair, reasonable, and not unreasonably
discriminatory. With respect to Level 1 Service, the Filing
Participants state they are not proposing to change the Professional
Subscriber and Nonprofessional Subscriber fees currently set forth in
the Nasdaq/UTP Plan. But, as discussed above,\240\ in the context of
the MDI Rules, the Proposed Amendment is in fact proposing fees
applicable to a new data product--the data content underlying the top-
of-book data product to be collected, consolidated, and disseminated by
competing consolidators--that differs both with respect to content and
administrative expense from the existing top-of-book product generated
and disseminated by the exclusive SIP. In taking the position that they
are not proposing to do more than add content to the existing UTP Level
1 Service product offered by the exclusive SIP, however, the Filing
Participants have not even attempted to explain or justify how the
proposed Professional and Non Professional Fees for the new Level 1
Service satisfy the statutory standard of being fair, reasonable and
not unreasonably discriminatory.'' \241\ Significantly, the Filing
Participants have not taken into account that the current
consolidation, processing, and dissemination expenses incurred by the
Equity Data Plans would be inapplicable to the data content underlying
consolidated data offered through the new Level 1 Service product to be
collected, consolidated, and disseminated by competing
consolidators.\242\
---------------------------------------------------------------------------

    \240\ See supra Section IV.C.1.
    \241\ See MDI Rules Release, supra note 11, 86 FR at 18684.
    \242\ See id. at 18682 (stating that ``the proposed new fees
[filed pursuant to Rule 614(e)] will need to reflect . . . that the
effective national market system plan(s) is no longer operating the
exclusive SIPs and is no longer performing collection,
consolidation, and dissemination functions'').
---------------------------------------------------------------------------

    With respect to depth-of-book data, the Filing Participants have
not demonstrated that the proposed Professional and Non Professional
depth-of-book fees are fair, reasonable, and not unreasonably
discriminatory. The Filing Participants have attempted to justify the
proposed Professional and Non-Professional fees for depth-of-book data
by using the same multiplier (i.e., 3.94x) employed to calculate the
proposed fees for data content underlying consolidated depth-of-book
offerings,\243\ but, as explained in detail above, the Filing
Participants have not demonstrated that the use of this multiplier is
appropriate in the first place because, among other things, the
proprietary depth-of-book feeds contain top-of-book data and auction
information, which the data content underlying consolidated depth-of-
book feed would lack, leading to ``double-counting,'' as several
commenters have pointed out.\244\ In addition, with respect to auction
information, other than describing the proposal, explaining the
methodology used to generate the proposed fees,\245\ and arguing that
the resulting fees are fair, reasonable, and not unreasonably
discriminatory, the Filing Participants have not attempted to explain
or otherwise justify why it is fair, reasonable, and not unreasonably
discriminatory to set both the Professional Subscribers and
Nonprofessional Subscribers fee at the same rate of $10.00 per device
per month.
---------------------------------------------------------------------------

    \243\ See supra note 213.
    \244\ See supra Section IV.C.2 for a discussion on issues
associated with the application of the multiplier used by the Filing
Participants to generate certain proposed fees.
    \245\ See Notice, supra note 6, 86 FR at 67563-65.
---------------------------------------------------------------------------

    The Filing Participants have not demonstrated that the proposed
fees for professional and non-professional users provide for the
distribution of information with respect to quotations for and
transactions in NMS stocks on terms that are fair, reasonable, and not
unreasonably discriminatory consistent with Rule 603(a) of Regulation
NMS. Thus, the Commission cannot find that, consistent with Rule 608 of
Regulation NMS, the Proposed Amendment is necessary or appropriate in
the public interest, for the protection of investors and the
maintenance of fair and orderly markets, to remove impediments to, and
perfect the mechanisms of, a national market system, or otherwise in
furtherance of the purposes of the Act.\246\
---------------------------------------------------------------------------

    \246\ See 17 CFR 242.608(b)(2).
---------------------------------------------------------------------------

5. Fees for Non-Display Use
    The Filing Participants propose Non-Display Use fees relating to
the three categories of data described above: (1) Level 1 Service; (2)
depth-of-book data; and (3) auction information. With respect to Level
1 Service, the Filing Participants propose to apply the Non-Display Use
fees currently set forth in the Nasdaq/UTP Plan to the data content
underlying consolidated market data in the new Level 1 Service data
product to be offered by the competing consolidators, namely $3,500 per
month,\247\ for each of the three types of Non-Display Use.\248\ With
respect to depth-of-book data, Subscribers would pay Non-Display Use
Fees of $12,477.00 per month for each type of Non-Display Use.\249\
With respect to auction information, Subscribers would pay Non-Display
Use fees of $1,248.00 per month for each type of Non-Display Use.\250\
---------------------------------------------------------------------------

    \247\ See Exhibit 2(i) to the Nasdaq/UTP Plan.
    \248\ The Filing Participants propose that access to odd-lot
information would be made available to Level 1 Service subscribers
for the same fees currently charged for Level 1 Service provided by
the exclusive SIP. See Notice, supra note 6, 86 FR at 67563. See
also supra note 32 (describing the three types of Non-Display Use
recognized under Exhibit 2(i) to the Nasdaq/UTP Plan).
    \249\ See Notice, supra note 6, 86 FR at 67563.
    \250\ The Filing Participants state that, as is the case today,
Subscribers would be charged for each category of use of depth-of-
book data and auction information. See Notice, supra note 6, 86 FR
at 67563.
---------------------------------------------------------------------------

    Some commenters, including a Non-Supporting Participant, state that
the proposed Non-Display Use fees result in excessive fee levels that
would discourage firms from registering as competing consolidators,
thereby hindering the formation of the decentralized consolidation
model that the MDI Rules seeks to create.\251\ One commenter states
that the fees in the Proposed Amendment, including the non-display
fees, would place competing consolidators at a disadvantage because
they will not be able to offer products at prices competitive with
those of proprietary feeds.\252\ One commenter asks that the Commission
reject the Proposed Amendment and any future proposal that maintains
display/non-display classifications.\253\ The commenter states that, if
the Proposed Amendment is not rejected, competing consolidators will
not be able to offer products at competitive prices to proprietary data
feeds.\254\
---------------------------------------------------------------------------

    \251\ See MIAX Letter, supra note 56, at 3; Polygon.io Letter I,
supra note 126, at 2-3.
    \252\ See Cutler Group Letter, supra note 134, at 1-2.
    \253\ See Polygon.io Letter I, supra note 126, at 2.
    \254\ See id.
---------------------------------------------------------------------------

    One Filing Participant states that distinguishing between Display
and Non-Display use is fair, as well as efficient.\255\ According to
this commenter, algorithms, dark pools, and electronic traders pay
higher fees than human professionals because they realize greater value
from the data.\256\ The commenter argues that, because Non-Display
users realize greater value from the use of market data than Display
users, applying the same fees to both

categories would result either in low-value users subsidizing high-
value users or fees that are not economically sustainable for
producers.\257\ The commenter states that the Proposed Amendment thus
sets the Display Fee and Non-Display Fee according to the value of the
data, which is efficient, fair, and well-established in the industry
both nationally and globally.\258\ According to the commenter, any
alternative based solely on cost is likely to be unworkable.\259\
---------------------------------------------------------------------------

    \255\ See Nasdaq Letter II, supra note 74, at 3.
    \256\ See id.
    \257\ See id.
    \258\ See id. at 2.
    \259\ See id.
---------------------------------------------------------------------------

    The Filing Participants have not explained or justified how the
proposed Non-Display Fees are fair, reasonable, and not unreasonably
discriminatory. With respect to the new Level 1 Service, the Filing
Participants state they are proposing to charge the same fees for Non-
Display Use of Level 1 data that are currently set forth in the Nasdaq/
UTP Plan with respect to data disseminated by the exclusive SIP. But,
as discussed above,\260\ in the context of the MDI Rules the Proposed
Amendment is in fact proposing fees applicable to a new data product--
the top-of-book data product to be collected, consolidated, and
disseminated by competing consolidators--that differs both with respect
to content and administrative expense from the existing top-of-book
product generated and disseminated by the exclusive SIP. In taking the
position that they have not proposed to do more than add content to the
existing Level 1 product offered by the exclusive SIP, however, the
Filing Participants have not even attempted to explain how the proposed
Non-Display Use fees for Level 1 Service satisfy the statutory standard
of being fair, reasonable, and not unreasonably discriminatory.\261\
Significantly, the Filing Participants have not taken into account that
the current consolidation, processing, and dissemination expenses
incurred by the Equity Data Plans would be inapplicable to the data
content underlying the new Level 1 products to be offered by competing
consolidators.\262\
---------------------------------------------------------------------------

    \260\ See supra Section IV.C.1.
    \261\ See MDI Rules Release, supra note 11, 86 FR at 18684.
    \262\ See supra note 243 and accompanying text.
---------------------------------------------------------------------------

    With respect to the content underlying depth-of-book data, the
Filing Participants state that they applied the 3.94x multiplier to the
current fees charged for Non-Display Use for all three Networks,
resulting in a proposed Non-Display Use fee of $12.477.00 per
network.\263\ With respect to depth-of-book data, the Filing
Participants have not demonstrated that the proposed Non-Display Use
fees are fair, reasonable, and not unreasonably discriminatory. The
Filing Participants have attempted to justify the proposed Non-Display
Use fees for depth-of-book data by using the same multiplier (i.e.,
3.94x) employed to calculate the proposed fees for the data underlying
the consolidated depth-of-book feed, but, as explained in detail above,
the Filing Participants have not demonstrated that the use of this
multiplier is appropriate in the first place because, among other
things, the proprietary depth-of-book feeds contain top-of-book data
and auction information, which the consolidated depth-of-book feed
would lack, leading to ``double-counting,'' as several commenters have
pointed out.\264\
---------------------------------------------------------------------------

    \263\ See Notice, supra note 6, 86 FR at 67565.
    \264\ See supra Section IV.C.2.
---------------------------------------------------------------------------

    With respect to auction information, Filing Participants propose
that Subscribers would pay Non-Display Use fees of $1,248.00 per month
for each category of Non-Display Use.\265\ The Filing Participants
state that, as is the case today, Subscribers would be charged for each
type of non-display use of auction information.\266\ The Filing
Participants, however, have not explained the basis for the proposed
Non-Display Use fees for auction information, and the Commission
therefore has no basis on which it can find that the proposed fees are
fair, reasonable, and not unreasonably discriminatory. And even if the
unstated rationale is that the proposed fees are 10% of the proposed
Non-Display Use fees for depth-of-book data--consistent with the
derivation of auction information fees from the fees for the content
underlying depth-of-book data--that rationale would suffer from the
same weaknesses as the rationale underlying the proposed fees for Non-
Display Use of depth-of-book data and for the content underlying depth-
of-book data. The Filing Participants have not demonstrated that is
fair, reasonable, and not unreasonably discriminatory to calculate the
fees by comparison to the current charges for proprietary depth-of-book
products, which are substantially different products than those at
issue in the Proposed Amendment.\267\
---------------------------------------------------------------------------

    \265\ The Filing Participants state that, as is the case today,
Subscribers would be charged for each category of use of depth-of-
book data and auction information. See Notice, supra note 6, 86 FR
at 67563.
    \266\ See supra note 32 (describing the types of Non-Display
Uses recognized under Exhibit 2(i) to the Nasdaq/UTP Plan).
    \267\ See supra Section IV.C.2 for a discussion on issues
associated with the application of the multiplier used by the Filing
Participants to generate certain proposed fees.
---------------------------------------------------------------------------

    The Filing Participants have not demonstrated that the proposed
fees for Non-Display Use provide for the distribution of information
with respect to quotations for and transactions in NMS stocks on terms
that are fair, reasonable, and not unreasonably discriminatory
consistent with Rule 603(a) of Regulation NMS. Thus, the Commission
cannot find that, consistent with Rule 608 of Regulation NMS, the
Proposed Amendment is necessary or appropriate in the public interest,
for the protection of investors and the maintenance of fair and orderly
markets, to remove impediments to, and perfect the mechanisms of, a
national market system, or otherwise in furtherance of the purposes of
the Act.\268\
---------------------------------------------------------------------------

    \268\ See 17 CFR 242.608(b)(2).
---------------------------------------------------------------------------

6. Access Fees
    The Filing Participants propose to charge Access Fees to all
subscribers for the use of the three categories of data: (1) Level 1
Service; (2) depth-of-book data; and (3) auction information. With
respect to Level 1 Service, the Filing Participants to apply the same
Access Fees that currently set forth in the Nasdaq/UTP Plan with
respect to data disseminated by the exclusive SIP. With respect to
depth-of-book data, the Filing Participants propose to charge
Subscribers a monthly Access Fee of $9,850.00 per Network. With respect
to auction information, the Filing Participants propose to charge
Subscribers a monthly Access Fee of $985.00 per Network.
    Some commenters oppose the access fees in the proposed fee
schedule. One Non-Supporting Participant states that the proposed
access fees result in excessive fee levels that would discourage firms
from registering as competing consolidators and would hinder the
formation of the decentralized consolidation model that the MDI Rules
seeks to create.\269\ Another Non-Supporting Participant states that
the proposed access fees are not fair and reasonable because they are
more expensive than those charged by exchanges for their proprietary
products.\270\
---------------------------------------------------------------------------

    \269\ See MIAX Letter, supra note 56, at 3.
    \270\ See MEMX Letter, supra note 56, at 6, 8. See also Cutler
Group Letter, supra note 134, at 1-2 (noting that it supports the
comment letter written by MEMX and that the Proposed Amendment makes
market data less accessible).
---------------------------------------------------------------------------

    The Filing Participants have not demonstrated that the proposed
access fees for depth-of-book information are fair, reasonable, and not
unreasonably discriminatory. With respect to Level 1

Service, the Filing Participants are proposing to charge the same
Access Fees for Non-Display Use of Level 1 data that are currently set
forth in the Nasdaq/UTP Plan with respect to data disseminated by the
exclusive SIP. But, as discussed above,\271\ in the context of the MDI
Rules, the Proposed Amendment is in fact proposing fees applicable to a
new data product--the top-of-book data product to be generated and
disseminated by competing consolidators--that differs both with respect
to content and administrative expense from the existing top-of-book
product generated and disseminated by the exclusive SIP. In taking the
position that they have not proposed to do more than add content to the
existing Level 1 product offered by the exclusive SIP, however, the
Filing Participants have not even attempted to explain or justify how
the proposed Access Fees for Level 1 Service satisfy the statutory
standard of being fair, reasonable and not unreasonably
discriminatory.'' \272\ Significantly, the Filing Participants have not
taken into account that the current consolidation, processing, and
dissemination expenses incurred by the Equity Data Plans would be
inapplicable to the data content underlying the new Level 1 products to
be offered by competing consolidators.
---------------------------------------------------------------------------

    \271\ See supra Section IV.C.1.
    \272\ See MDI Rules Release, supra note 11, 86 FR at 18684.
---------------------------------------------------------------------------

    With respect to Access Fees for the content underlying depth-of-
book data, the Filing Participants have attempted to justify the
proposed Access Fees by using the same multiplier (i.e., 3.94x) to the
Access Fees charged for all three Networks, resulting in a proposed
Access Fee of $9,850.00 per Network.\273\ But, as explained in detail
above, the Filing Participants have not demonstrated that the use of
this multiplier is appropriate in the first place because, among other
things, the proprietary depth-of-book feeds contain top-of-book data
and auction information, which the consolidated depth-of-book feed
would lack, leading to ``double-counting,'' as several commenters have
pointed out.\274\
---------------------------------------------------------------------------

    \273\ See Notice, supra note 6, 86 FR at 67565.
    \274\ See supra Section IV.C.2 (discussing issues associated
with the application of the multiplier used by the Filing
Participants to generate certain proposed fees).
---------------------------------------------------------------------------

    Finally, with respect to auction information, the Filing
Participants have not explained the basis for the proposed Access Fees
for auction information, and the Commission therefore has no basis on
which it can find that the proposed fees are fair, reasonable, and not
unreasonably discriminatory. And even if the unstated rationale is that
the proposed fees are 10% of the proposed Access Fees for depth-of-book
data, consistent with the derivation of auction information fees from
the fees for the content underlying depth-of-book data, that rationale
would suffer from the same weaknesses as the rationale for Non-Display
Use of depth-of-book data and for the content underlying depth-of-book
data. The Filing Participants have not demonstrated that is fair,
reasonable, and not unreasonably discriminatory to calculate the fees
by comparison to the current charges for proprietary depth-of-book
products, which are substantially different products than those at
issue in the Proposed Amendment.\275\
---------------------------------------------------------------------------

    \275\ See id.
---------------------------------------------------------------------------

    The Filing Participants have not demonstrated that the proposed
Access Fees provide for the distribution of information with respect to
quotations for and transactions in NMS stocks on terms that are fair,
reasonable, and not unreasonably discriminatory consistent with Rule
603(a) of Regulation NMS. Thus, the Commission cannot find that,
consistent with Rule 608 of Regulation NMS, the Proposed Amendment is
necessary or appropriate in the public interest, for the protection of
investors and the maintenance of fair and orderly markets, to remove
impediments to, and perfect the mechanisms of, a national market
system, or otherwise in furtherance of the purposes of the Act.\276\
---------------------------------------------------------------------------

    \276\ See 17 CFR 242.608(b)(2).
---------------------------------------------------------------------------

7. Redistribution Fees
    The Filing Participants propose that the existing Redistribution
Fees would apply to all three categories of core data (i.e., Level 1,
depth-of-book, and auction information), including any subset
thereof.\277\ The Filing Participants are not proposing to change the
amount of the Redistribution Fees. The Filing Participants also specify
that Redistribution Fees would be charged to competing consolidators.
---------------------------------------------------------------------------

    \277\ The Filing Participants state that, currently,
Redistribution Fees are charged to any entity that makes last sale
information or quotation information available to any other entity
or to any person other than its employees, irrespective of the means
of transmission or access. The Filing Participants propose to amend
this description to make it applicable to core data, as that term is
defined in Rule 600(b)(21). See Notice, supra note 6, 86 FR at
67566.
---------------------------------------------------------------------------

    In support of their proposal to charge Redistribution Fees to
competing consolidators, the Filing Participants argue: (1) that the
comparison the Commission made in the MDI Rules Release between self-
aggregators (which would not pay Redistribution Fees) and competing
consolidators is not appropriate in determining whether a
redistribution fee is not unreasonably discriminatory; and (2) that the
Commission's comparison is not consistent with the current long-
standing practice of the Plan that redistribution fees are charged to
any entity that distributes data externally.\278\ The Filing
Participants state that a self-aggregator, by definition, would not be
distributing data externally and would therefore not be subject to such
fees, which, according to the Filing Participants, is consistent with
current Plan practice that a subscriber to consolidated data that only
uses data for internal use is not charged a Redistribution Fee.
---------------------------------------------------------------------------

    \278\ See, e.g., Cover Letter, supra note 1, at 4; Notice, supra
note 6, 86 FR at 67563. The Filing Participants state that the
current exclusive SIP is not charged a Redistribution Fee. The
Filing Participants state, however, that unlike competing
consolidators, the processor has been retained by the Nasdaq/UTP
Plan to serve as an exclusive SIP, is subject to oversight by both
the Nasdaq/UTP Plan and the Commission, and neither pays for the
data nor engages with data subscriber customers. The Filing
Participants state that, by contrast, under the competing
consolidator model: The Nasdaq/UTP Plan would have no role in either
overseeing or determining which entities choose to be a competing
consolidator; a competing consolidator would need to purchase
consolidated market data just as any other vendor would; and
competing consolidators would be responsible for competing for data
subscriber clients. Accordingly, the Filing Participants argue,
competing consolidators would be more akin to vendors than to the
current exclusive SIPs. The Filing Participants state that if any
entity that is currently an exclusive SIP chooses to register as a
competing consolidator, that entity would be subject to the
Redistribution Fee. See Cover Letter, supra note 1, at 4 n.7;
Notice, supra note 6, 86 FR at 67563 n.12.
---------------------------------------------------------------------------

    The Filing Participants argue that the more appropriate comparison
would be between competing consolidators and downstream vendors, both
of which would be selling consolidated market data directly to market
data subscribers. The Filing Participants state that vendors are and
would still be subject to Redistribution Fees when redistributing data
to market data subscribers and argue that it would be unreasonably
discriminatory and would impose a burden on competition if competing
consolidators--which would be competing with downstream market data
vendors for the same data subscriber customers--are not charged a
Redistribution Fee for exactly the same activity.
    One commenter states that the Proposed Amendment should treat
competing consolidators as replacements to the exclusive SIPs, not as
data vendors.\279\ The commenter states that subjecting competing
consolidators to the same fees as data

vendors and subscribers that receive consolidated market data from the
exclusive SIP fails to recognize that competing consolidators are SIPs
and are not similarly situated to today's data vendors.\280\ This
commenter further states that competing consolidators should not be
charged redistribution fees because they are not redistributing
consolidated market data, but are instead generating and distributing
consolidated data for the first time.\281\ According to this commenter,
redistribution fees should not be charged by the Plan because the Plan
would no longer govern the distribution of consolidated market
data.\282\ The commenter states that not recognizing competing
consolidators as SIPs places competing consolidators at a competitive
disadvantage relative to data vendors, given that they take on expenses
and risks that data vendors do not, such as the costs for generating
consolidated market data, disclosing operational and performance
metrics, registering with the Commission, and complying with Rule 614
of Regulation NMS.\283\
---------------------------------------------------------------------------

    \279\ See MayStreet Letter I, supra note 56, at 3.
    \280\ See id. at 3-4.
    \281\ See id.
    \282\ See id. at 5.
    \283\ See id.
---------------------------------------------------------------------------

    One Non-Supporting Participant states that the redistribution fee
for competing consolidators is inconsistent with the MDI Rules, is not
fair and reasonable, and is unreasonably discriminatory.\284\ This
commenter states that the proposal's attempt to justify the
redistribution fee based on the current centralized model that charges
fees to downstream vendors is unsound because, under the decentralized
MDI Rules, competing consolidators would be ``stepping into the role
that the SIPs hold today as the primary sources of consolidated market
data.'' \285\ According to this commenter, to charge a redistribution
fee on top of the other proposed fees would ``unquestionably put
competing consolidators at a further competitive disadvantage as
compared to aggregated proprietary data products offered by
exchanges,'' thus targeting them in an unfair and unreasonable
manner.\286\
---------------------------------------------------------------------------

    \284\ See MIAX Letter, supra note 56, at 2 (citing the MDI Rules
Release statements that ``imposing redistribution fees on data
content underlying consolidated market data that will be
disseminated by competing consolidators would be difficult to
reconcile with the standards of being fair and reasonable and not
unreasonably discriminatory in the new decentralized model,'' and
that ``fees proposed by the SROs should not contain redistribution
fees for competing consolidators because this would hinder their
ability to compete.'').
    \285\ Id.
    \286\ Id.
---------------------------------------------------------------------------

    One commenter states the Proposed Amendment directly contradicts
the Commission's directive in the MDI Rules that competing
consolidators not be treated the same as market data vendors.\287\ The
commenter states that the Filing Participants are ``engaged in a
strategy to undermine the Commission's authority over market data as
enumerated in the CT Plan and MDI Rule[s] in order to preserve their
current revenues from proprietary and SIP data.'' \288\ The commenter
further states that the Filing Participants' position that the
competing consolidators should be charged redistribution fees just like
any market data vendor undermines the efforts of the MDI Rules.\289\
The commenter cites the Commission's statement in the MDI Rules Release
that the fees for the data content underlying consolidated market data
should not include redistribution fees for competing consolidators.''
\290\ The commenter argues that by treating competing consolidators
differently than the exclusive SIPs, the Filing Participants are acting
in an unreasonably discriminatory manner, effectively disregarding the
Exchange Act mandates in addition to the Commission's directive in the
MDI Rules.\291\ The commenter argues that imposing redistribution fees
on competing consolidators imposes an undue burden on competition.\292\
---------------------------------------------------------------------------

    \287\ See SIFMA Letter I, supra note 56, at 4-5.
    \288\ Id. at 6; see also SIFMA Letter II, supra note 56, at 3.
    \289\ See SIFMA Letter I, supra note 56, at 7; SIFMA Letter II,
supra note 56, at 2.
    \290\ See SIFMA Letter I, supra note 56, at 7; SIFMA Letter II,
supra note 56, at 2.
    \291\ See SIFMA Letter I, supra note 56, at 7; SIFMA Letter II,
supra note 56, at 2.
    \292\ See SIFMA Letter I, supra note 56, at 7; SIFMA Letter II,
supra note 56, at 2.
---------------------------------------------------------------------------

    Other commenters also suggest that the imposition of redistribution
fees on competing consolidators would place competing consolidators at
a competitive disadvantage.\293\ One commenter states that by charging
redistribution fees to competing consolidators, the Proposed Amendment
creates a barrier to entry to technology solution vendors becoming
competing consolidators.\294\ Two other commenters, including a Non-
Supporting Participant, also argue that the redistribution fees charged
to competing consolidators are in contravention of the Commission's
express direction in the MDI Rules.\295\ Another Non-Supporting
Participant states that the proposed redistribution fee that would be
charged to competing consolidators is inconsistent with the purposes
and structure of the MDI Rules, and that this aspect of the proposal
represents a ``further indication that the intent of the majority [of
the exchanges] was to subvert the purpose of the Commission's order.''
\296\
---------------------------------------------------------------------------

    \293\ See NBIM Letter, supra note 78, at 2; Cutler Group Letter,
supra note 134, at 1-2.
    \294\ See NovaSparks Letter, supra note 125, at 1.
    \295\ See FINRA Letter, supra note 157, at 5; MEMX Letter, supra
note 56, at 21.
    \296\ IEX Letter, supra note 56, at 5.
---------------------------------------------------------------------------

    One Filing Participant states that, although the Commission in the
MDI Rules Release compared competing consolidators to self-aggregators,
a more appropriate comparison would be between competing consolidators
and downstream vendors.\297\ According to this commenter, because these
vendors would be subject to redistribution fees when redistributing
data to their subscribers, it would impose a burden on competition and
be unfair to vendors not to charge a redistribution fee for exactly the
same activity by competing consolidators.\298\
---------------------------------------------------------------------------

    \297\ See NYSE Letter, supra note 70, at 7.
    \298\ See id.
---------------------------------------------------------------------------

    As the Commission stated in the MDI Rules Release, ``the fees for
the data content underlying consolidated data should not include
redistribution fees for competing consolidators,'' \299\ and imposing
redistribution fees on competing consolidators ``would be difficult to
reconcile with statutory standards of being fair and reasonable and not
unreasonably discriminatory in the new decentralized model.'' \300\ The
Filing Participants' attempt to justify the Redistribution Fee--basing
it on the long-standing practice within a centralized model that
charges fees to ``any entity that distributes data''--is misplaced.
Unlike current vendors that take consolidated data generated by the
exclusive SIP, distribute it, and pay redistribution fees, the
competing consolidators will ``take the place of the exclusive SIP,
which is not charged a redistribution fee.'' \301\ The competing
consolidators will take underlying data content from the exchanges and
will themselves generate the consolidated data. Thus, there is no
``redistribution'' when a competing consolidator sells consolidated
data--at fees set forth in the Plan--to a subscriber. Moreover, like
the exclusive SIPs, competing consolidators will take on expenses,
risks, and obligations that data vendors do not, such as the costs for
collecting, consolidating, generating, and disseminating consolidated
equity

market data.\302\ Additionally, like the exclusive SIPs and unlike
vendors, competing consolidators will be subject to the registration,
disclosure, and other regulatory requirements under Rule 614 and Form
CC of Regulation NMS,\303\ as well as to the requirements of Regulation
SCI.\304\
---------------------------------------------------------------------------

    \299\ MDI Rules Release, supra note 11, 86 FR at 18685.
    \300\ Id.
    \301\ Id.
    \302\ See id. at 18603-04, 18662-76 (discussing registration and
responsibilities of competing consolidators).
    \303\ See id. at 18603-04, 18662-76 (discussing registration and
responsibilities competing consolidators).
    \304\ In the MDI Rules Release, the Commission amended
Regulation SCI to expand the definition of ``SCI entities'' to
include ``SCI competing consolidators'' that are subject to the
requirements of Regulation SCI after an initial transition period if
they meet a threshold based on certain share of gross consolidated
market data revenues. See id. at 18604-05.
---------------------------------------------------------------------------

    Thus, the Filing Participants have not adequately explained or
justified how the proposal to impose Redistribution Fees reflects,
consistent with the MDI Rules, that ``that the effective national
market system plan(s) is no longer operating the exclusive SIPs and is
no longer performing collection, consolidation, and dissemination
functions.'' \305\ The Filing Participants have not explained how
keeping the proposed Redistribution Fees unchanged from the current
fees under the Nasdaq/UTP Plan is an appropriate means of establishing
the proposed fees, or how the resulting fee levels are fair and
reasonable and not unreasonably discriminatory. Additionally, the
Filing Participants have not explained how charging Redistribution
Fees--layered atop the other fees described above--to competing
consolidators (thus subjecting them to the same fees as vendors and
subscribers) is necessary or appropriate in the public interest, for
the protection of investors and the maintenance of fair and orderly
markets, to remove impediments to, and perfect the mechanisms of, a
national market system, or otherwise in furtherance of the purposes of
the Act.\306\
---------------------------------------------------------------------------

    \305\ Id. at 18682.
    \306\ See 17 CFR 242.608(b)(2).
---------------------------------------------------------------------------

    The Filing Participants have not demonstrated that the proposed
Redistribution Fees provide for the distribution of information with
respect to quotations for and transactions in NMS stocks on terms that
are fair, reasonable, and not unreasonably discriminatory consistent
with Rule 603(a) of Regulation NMS. Thus, the Commission cannot find
that, consistent with Rule 608 of Regulation NMS, the Proposed
Amendment is necessary or appropriate in the public interest, for the
protection of investors and the maintenance of fair and orderly
markets, to remove impediments to, and perfect the mechanisms of, a
national market system, or otherwise in furtherance of the purposes of
the Act.\307\
---------------------------------------------------------------------------

    \307\ See 17 CFR 242.608(b)(2).
---------------------------------------------------------------------------

    8. Other Comments Regarding the Proposed Fees \308\
---------------------------------------------------------------------------

    \308\ In addition to the other comments discussed in this Order,
the Commission also received a letter in the comment file that is
not germane to the Proposed Amendment. See Letter from Charles L.
Groothoff (Apr. 13, 2022).
---------------------------------------------------------------------------

    One commenter states that the proposed fees for the content
underlying consolidated market data would be too high whether a cost-
basis or value-basis were used as a justification by the Filing
Participants.\309\ A Non-Supporting Participant states that any
analysis of current SIP fees should include a discussion of what
structural changes could be made to SIP fees to eliminate or reduce the
incentives that firms have today to avoid providing SIP data to their
customers.\310\ One commenter favors expanding the broker-dealer
enterprise cap that is part of the current fee schedule of the Plan,
stating that the Proposed Amendment provides no depth-of-book
enterprise cap and that the Level 1 enterprise caps are out of reach
for most market participants.\311\ Another commenter states that it
supports the proposed a la carte fee structure for the expanded
elements of consolidated data because, in the commenter's view, market
participants should be able to select from a variety of market data
products and pay only for the content they consume.\312\
---------------------------------------------------------------------------

    \309\ See MayStreet Letter I, supra note 56, at 6.
    \310\ See MEMX Letter, supra note 56, at 20.
    \311\ See MayStreet Letter I, supra note 56, at 8.
    \312\ See BlackRock Letter, supra note 56, at 2-3.
---------------------------------------------------------------------------

    One Non-Supporting Participant compares the proposed fees for
content underlying consolidated data to fees currently charged for
proprietary data fees and argues that at any given price a subscriber
would be better off subscribing to the proprietary data fees listed
instead of purchasing data from the Plan, given the additional
information included on those feeds.\313\ This commenter states that,
because the proposed fees are generally more expensive than current
proprietary data offerings, the Proposed Amendments clearly fail the
``fair and reasonable'' test required by the Exchange Act.\314\ This
commenter further argues that it is unlikely that there will be any
demand for the new data elements included in consolidated market data
at prices that exceed the fees charged for proprietary data feeds
today.\315\
---------------------------------------------------------------------------

    \313\ See MEMX Letter, supra note 56, at 7.
    \314\ See id. at 8.
    \315\ See id. at 17.
---------------------------------------------------------------------------

    The Commission in this Order is not taking a position on what
structure or level of fees--either on an absolute basis or in
comparison to existing proprietary data products--would be appropriate,
but finds that the Filing Participants have failed to demonstrate that
the proposed fees provide for the distribution of information with
respect to quotations for and transactions in NMS stocks on terms that
are fair and reasonable and not unreasonably discriminatory.\316\
---------------------------------------------------------------------------

    \316\ See Sections 11A(c)(1)(C)-(D) of the Exchange Act, 15
U.S.C 78k-1(c)(1)(C)-(D); Rule 603(a) of Regulation NMS, 17 CFR
242.603.
---------------------------------------------------------------------------

    Some commenters, including Non-Supporting Participants, also argue
that the proposed fees would have an adverse impact on competition, and
on competing consolidators in particular.\317\ One Non-Supporting
Participant states that, even where the proposed fees are lower than
the fees charged for comparable proprietary data, the fact that other
fees are higher than proprietary offerings is likely to reduce
incentives for competing consolidators to actually offer that data
content to their customers and would limit the potential customer base
for competing consolidators and inappropriately impede the viability of
competing consolidators under the infrastructure rule.\318\ Another
commenter expresses concern that if the Proposed Amendment were
approved, the exchanges would entrench a high cost for market data that
has no relation to underlying expenses, is not subject to effective
competitive forces, and serves as a formidable barrier to entry for
newer firms.\319\ One commenter states that the current proposal will
favor current market data vendors who already pay for these fees and
have large customer bases, but will not necessarily use the most
efficient data consolidation solutions.\320\ This commenter states that
all of the equity market data plans should have a unified feed and
price list because most end users today consume all of the plans'
feeds.\321\
---------------------------------------------------------------------------

    \317\ See MIAX Letter, supra note 56, at 1, 3; MEMX Letter,
supra note 56, at 2, 9, 10-17, 21-22, 25; NBIM Letter, supra note
78, at 2; NovaSparks Letter, supra note 125, at 1; IEX Letter, supra
note 56, at 5; SIFMA Letter I, supra note 56, at 8; FINRA Letter,
supra note 157, at 5; MayStreet Letter I, supra note 56, at 5;
BlackRock Letter, supra note 56, at 1-4; Polygon.io Letter I, supra
note 126, at 3; Proof Services Letter, supra note 56, at 3; Cutler
Group Letter, supra note 134, at 1.
    \318\ See MEMX Letter, supra note 56, at 9, 17.
    \319\ See Proof Services Letter, supra note 56, at 1.
    \320\ See NovaSparks Letter, supra note 125, at 1.
    \321\ See id. at 1-2.
---------------------------------------------------------------------------

    The Commission has considered these comments regarding the
competitive challenges of the current market

environment and the role the Plan and these proposed fees would play
under the competing consolidator regime. As discussed above, the
Commission has found that the Filing Participants have not demonstrated
that the proposed fees for content underlying consolidated market data
are fair, reasonable and not unreasonably discriminatory. The
Commission agrees that unfair, unreasonable, or unreasonably
discriminatory fees for this data content would decrease the likelihood
that it would be economically feasible for firms to become competing
consolidators. That in turn would undermine the Commission's goals in
``fostering a competitive environment for the provision and
dissemination of critical market data to investors and other market
participants'' that will ``better achieve the goals of Section 11A of
the Exchange Act and help to ensure broad availability to brokers,
dealers, and investors of information with respect to quotations for
and transactions in NMS stocks that is prompt, accurate, reliable, and
fair.'' \322\
---------------------------------------------------------------------------

    \322\ MDI Rules Release, supra note 11, 86 FR at 18605-06.
---------------------------------------------------------------------------

D. NMS Plan Governance

    Some commenters, including Non-Supporting Participants, state that
the MDI Rules should be implemented through the new CT Plan,\323\
rather than through the existing equity market data plans (i.e., the
CTA/CQ Plans and the Nasdaq/UTP Plan).\324\ One commenter reiterated
its continued support for the provisions of the CT Plan overall.\325\
The commenter states that the real and potential conflicts of interest
that currently exist relating to the provision of market data directly
relate to the decision-making problems at the Plan's Operating
Committee.\326\ One commenter states that the conflicts of interest
that led to the creation of the Proposed Amendment are apparent from
the resounding lack of support it has received from anyone but the
exchange groups that stand to benefit from creating a system where
competing consolidators are not viable.\327\ According to this
commenter, the exchange groups are disincentivized to create a fair and
reasonable fee structure, so additional attempts under the same system
are unlikely to create better results.\328\
---------------------------------------------------------------------------

    \323\ See supra note 18 (describing CT Plan).
    \324\ See BMO Letter, supra note 56; MEMX Letter, supra note 56;
MIAX Letter, supra note 56; IEX Letter, supra note 56; and
Polygon.io Letter I, supra note 126; Polygon.io Letter II, supra
note 66.
    \325\ See BMO Letter, supra note 56, at 1.
    \326\ See id. at 2.
    \327\ See id.
    \328\ See Polygon.io Letter II, supra note 66, at 2.
---------------------------------------------------------------------------

    Another commenter supports expanding the voting representation
under the CT Plan to non-SROs and having them participate as full
voting members of the Operating Committee.\329\ The commenter states
that the Commission cannot approve the Proposed Amendment given the
inherent conflicts of interests of the Filing Participants that
developed the proposals.\330\ The commenter states that, if the
Commission approves the Proposed Amendment, it would be giving tacit
approval to the shortcomings in the governance structure of the current
Plans.\331\ This commenter also states that the proposed fee amendments
are explicitly stated by the Filing Participants to be unrelated to the
cost of providing the data, but instead related to subscriber
value.\332\ The commenter states that this is a clear example of the
Plan's Operating Committee failing to ensure that the public service
mandates of the SIPs are achieved and is a failure in governance
through the unmitigated conflicts of interest by voting members who
just want to maximize profits.\333\ The commenter states that further
evidence of the failure of the governance structure of the Operating
Committee is that the fee proposals have been proposed while the
remaining reforms of the CT Plan are stayed pending resolution of
challenges in federal court.\334\ The commenter states that it is
``somewhat shocking'' that the Proposed Amendment was filed
notwithstanding that other members of the Operating Committee ``have
stated publicly that the proposals contradict the Exchange Act
standards for consolidated data, which require that the fees be fair,
reasonable, and not unreasonably discriminatory.'' \335\
---------------------------------------------------------------------------

    \329\ See BMO Letter, supra note 56, at 2.
    \330\ See id.
    \331\ See id.
    \332\ See id.
    \333\ See id. at 2-3.
    \334\ See id. at 3.
    \335\ Id.
---------------------------------------------------------------------------

    A Non-Supporting Participant also encourages the Commission to
consider whether the CT Plan is a more appropriate body for setting
fees for consolidated market data.\336\ This commenter states that
placing the responsibility for setting fees in the hands of the CT Plan
would allow SIP fees to be set by an operating committee that better
reflects the constituencies affected by the Proposed Amendment,
including non-SRO representatives.\337\ Another Non-Supporting
Participant states that the fee proposals are ``the result of a
conflicted and unbalanced voting process,'' adding that it agrees with
the recommendation that the responsibility for setting the proposed
fees should be placed on the CT Plan.\338\ Another Non-Supporting
Participant recommends that the Commission disapprove the proposal and
reassign responsibility for the filing to the operating committee for
the CT Plan, which the commenter states would have a ``broader set of
voting stakeholders and a fairer and less conflicted governance
structure,'' and argues that the Proposed Amendment shows that this
change is ``badly'' needed.\339\
---------------------------------------------------------------------------

    \336\ See MEMX Letter, supra note 56, at 23-24.
    \337\ See id.
    \338\ MIAX Letter, supra note 56, at 5.
    \339\ IEX Letter, supra note 56, at 5.
---------------------------------------------------------------------------

    One commenter asks the Commission to reevaluate the process that
led to the creation of the Proposed Amendment and to make substantive
changes to avoid the amendment process being used to derail timely
implementation of the MDI Rules.\340\
---------------------------------------------------------------------------

    \340\ See Polygon.io Letter I, supra note 126, at 3.
---------------------------------------------------------------------------

    While some commenters suggest that the CT Plan is the appropriate
mechanism for implementing the changes required by the MDI Rules, that
mechanism is not available at this time because the D.C. Circuit has
vacated the Commission order approving the CT Plan.\341\ And additional
discussion on this topic in this Order is unnecessary, as it does not
bear on the basis for the Commission's decision to disapprove the
Proposed Amendment. On the record before us, for the independently
sufficient reasons discussed in more detail above, we have concluded
that the Filing Participants have not demonstrated that approval of the
proposed NMS plan amendment is necessary or appropriate in the public
interest, for the protection of investors and the maintenance of fair
and orderly markets, to remove impediments to, and perfect the
mechanisms of, a national market system, or otherwise in furtherance of
the purposes of the Act.
---------------------------------------------------------------------------

    \341\ See The Nasdaq Stock Market LLC, et al. v. Securities and
Exchange Commission, supra note 18.
---------------------------------------------------------------------------

E. Consideration of Other Actions Under Rule 608 of Regulation NMS

    In connection with recommending disapproval of the Proposed
Amendment, one commenter states the Commission could consider potential
action under Rule 608(a)(2) of Regulation NMS, which allows the
Commission to directly propose amendments to effective national market
system plans.\342\ The commenter

states that in connection with a Commission disapproval of the Proposed
Amendment, it would ``support the Commission's efforts to ensure that
the newly expanded consolidated market data (i.e., new core data) under
the Commission's Infrastructure Rule is disseminated in a manner
consistent with the Exchange Act standards to ensure the investing
public and all market participants have fair and reasonable access to
it.'' \343\
---------------------------------------------------------------------------

    \342\ See SIFMA Letter I, supra note 56, at 2.
    \343\ Id.
---------------------------------------------------------------------------

    One Filing Commenter states that it would be inconsistent with the
Exchange Act and Rule 608 of Regulation NMS for the Commission to
change sua sponte any or all of the proposed fees, as any such change
would be material to the Proposed Amendment.\344\ This commenter states
that, if the Commission intends to revise the Proposed Amendment in any
material way, it must do so through rulemaking under Rule 608(b)(2) of
Regulation NMS, by providing public notice of the specific changes it
proposes and giving the Plan's participants and the general public an
opportunity to comment.\345\
---------------------------------------------------------------------------

    \344\ See NYSE Letter, supra note 70, at 8.
    \345\ See id.
---------------------------------------------------------------------------

    One commenter states that the Commission should provide guidance in
terms of the requirements of the MDI Rules as well as the application
of the terms ``fair and reasonable'' and ``not unfairly
discriminatory'' in the context of supplying competing consolidators
with the underlying content of consolidated market data, adding that,
without such guidance, any refiling of the amendments will result in
proposals that do not meet standards under the Exchange Act.\346\
---------------------------------------------------------------------------

    \346\ See MayStreet Letter II, supra note 57, at 1-2, 4, 20.
---------------------------------------------------------------------------

    To the extent that these comments bear on potential future
Commission action, rather than on the basis for the Commission's
decision to disapprove the Proposed Amendment, further discussion on
these topics is unnecessary in this Order.

V. Conclusion

    For the reasons set forth above, the Commission does not find,
pursuant to Section 11A of the Act, and Rule 608(b)(2) thereunder, that
the Proposed Amendment is consistent with the requirements of the Act
and the rules and regulations thereunder applicable to an NMS plan
amendment.
    It is therefore ordered, pursuant to Section 11A of the Act, and
Rule 608(b)(2) thereunder, that the Proposed Amendment (File No. S7-24-
89) be, and hereby is, disapproved.

    By the Commission.
J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2022-20831 Filed 9-26-22; 8:45 am]
BILLING CODE 8011-01-P