[Federal Register: November 19, 2009 (Volume 74, Number 222)]
[Notices]
[Page 60002-60006]
[DOCID:fr19no09-80]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60990; File No. SR-NASDAQ-2009-095]

Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Order Granting Accelerated Approval to a Proposed
Rule Change and Amendment No. 1 Thereto To Extend the Pilot Program and
Reduce Fees for NASDAQ Last Sale Data Feeds and To Make a Technical
Correction to NASDAQ Rule 7039

November 12, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on November 3, 2009, The NASDAQ Stock Market LLC (``NASDAQ'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been substantially prepared by the Exchange.
On November 5, 2009, the Exchange submitted Amendment No. 1 to the
proposed rule change. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons,
and is approving the proposal as amended on an accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    NASDAQ is proposing to extend for three months the pilot,
retroactively as of October 1, 2009, that created the NASDAQ Last Sale
(``NLS'') market data products. NLS allows data distributors to have
access to real-time market data for a capped fee, enabling those
distributors to provide free access to the data to millions of
individual investors via the internet and television. Specifically,
NASDAQ offers the ``NASDAQ Last Sale for NASDAQ'' and ``NASDAQ Last
Sale for NYSE/Amex'' data feeds containing last sale activity in U.S.
equities within the NASDAQ Market Center and reported to the jointly-
operated FINRA/NASDAQ Trade Reporting Facility (``FINRA/NASDAQ TRF'').
The purpose of this proposal is to extend the existing pilot program
for three months, retroactively as of October 1, 2009, as well as to
make a drafting error correction to the fee tables in NASDAQ Rule 7039
(NASDAQ Last Sale Data Feeds) concerning the distribution of NASDAQ
Last Sale data products via television for both NASDAQ and NYSE/Amex
that results in the correct lower monthly fee.
    This pilot program supports the aspiration of Regulation NMS to
increase the availability of proprietary data by allowing market forces
to determine the amount of proprietary market data information that is
made available to the public and at what price. During the current
pilot period, the program has vastly increased the availability of
NASDAQ proprietary market data to individual investors. Based upon data
from NLS distributors, Nasdaq believes that since its launch in July
2008, the NLS data has been viewed by over 50,000,000 investors on
websites operated by Google, Interactive Data, and Dow Jones, among
others.
    The text of the proposed rule change is below. Proposed new
language is in italics; proposed deletions are in brackets.\3\
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    \3\ Changes are marked to the rule text that appears in the
electronic NASDAQ Manual found at http://
nasdaqomx.cchwallstreet.com.
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* * * * *
7039. NASDAQ Last Sale Data Feeds
    (a) For a three month pilot period commencing on [July] October 1,
2009, NASDAQ shall offer two proprietary data feeds containing real-
time last sale information for trades executed on NASDAQ or reported to
the NASDAQ/FINRA Trade Reporting Facility.
    (1) ``NASDAQ Last Sale for NASDAQ'' shall contain all transaction
reports for NASDAQ-listed stocks; and
    (2) ``NASDAQ Last Sale for NYSE/Amex'' shall contain all such
transaction reports for NYSE- and Amex-listed stocks.
    (b) Each distributor of the NASDAQ Last Sale Data Feeds may elect
between two alternate fee schedules, depending upon the choice of
distributors to report usage based on either a username/password
entitlement system or a quote counting mechanism or both. All fees for
the NASDAQ Last Sale Data Products are ``stair-stepped'' in that the
fees are reduced for distributors with more users but the lower rates
apply only to users in excess of the specified thresholds rather than
applying to all users once a threshold is met. In addition, there shall
be a maximum fee of $50,000 per month for NASDAQ Last Sale for NASDAQ
and NASDAQ Last Sale for NYSE/Amex.
    (1) Firms that choose to report usage for either a username/
password entitlement system or quote counting mechanism or both shall
elect between paying a fee for each user or a fee for each query. A
firm that elects to pay for each query may cap its payment at the
monthly rate per user. Firms shall pay the following fees:

----------------------------------------------------------------------------------------------------------------
            Users/mo                     Price                Query                         Price
----------------------------------------------------------------------------------------------------------------
                                         (A) NASDAQ Last Sale for NASDAQ
----------------------------------------------------------------------------------------------------------------
1-9,999.........................  $0.60/usermonth....  0-10M..............  $0.003/query.
10,000-49,999...................  $0.48/usermonth....  10M-20M............  $0.0024/query.
50,000-99,999...................  $0.36/usermonth....  20M-30M............  $0.0018/query.
100,000+........................  $0.30/usermonth....  30M+...............  $0.0015/query.
----------------------------------------------------------------------------------------------------------------
                                       (B) NASDAQ Last Sale for NYSE/Amex
----------------------------------------------------------------------------------------------------------------
1-9,999.........................  $0.30/usermonth....  0-10M..............  $0.0015/query.
10,000-49,999...................  $0.24/usermonth....  10M-20M............  $0.0012/query.
50,000-99,999...................  $0.18/usermonth....  20M-30M............  $0.0009/query.
100,000+........................  $0.15/usermonth....  30M+...............  $0.000725/query.
----------------------------------------------------------------------------------------------------------------

     (2) Firms that choose not to report usage based on either a
username/password entitlement system or quote counting mechanism or
both may distribute NASDAQ Last Sale Data Products under alternate fee
schedules depending upon whether they distribute data via the Internet
or via Television:

    (A) The fee for distribution of NASDAQ Last Sale Data Products via
the Internet shall be based upon the number of Unique Visitors to a
website receiving such data. The number of Unique Visitors shall be
validated by a vendor approved by NASDAQ in NASDAQ's sole discretion.

------------------------------------------------------------------------
             Unique visitors                        Monthly fee
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                     (i) NASDAQ Last Sale for NASDAQ
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1-100,000...............................  $0.036/Unique Visitor.
100,000-1M..............................  $0.03/Unique Visitor.
1M+.....................................  $0.024/Unique Visitor.
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                  (iii) NASDAQ Last Sale for NYSE/Amex
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1-100,000...............................  $0.018/Unique Visitor.
100,000-1M..............................  $0.015/Unique Visitor.
1M+.....................................  $0.012/Unique Visitor.
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     (B) Distribution of NASDAQ Last Sale Data Products via Television
shall be based upon the number of Households receiving such data. The
number of Households to which such data is available shall be validated
by a vendor approved by NASDAQ in NASDAQ's sole discretion.

------------------------------------------------------------------------
               Households                           Monthly fee
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                     (i) NASDAQ Last Sale for NASDAQ
------------------------------------------------------------------------
1-1M....................................  $0.00096/Household.
1M-5M...................................  $0.00084/Household.
5M-10M..................................  $0.00072/Household.
10M+....................................  $0.0006/Household.
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                   (ii) NASDAQ Last Sale for NYSE/Amex
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1-1M....................................  $0.00048/Household.
1M-5M...................................  $0.00042/Household.
5M-10M..................................  $0.00036/Household.
10M+....................................  $0.0003/Household.
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     (C) A Distributor that distributes NASDAQ Last Sale Data Products
via multiple distribution mechanisms shall pay all fees applicable to
each distribution mechanism, provided that there shall be a discount
from the applicable Television rate as follows:
    (i) 10 percent reduction in applicable Television fees when a
Distributor reaches the second tier of Users, Queries, or Unique
Visitors for its non-Television users;
    (ii) 15 percent reduction in applicable Television fees when a
Distributor reaches the third tier of Users, Queries, or Unique
Visitors for its non-Television users; and
    (iii) 20 percent reduction in applicable Television fees when a
Distributor reaches the fourth tier of Users, Queries, or Unique
Visitors for its non-Television users.
    (c) All Distributors of a NASDAQ Last Sale Data Feed shall also pay
a monthly fee of $1,500.
* * * * *

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, NASDAQ included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item III below. NASDAQ has prepared summaries, set forth in Sections A,
B, and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Prior to the launch of NLS, public investors that wished to view
market data to monitor their portfolios generally had two choices: (1)
Pay for real-time market data or (2) use free data that is 15 to 20
minutes delayed. To increase consumer choice, NASDAQ proposed a pilot
to offer access to real-time market data to data distributors for a
capped fee, enabling those distributors to disseminate the data via the
Internet and Television at no cost to millions of Internet users and
Television viewers. NASDAQ now proposes a three-month extension of that
pilot program on the same terms as applicable today.\4\
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    \4\ NASDAQ will file a proposed rule change within thirty days
seeking permanent approval of the NLS pilot.
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    The NLS pilot created two separate ``Level 1'' products containing
last sale activity within the NASDAQ market and reported to the
jointly-operated FINRA/NASDAQ TRF. First, the ``NASDAQ Last Sale for
NASDAQ Data Product,'' a real-time data feed that provides real-time
last sale information including execution price, volume, and time for
executions occurring within the NASDAQ system as well as those reported
to the FINRA/NASDAQ TRF. Second, the NASDAQ Last Sale for NYSE/Amex
data product that provides real-time last sale information including
execution price, volume, and time for NYSE- and Amex-securities
executions occurring within the NASDAQ system as well as those reported
to the FINRA/NASDAQ TRF.
    NASDAQ established two different pricing models, one for clients
that are able to maintain username/password entitlement systems and/or
quote counting mechanisms to account for usage, and a second for those
that are not. Firms with the ability to maintain username/password
entitlement systems and/or quote counting mechanisms will be eligible
for a specified fee schedule for the NASDAQ Last Sale for NASDAQ
Product and a separate fee schedule for the NASDAQ Last Sale for NYSE/
Amex Product: Firms that were unable to maintain username/password
entitlement systems and/or quote counting mechanisms will also have
multiple options for purchasing the NASDAQ Last Sale data. These firms
chose between a ``Unique Visitor'' model for internet delivery or a
``Household'' model for television delivery. Unique Visitor and
Household populations must be reported monthly and must be validated by
a third-party vendor or ratings agency approved by NASDAQ at NASDAQ's
sole discretion. In addition, to reflect the growing confluence between
these media outlets, NASDAQ offered a reduction in fees when a single
distributor distributes NASDAQ Last Sale Data Products via multiple
distribution mechanisms.
    Second, NASDAQ established a cap on the monthly fee, currently set
at $50,000 per month for all NASDAQ Last Sale products. The fee cap
enables NASDAQ to compete effectively against other exchanges that also
offer last sale data for purchase or at no charge.
    As with the distribution of other NASDAQ proprietary products, all
distributors of the NASDAQ Last Sale for NASDAQ and/or NASDAQ Last Sale
for NYSE/Amex products would pay a single $1,500/month NASDAQ Last Sale
Distributor Fee in addition to any applicable usage fees. The $1,500
monthly fee will apply to all distributors and will not vary based on
whether the distributor distributes the data internally or externally
or distributes the data via both the Internet and Television.
    Finally, NASDAQ proposes to make a drafting error correction to the
fee tables in NASDAQ Rule 7039 (NASDAQ Last Sale Data Feeds) concerning
the distribution of NASDAQ Last Sale data products via television for
both NASDAQ and NYSE/Amex. The correction results in the lower monthly
fee as originally intended but for a drafting error. Since these
particular market data products have yet to be procured the incorrect
fees have never been assessed and the correction results in no
practical effect.

2. Statutory Basis
    NASDAQ believes that the proposed rule change is consistent with
the provisions of Section 6 of the Act,\5\ in general and with Section
6(b)(4) of the Act,\6\ as stated above, in that it provides an
equitable allocation of reasonable fees among users and recipients of
NASDAQ data. In adopting Regulation NMS, the Commission granted self-
regulatory organizations and broker-dealers increased authority and
flexibility to offer new and unique market data to the public. It was
believed that this authority would expand the amount of data available
to consumers, and also spur innovation and competition for the
provision of market data.
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    \5\ 15 U.S.C. 78f.
    \6\ 15 U.S.C. 78f-3(b)(4).
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    The NASDAQ Last Sale market data products proposed here appear to
be precisely the sort of market data product that the Commission
envisioned when it adopted Regulation NMS. The Commission concluded
that Regulation NMS--by deregulating the market in proprietary data--
would itself further the Act's goals of facilitating efficiency and
competition:

    [E]fficiency is promoted when broker-dealers who do not need the
data beyond the prices, sizes, market center identifications of the
NBBO and consolidated last sale information are not required to
receive (and pay for) such data. The Commission also believes that
efficiency is promoted when broker-dealers may choose to receive
(and pay for) additional market data based on their own internal
analysis of the need for such data.\7\
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    \7\ Securities Exchange Act Release No. 51808 (June 9, 2005), 70
FR 37496 (June 29, 2005).

By removing ``unnecessary regulatory restrictions'' on the ability of
exchanges to sell their own data, Regulation NMS advanced the goals of
the Act and the principles reflected in its legislative history. If the
free market should determine whether, proprietary data is sold to
broker-dealers at all, it follows that the price at which such data is
sold should be set by the market as well.
    NASDAQ's ability to price its Last Sale Data Products is
constrained by (1) competition between exchanges and other trading
platforms that compete with each other in a variety of dimensions; (2)
the existence of inexpensive real-time consolidated data and free
delayed consolidated data, and (3) the inherent contestability of the
market for proprietary last sale data.
    The market for proprietary last sale data products is currently
competitive and inherently contestable because there is fierce
competition for the inputs necessary to the creation of proprietary
data and strict pricing discipline for the proprietary products
themselves. Numerous exchanges compete with each other for listings,
trades, and market data itself, providing virtually limitless
opportunities for entrepreneurs who wish to produce and distribute
their own market data. This proprietary data is produced by each
individual exchange, as well as other entities, in a vigorously
competitive market.
    Broker-dealers currently have numerous alternative venues for their
order flow, including eleven self-regulatory organization (``SRO'')
markets, as well as broker-dealers (``BDs'') and aggregators such as
the DirectEdge electronic communications network (``ECN''). Each SRO
market competes to produce transaction reports via trade executions,
and an ever-increasing number of FINRA-regulated Trade Reporting
Facilities (``TRFs'') compete to attract internalized transaction
reports. It is common for BDs to further and exploit this competition
by sending their order flow and transaction reports to multiple
markets, rather than providing them all to a single market. Competitive
markets for order flow, executions, and transaction reports provide
pricing discipline for the inputs of proprietary data products.
    The large number of SROs, TRFs, and ECNs that currently produce
proprietary data or are currently capable of producing it provides
further pricing discipline for proprietary data products. Each SRO,
TRF, ECN and BD is currently permitted to produce proprietary data
products, and many currently do or have announced plans to do so,
including NASDAQ, NYSE, Amex, NYSEArca, and BATS.
    Any ECN or BD can combine with any other ECN, broker-dealer, or
multiple ECNs or BDs to produce jointly proprietary data products.
Additionally, non-broker-dealers such as order routers like LAVA, as
well as market data vendors can facilitate single or multiple broker-
dealers' production of proprietary data products. The potential sources
of proprietary products are virtually limitless.
    The fact that proprietary data from ECNs, BDs, and vendors can by-
pass SROs is significant in two respects. First, non-SROs can compete
directly with SROs for the production and sale of proprietary data
products, as BATS and Arca did before registering as exchanges by
publishing proprietary book data on the Internet. Second, because a
single order or transaction report can appear in an SRO proprietary
product, a non-SRO proprietary product, or both, the data available in
proprietary products is exponentially greater than the actual number of
orders and transaction reports that exist in the marketplace writ
large.
    Consolidated data provides two additional measures of pricing
discipline for proprietary data products that are a subset of the
consolidated data stream. First, the consolidated data is widely
available in real-time at $1 per month for non-professional users.
Second, consolidated data is also available at no cost with a 15- or
20- minute delay. Because consolidated data contains marketwide
information, it effectively places a cap on the fees assessed for
proprietary data (such as last sale data) that is simply a subset of
the consolidated data. The mere availability of low-cost or free
consolidated data provides a powerful form of pricing discipline for
proprietary data products that contain data elements that are a subset
of the consolidated data, by highlighting the optional nature of
proprietary products.
    Market data vendors provide another form of price discipline for
proprietary data products because they control the primary means of
access to end users. Vendors impose price restraints based upon their
business models. For example, vendors such as Bloomberg and Reuters
that assess a surcharge on data they sell may refuse to offer
proprietary products that end users will not purchase in sufficient
numbers. Internet portals, such as Google, impose a discipline by
providing only that data which will enable them to attract ``eyeballs''
that contribute to their advertising revenue. Retail broker-dealers,
such as Schwab and Fidelity, offer their customers proprietary data
only if it promotes trading and generates sufficient commission
revenue. Although the business models may differ, these vendors'
pricing discipline is the same: they can simply refuse to purchase any
proprietary data product that fails to provide sufficient value. NASDAQ
and other producers of proprietary data products must understand and
respond to these varying business models and pricing disciplines in
order to successfully market proprietary data products.
    In addition to the competition and price discipline described
above, the market for proprietary data products is also highly
contestable because market entry is rapid, inexpensive, and profitable.
The history of electronic trading is replete with examples entrants
that swiftly grew into some of the largest electronic trading platforms
and proprietary data producers: Archipelago, Bloomberg Tradebook,

Island, RediBook, Attain, TracECN, and BATS Trading. Today, BATS
publishes its data at no charge on its Web site in order to attract
order flow, and it uses market data revenue rebates from the resulting
executions to maintain low execution charges for its users.
    Several ECNs have existed profitably for many years with a minimal
share of trading, including Bloomberg Tradebook and NexTrade.
    Regulation NMS, by deregulating the market for proprietary data,
has increased the contestability of that market. While broker-dealers
have previously published their proprietary data individually,
Regulation NMS encourages market data vendors and broker-dealers to
produce proprietary products cooperatively in a manner never before
possible. Multiple market data vendors already have the capability to
aggregate data and disseminate it on a profitable scale, including
Bloomberg, Reuters and Thomson. New entrants are already on the
horizon, including ``Project BOAT,'' a consortium of financial
institutions that is assembling a cooperative trade collection facility
in Europe. These institutions are active in the United States and could
rapidly and profitably export the Project Boat technology to exploit
the opportunities offered by Regulation NMS.
    In establishing the price for the NASDAQ Last Sale Products, NASDAQ
considered the competitiveness of the market for last sale data and all
of the implications of that competition. NASDAQ believes that it has
considered all relevant factors and has not considered irrelevant
factors in order to establish a fair, reasonable, and not unreasonably
discriminatory fee and an equitable allocation of fees among all users.

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

    NASDAQ does not believe that the proposed rule change will result
in any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended. To the contrary,
the NASDAQ Last Sale Products respond to and enhance competition that
already exists in the market.
    On May 28, 2008, the internet portal Yahoo! announced that it would
offer its website viewers real-time last sale data provided by BATS
Trading. NASDAQ's last sale data products would compete directly with
the BATS product disseminated via Yahoo!. Since that time, BATS has
attracted additional purchasers of its last sale product that is free
or charge or, at least, has not been the subject of a proposed rule
change..
    In addition, as set forth above, the market for last sale data is
already competitive, with both real-time and delayed consolidated data
as well as the ability for innumerable entities begin rapidly and
inexpensively to offer competitive last sale data products. Moreover,
the New York Stock Exchange distributes competing last sale data
products and has reduced the price of its product. Under the
deregulatory regime of Regulation NMS, there is no limit to the number
of competing products that can be developed quickly and at low cost.
The Commission should not stand in the way of enhanced competition.

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

    Three comment letters were filed regarding the proposed rule change
as originally published for comment NASDAQ responded to these comments
in a letter dated December 13, 2007. Both the comment letters and
NASDAQ's response are available on the SEC Web site at: http://
www.sec.gov/comments/sr-nasdaq-2006-060/nasdaq2006060.shtml.

III. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-NASDAQ-2009-095 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2009-095. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/
rules/sro.shtml). Copies of the submission, all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for inspection
and copying in the Commission's Public Reference Room, on official
business days between the hours of 10 a.m. and 3 p.m. Copies of the
filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-NASDAQ-2009-095 and should be submitted on or before
December 10, 2009.

IV. Commission's Findings and Order Granting Accelerated Approval of a
Proposed Rule Change

    The Commission finds that the proposed rule change, to extend the
pilot program for three months, is consistent with the requirements of
the Act and the rules and regulations thereunder applicable to a
national securities exchange.\8\ In particular, it is consistent with
Section 6(b)(4) of the Act,\9\ which requires that the rules of a
national securities exchange provide for the equitable allocation of
reasonable dues, fees, and other charges among its members and issuers
and other parties using its facilities, and Section 6(b)(5) of the
Act,\10\ which requires, among other things, that the rules of a
national securities exchange be designed to promote just and equitable
principles of trade, to remove impediments to and perfect the mechanism
of a free and open market and a national market system and, in general,
to protect investors and the public interest, and not be designed to
permit unfair discrimination between customers, issuers, brokers, or
dealers.
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    \8\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \9\ 15 U.S.C. 78f(b)(4).
    \10\ 15 U.S.C. 78f(b)(5).
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    The Commission also finds that the proposed rule change is
consistent with the provisions of Section 6(b)(8) of the Act,\11\ which
requires that the rules of an exchange not impose any burden on
competition not necessary or

appropriate in furtherance of the purposes of the Act. Finally, the
Commission finds that the proposed rule change is consistent with Rule
603(a) of Regulation NMS,\12\ adopted under Section 11A(c)(1) of the
Act, which requires an exclusive processor that distributes information
with respect to quotations for or transactions in an NMS stock to do so
on terms that are fair and reasonable and that are not unreasonably
discriminatory.\13\
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    \11\ 15 U.S.C. 78f(b)(8).
    \12\ 17 CFR 242.603(a).
    \13\ NASDAQ is an exclusive processor of its last sale data
under Section 3(a)(22)(B) of the Act, 15 U.S.C. 78c(a)(22)(B), which
defines an exclusive processor as, among other things, an exchange
that distributes data on an exclusive basis on its own behalf.
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    The Commission approved the fee for the NASDAQ Last Sale Data Feeds
for a pilot period which ran until September 30, 2009.\14\ The
Commission notes that the Exchange proposes to extend the pilot program
for three months, with such extension retroactive to October 1, 2009.
The Commission did not receive any comments on the previous extensions
of the pilot program.\15\
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    \14\ See Securities Exchange Act Release Nos. 57965 (June 16,
2008), 73 FR 35178 (June 20, 2008) (SR-NASDAQ-2006-060); 58894
(October 31, 2008), 73 FR 66953 (November 12, 2008) (SR-NASDAQ-2008-
086); 59186 (December 30, 2008), 74 FR 743 (January 7, 2009) (SR-
NASDAQ-2008-103); 59652 (March 31, 2009) 74 FR 15533 (April 6, 2009)
(SR-NASDAQ-2009-027); 60201 (June 30, 2009), 74 FR 32670 (July 8,
2009) (SR-NASDAQ-2009-062).
    \15\ Id.
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    On December 2, 2008, the Commission issued an approval order
(``Order'') that sets forth a market-based approach for analyzing
proposals by self-regulatory organizations to impose fees for ``non-
core'' market data products, such as the NASDAQ Last Sale Data
Feeds.\16\ The Commission believes that Nasdaq's proposal to
temporarily extend the pilot program to December 31, 2009 is consistent
with the Act for the reasons noted in the Order.\17\ The Commission
believes that approving NASDAQ's proposal to temporarily extend the
pilot program that imposes a fee for the NASDAQ Last Sale Data Feeds
for an additional three months will be beneficial to investors and in
the public interest, in that it is intended to allow continued broad
public dissemination of increased real-time pricing information.
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    \16\ See Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770 (December 9, 2008) (Order Setting Aside Action by
Delegated Authority and Approving Proposed Rule Change Relating to
NYSE Arca Data).
    \17\ See supra note 14.
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    The Commission finds good cause for approving the proposed rule
change before the thirtieth day after the date of publication of notice
of filing thereof in the Federal Register. Accelerating approval of
this proposal is expected to benefit investors by continuing to
facilitate their access to widespread, free, real-time pricing
information contained in the NASDAQ Last Sale Data Feeds. Therefore,
the Commission finds good cause, consistent with Section 19(b)(2) of
the Act,\18\ to approve the proposed rule change as amended on an
accelerated basis and retroactively to October 1, 2009.
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    \18\ 15 U.S.C. 78s(b)(2).
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V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
that the proposed rule change (SR-NASDAQ-2009-095) as amended is hereby
approved on an accelerated basis.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\19\
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    \19\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-27746 Filed 11-18-09; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register Volume 76, Number 8 (Wednesday, January 12, 2011)]
[Notices]
[Pages 2106-2107]
[FR Doc No: 2011-498]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OECA-2007-0468; FRL-9251-4]

Agency Information Collection Activities; Submission to OMB for
Review and Approval; Comment Request; Environmental Impact Assessment
of Nongovernmental Activities in Antarctica; EPA ICR No. 1808.06, OMB
Control No. 2020-0007

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: In compliance with the Paperwork Reduction Act (PRA)(44 U.S.C.
3501 et seq.), this document announces that an Information Collection
Request (ICR) has been forwarded to the Office of Management and Budget
(OMB) for review and approval. This is a request to renew an existing
approved collection. The ICR, which is abstracted below, describes the
nature of the information collection and its estimated burden and cost.

DATES: Additional comments may be submitted on or before February 11,
2011.

ADDRESSES: Submit your comments, referencing Docket ID No. EPA-HQ-OECA-
2007-0468, to (1) EPA online using http://www.regulations.gov (our
preferred method), by e-mail to docket.oeca.epa.gov or by mail to: EPA
Docket Center, Environmental Protection Agency, Enforcement and
Compliance Docket, Environmental Protection Agency, Mailcode: 2822T,
and (2) OMB by mail to: Office of Information and Regulatory Affairs,
Office of Management and Budget (OMB), Attention: Desk Officer for EPA,
725 17th Street, NW., Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Aimee Hessert, NEPA Compliance
Division, Office of Federal Activities, 2252A, Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone
number:<PHONE_NUMBER>; fax number:<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: EPA has submitted the following ICR to OMB
for review and approval according to the procedures prescribed in 5 CFR
1320.12. On July 30, 2010, (75 FR 44944), EPA sought comments on this
ICR pursuant to 5 CFR 1320.8(d). EPA received 1 comment during the
comment period, which is addressed in the ICR. Any additional comments
on this ICR should be submitted to EPA and OMB within 30 days of this
notice.
    EPA has established a public docket for this ICR under Docket ID
No. EPA-HQ-OECA-2007-0468, which is available for online viewing at
http://www.regulations.gov, or in person viewing at the Enforcement and
Compliance Docket in the EPA Docket Center (EPA/DC), EPA West, Room
3334, 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public
Reading Room is open from 8 a.m. to 4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone number for the Reading Room is
202-566-1744, and the telephone number for the Enforcement and
Compliance Docket is<PHONE_NUMBER>.
    Use EPA's electronic docket and comment system at http://www.regulations.gov, to submit or view public comments, access the
index listing of the contents of the docket, and to access those
documents in the docket that are available electronically. Once in the
system, select ``docket search,'' then key in the docket ID number
identified above. Please note that EPA's policy is that public
comments, whether submitted electronically or in paper, will be made
available for public viewing at http://www.regulations.gov as EPA
receives them and without change, unless the comment contains
copyrighted material, confidential business information (CBI), or other
information whose public disclosure is restricted by statute. For
further information about the electronic docket, go to http://www.regulations.gov.
    Title: Environmental Impact Assessment of Nongovernmental
Activities in Antarctica.
    ICR numbers: EPA ICR No. [1808.06], OMB Control No. 2020-0007.
    ICR Status: This ICR is scheduled to expire on January 31, 2011.
Under OMB regulations, the Agency may continue to conduct or sponsor
the collection of information while this submission is pending at OMB.
An Agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information, unless it displays a currently
valid OMB control number. The OMB control numbers for EPA's regulations
in title 40 of the CFR, after appearing in the Federal Register when

approved, are listed in 40 CFR part 9, are displayed either by
publication in the Federal Register or by other appropriate means, such
as on the related collection instrument or form, if applicable. The
display of OMB control numbers in certain EPA regulations is
consolidated in 40 CFR part 9.
    Abstract: The Environmental Protection Agency's (EPA's) regulations
at 40 CFR part 8, Environmental Impact Assessment of Nongovernmental
Activities in Antarctica (Rule), were promulgated pursuant to the
Antarctic Science, Tourism, and Conservation Act of 1996 (Act), 16
U.S.C. 2401 et seq., as amended, 16 U.S.C. 2403a, which implements the
Protocol on Environmental Protection (Protocol) to the Antarctic Treaty
of 1959 (Treaty). The Rule provides for assessment of the environmental
impacts of nongovernmental activities in Antarctica, including tourism,
for which the United States is required to give advance notice under
Paragraph 5 of Article VII of the Treaty, and for coordination of the
review of information regarding environmental impact assessments
received from other Parties under the Protocol. The requirements of the
Rule apply to operators of nongovernmental expeditions organized or
proceeding from the territory of the United States to Antarctica and
include commercial and non-commercial expeditions. Expeditions may
include ship-based tours; yacht, skiing or mountaineering expeditions;
privately funded research expeditions; and other nongovernmental
activities. The Rule does not apply to individual U.S. citizens or
groups of citizens planning travel to Antarctica on an expedition for
which they are not acting as an operator. The provisions of the Rule
are intended to ensure that potential environmental effects of
nongovernmental activities undertaken in Antarctica are appropriately
identified and considered by the operator during the planning process
and that to the extent practicable appropriate environmental safeguards
which would mitigate or prevent adverse impacts on the Antarctic
environment are identified by the operator.
    Environmental Documentation: Persons subject to the Rule must
prepare environmental documentation to support the operator's
determination regarding the level of environmental impact of the
proposed expedition. Environmental documentation includes a Preliminary
Environmental Review Memorandum (PERM), an Initial Environmental
Evaluation (IEE), or a Comprehensive Environmental Evaluation (CEE).
The environmental document is submitted to the Office of Federal
Activities (OFA). If the operator determines that an expedition may
have: (1) Less than a minor or transitory impact, a PERM needs to be
submitted no later than 180 days before the proposed departure to
Antarctica; (2) no more than minor or transitory impacts, an IEE needs
to be submitted no later than 90 days before the proposed departure; or
(3) more than minor or transitory impacts, a CEE needs to be submitted.
Operators who anticipate such activities are encouraged to consult with
EPA as soon as possible regarding the date for submittal of the CEE.
The Protocol and the Rule also require an operator to employ procedures
to assess and provide a regular and verifiable record of the actual
impacts of an activity which proceeds on the basis of an IEE or CEE.
Moreover, an operator needs to monitor key environmental indicators for
an activity proceeding on the basis of a CEE. An operator may also need
to carry out monitoring in order to assess and verify the impact of an
activity for which an IEE would be prepared. For activities that
require an IEE, an operator should be able to use procedures currently
being voluntarily utilized by operators to provide the required
information. In cases of emergency related to the safety of human life
or of ships, aircraft, equipment and facilities of high value, or the
protection of the environment which would require an activity to be
undertaken without completion of the documentation procedures set out
in the Rule, the operator would need to notify the Department of State
within 15 days of any activities which would have otherwise required
preparation of a CEE, and provide a full explanation of the activities
carried out within 45 days of those activities. Environmental documents
(e.g., PERM, IEE, CEE) are submitted to OFA. Environmental documents
are reviewed by OFA, in consultation with the National Science
Foundation and other interested Federal agencies, and also made
available to other Parties and the public as required under the
Protocol or otherwise requested.
    Burden Statement: The annual public reporting and recordkeeping
burden for this collection of information is estimated to average 1,708
hours annually, or 78 hours per response. Burden means the total time,
effort, or financial resources expended by persons to generate,
maintain, retain, or disclose or provide information to or for a
Federal agency. This includes the time needed to review instructions;
develop, acquire, install, and utilize technology and systems for the
purposes of collecting, validating, and verifying information,
processing and maintaining information, and disclosing and providing
information; adjust the existing ways to comply with any previously
applicable instructions and requirements which have subsequently
changed; train personnel to be able to respond to a collection of
information; search data sources; complete and review the collection of
information; and transmit or otherwise disclose the information.
    Respondents/Affected Entities: Nongovernmental operators with
activities in Antarctica.
    Estimated Number of Respondents: 22.
    Frequency of Response: Annual.
    Estimated Total Annual Burden Hours: 1,708 hours.
    Estimated Total Annual Cost: $136,675, includes $4,256 annualized
capital or O&M costs.
    Changes in the Estimates: There is an increase of 45 hours in the
total estimated burden currently identified in the OMB Inventory of
Approved ICR Burdens. This increase is the result of a change in the
type of environmental documentation EPA anticipates the respondents
will submit.

    Dated: January 6, 2011.
John Moses,
Director, Collection Strategies Division.
[FR Doc. 2011-498 Filed 1-11-11; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: September 12, 2007 (Volume 72, Number 176)]
[Notices]
[Page 52099-52100]
[DOCID:fr12se07-73]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[P-432-113]

Progress Energy Carolinas, Inc.; Notice of Application for
Temporary Amendment of License and Soliciting Comments, Motions to
Intervene, and Protests

August 31, 2007.
    Take notice that the following hydroelectric application has been
filed with the Commission and is available for public inspection:
    a. Type of Application: Request for temporary variance of reservoir
elevation, dissolved oxygen and minimum flow release requirements.
    b. Project No.: 432-113.
    c. Date Filed: August 27, 2007.
    d. Applicant: Progress Energy Carolinas, Inc.
    e. Name of Project: Walters Hydroelectric Project.
    f. Location: On the Pigeon River, in Haywood County, North
Carolina, just upstream of the State of Tennessee.
    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791a-825r.
    h. Applicant Contact: Larry Mann, Progress Energy Carolinas Inc.,
179 Tillery Dam Road, Mount Gilead, NC 27306,<PHONE_NUMBER> extension
1202.
    i. FERC Contact: Andrea Claros,<PHONE_NUMBER>; e-mail:
<EMAIL_ADDRESS>
    j. Deadline for filing comments, motions to intervene and protests:
October 1, 2007.
    Please include the project number (P-432) on any comments or
motions filed. All documents (original and eight copies) should be
filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory
Commission, 888 First Street NE., Washington, DC 20426.
    Comments, protests, and interventions may be filed electronically
via the Internet in lieu of paper, see 18 CFR 385.2001(a)(1)(iii) and
the instructions on the Commission's web site under the ``e-filing''
link. The Commission strongly encourages electronic filings.
    The Commission's Rules of Practice and Procedure require all
intervenors filing documents with the Commission to serve a copy of
that document on each person whose name appears on the official service
list for the project. Further, if an intervenor files comments or
documents with the Commission relating to the merits of an issue that
may affect the responsibilities of a particular resource agency, they
must also serve a copy of the document on that resource agency. A copy
of any motion to intervene must also be served upon each representative
of the Applicant specified in the particular application.
    k. Description of Request: Progress Energy Carolinas is requesting
a temporary variance of the requirements for lake level, dissolved
oxygen and minimum flow. Due to persistent drought conditions in the
project area and the need to maintain a minimum reservoir elevation to
prevent erosion of dioxin laden lake sediments, Progress Energy
requests that it be allowed to reduce flow releases below the minimum
flow requirement of 100 cubic feet per second if the Walters Lake
reaches an elevation of 2234 feet, and to stop all releases from the
powerhouse if Walters Lake reaches elevation 2232 feet. Only flows from
Big Creek, the 12 mile bypassed reach of the Pigeon River, and other
small tributaries will provide flow. Progress Energy proposes to resume
minimum flow releases when Walters Lake is at and above an elevation of
2236 feet. The licensee proposes to limit complete shutdown of flow
releases to periods not to exceed 7 days at elevation above 2232 feet.
Progress Energy has consulted with Tennessee Wildlife Resources Agency
and the North Carolina Department of Environment and Natural Resources.
These agencies concur with the request. On August 31, 2007, the
Commission granted the licensee's requests, but reserved authority to
require changes in project operation based upon comments received from
this notice.
    l. Location of the Application: The filing is available for
inspection and reproduction at the Commission's Public Reference Room,
located at 888 First Street, NE., Room 2A, Washington, DC 20426 or by
calling<PHONE_NUMBER>, or by calling<PHONE_NUMBER>. This filing may
also be viewed on the Commission's Web site at http://ferc.gov using

the ``eLibrary'' link. Enter the docket number excluding the last three
digits in the docket number field to access the document. You may also
register online at http://www.ferc.gov/docsfiling/esubscription.asp to

be notified via e-mail or new filings and issuances related to this or
other pending projects. For assistance, call 1-866-208-3676 or email
<EMAIL_ADDRESS>for TTY, call<PHONE_NUMBER>. A copy is

also available for inspection and reproduction at the address in item
(h) above.
    m. Individuals desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.

    n. Comments, Protests, or Motions to Intervene: Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210,
385.211, and 385.214. In determining the appropriate action to take,
the Commission will consider all protests or other comments filed, but
only those who file a motion to intervene in accordance with the
Commission's Rules may become a party to the proceeding. Any comments,
protests, or motions to intervene must be received on or before the
specified comment date for the particular application.
    o. Any filing must bear in all capital letters the title
``COMMENTS'', ``PROTEST'', or ``MOTION TO INTERVENE'', as applicable,
and the Project Number of the particular application to which the
filing refers.
    p. Agency Comments: Federal, State, and local agencies are invited
to file comments on the described application. A copy of the
application may be obtained by agencies directly from the Applicant. If
an agency does not file comments within the time specified for filing
comments, it will be presumed to have no comments. One copy of an
agency's comments must also be sent to the Applicant's representatives.
    q. Comments, protests and interventions may be filed electronically
via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and
the instructions on the Commission's Web site at http://www.ferc.gov

under the ``e-Filing'' link.

Kimberly D. Bose,
Secretary.
 [FR Doc. E7-17924 Filed 9-11-07; 8:45 am]

BILLING CODE 6717-01-P