[Federal Register Volume 77, Number 138 (Wednesday, July 18, 2012)]
[Notices]
[Page 42310]
[FR Doc No: 2012-17501]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9700-8]

Proposed CERCLA Administrative Cost Recovery Settlement; City of
Middletown, CT and RLO Properties, Inc., Omo Manufacturing Site,
Middletown, CT

AGENCY: Environmental Protection Agency.

ACTION: Notice of proposed settlement; request for public comment.

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SUMMARY: Notice is hereby given of a proposed administrative settlement
for recovery of response costs under CERCLA, concerning the Omo
Manufacturing Superfund Site in Middletown, Connecticut with the
following settling parties: City of Middletown, Connecticut and RLO
Properties, Inc. The settlement requires: (1) The City of Middletown,
Connecticut to pay $2,800,000 to the Hazardous Substance Superfund in
five equal payments, with interest, over time; and (2) RLO Properties,
Inc. to provide EPA and its representatives and contractors access at
all reasonable times to the Site and to any other property owned or
controlled by RLO Properties, Inc. to which access is determined by EPA
to be required for the implementation of the settlement.

SUPPLEMENTARY INFORMATION: In accordance with Section 122(i) of the
Comprehensive Environmental Response Compensation, and Liability Act,
as amended (``CERCLA''), 42 U.S.C. Section 9622(i), notice is hereby
given of a proposed administrative settlement for recovery of response
costs under CERCLA Section 122(h)(1) and 104(e)(6), concerning the Omo
Manufacturing Superfund Site in Middletown, Connecticut with the
following settling parties: City of Middletown, Connecticut and RLO
Properties, Inc. The settlement requires: (1) the City of Middletown,
Connecticut to pay $2,800,000 to the Hazardous Substance Superfund in
five equal payments, with interest, over time; and (2) RLO Properties,
Inc. to provide EPA and its representatives and contractors access at
all reasonable times to the Site and to any other property owned or
controlled by RLO Properties, Inc. to which access is determined by EPA
to be required for the implementation of the settlement. The settlement
includes a covenant not to sue pursuant to Sections 106 and 107(a) of
CERCLA, 42 U.S.C. 9606 and 9607, relating to the Site, and protection
from contribution actions or claims as provided by Sections 113(f)(2)
and 122(h)(4) of CERCLA, 42 U.S.C. 9613(f)(2) and 9622(h)(4). The
settlement has been approved by the Environmental and Natural Resources
Division of the United States Department of Justice. For thirty (30)
days following the date of publication of this notice, the Agency will
receive written comments relating to the settlement. The United States
will consider all comments received and may modify or withdraw its
consent to the settlement if comments received disclose facts or
considerations which indicate that the settlement is inappropriate,
improper, or inadequate. The Agency's response to any comments received
will be available for public inspection at 5 Post Office Square,
Boston, MA 02109-3912.

DATES: Comments must be submitted by August 17, 2012 of this notice.

ADDRESSES: Comments should be addressed to Cynthia Lewis, Senior
Enforcement Counsel, U.S. Environmental Protection Agency, 5 Post
Office Square, Suite 100 (OES04-3), Boston, MA 02109-3912 (Telephone
No.<PHONE_NUMBER>) and should refer to: In re: Omo Manufacturing
Superfund Site, U.S. EPA Docket No. 01-2012-0040.

FOR FURTHER INFORMATION CONTACT: A copy of the proposed settlement may
be obtained from Cynthia Lewis, Senior Enforcement Counsel, U.S.
Environmental Protection Agency, 5 Post Office Square, Suite 100
(OES04-3), Boston, MA 02109-3912 (Telephone No.<PHONE_NUMBER>); Email
lewis.cindy@epa.gov).

    Dated: June 26, 2012.
James T. Owens, III,
Director, Office of Site Remediation and Restoration, Region 1.
[FR Doc. 2012-17501 Filed 7-17-12; 8:45 am]
BILLING CODE 6560-50-P


  U.S. Environmental Protection Agency
    stratospheric ozone protection program
                         class i controlled substance
                  laboratory certification report (Sec 82.13)
SECTION 1
LABORATORY IDENTIFICATION
1.1 Date of Submission

1.2  Original Submittal   Re-submittal
1.3  Number of Class I Substances Reported

1.4 Number of Pages Submitted

1.5 Laboratory Information
Laboratory Name
Street Address

City
State
Zip Code
1.6 Laboratory Contact Identification
 Reporting Laboratory Contact Person
Phone Number
Fax Number
E-mail Address
1.7 Signature of Reporting Laboratory Representative
I certify that the quantities of controlled substances listed in this form are purchased solely for use in laboratory applications and will not be resold or used in manufacturing.

I certify under penalty of law that I have personally examined and am familiar with the information submitted in this and all attached documents, and that based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete.  I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment.
Name
Title
Signature

Date

SEND COMPLETED FORMS TO:
The Company from Whom the
Class I Substances Were Purchased

Information in reports submitted in compliance with the final rule may be claimed as confidential.  A company may assert a claim of confidentiality for information submitted by clearly marking that information as confidential.  Such information shall be treated in accordance with EPA's procedures for information claimed as confidential at 40 CFR Part 2, Subpart B, and will only be disclosed by the means set forth in the subpart.  If no claim of confidentiality accompanies the report when it is received by EPA, it may be made public without further notice to the company (40 CFR 2.203).

The public reporting and recordkeeping burden for this collection of information is estimated to average 2.1 hours per response.  Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques to the Director, Collection Strategies Division, U.S. Environmental Protection Agency (2822T), 1200 Pennsylvania Ave., NW, Washington, D.C. 20460.  Include the OMB control number in any correspondence.  Do not send the completed form to this address.

  U.S. Environmental Protection Agency

     stratospheric ozone protection program
                         class i controlled substance
                  laboratory certification report (Sec 82.13)
SECTION 2
SUBSTANCE IDENTIFICATION AND USE
(Reproduce Additional Sheets as Needed)
2.1 Lab Name

2.2 Class I Substance   (Select only one below)
                                                                         CFC-11

                                                                         CFC-12

                                                                         CFC-13

                                                                        CFC-111

                                                                        CFC-112

                                                                        CFC-113

                                                                        CFC-114

                                                                        CFC-115

                                                     Other CFC (please specify)

                                                          HBFC (please specify)

                                                         Halon (please specify)

                                                           Carbon Tetrachloride

                                                              Methyl Chloroform

                                                                          CBM

                                                                 Methyl Bromide

2.3 Amount of Class I Substance (kg)

2.4 Laboratory Applications (Select as many as apply and indicate percent use)
 A. Research and Development
     Reaction Solvent or Reaction Feedstock.......................................................
B. Analytical Uses and Regulated Applications
       Reference
         Chemical.............................................................................................
       Toxicant...............................................................................................
          Product................................................................................................
       Extraction
      Pesticide and Heavy Metal Detection.................................................	G ____%
     Product................................................................................................
     Color & Food Additive Detection.........................................................
       Diluent
         Zinc, Copper, Cadmium Detection in Plants and Food.......................
         Microchemical Methods to Determine Molecular Weight of Oxygen...
         Measuring Drug Purity and Residual Information................................
     Sterilization of Lab Equipment............................................................
       Carrier (Inert)
         Forensic Methods................................................................................
         Titration...............................................................................................
         Analytical Equipment...........................................................................
       Tracer
     Sanitary Engineering...........................................................................
       Miscellaneous (Including Testing)
         Ingredient in Material for Testing........................................................
          Separation Media................................................................................
 C.  Miscellaneous
      Laboratory Method Development.............................................
      Sample Preparation Using Solvent...........................................

            %

            %
            %
            %

            %
            %
            %

            %
            %
            %
            %

            %
            %
            %

            %

            %
            %

            %
            %

SECTION 3
 SUPPLIER IDENTIFICATION
 3.1 Supplier Name


[Federal Register Volume 82, Number 60 (Thursday, March 30, 2017)]
[Notices]
[Pages 15741-15749]
[FR Doc No: 2017-06258]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-80311; File No. SR-NYSE-2016-45]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing of Partial Amendment No. 4 and Order Granting
Accelerated Approval of a Proposed Rule Change, as Modified by
Amendment Nos. 1 Through 4, To Amend the Co-Location Services Offered
by the Exchange To Add Certain Access and Connectivity Fees

March 24, 2017.

I. Introduction

    On July 29, 2016, the New York Stock Exchange LLC (``NYSE'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to amend the co-location services offered by the
Exchange to add certain access and connectivity fees, applicable to
Users \3\ in the Exchange's data center in

Mahwah, NJ (``Data Center''). The Exchange proposed to: (1) Provide
additional information regarding access to the trading and execution
systems of the Exchange and its affiliated SROs, and establish fees for
connectivity to certain NYSE, NYSE Arca, and NYSE MKT market data
feeds; and (2) provide and establish fees for connectivity to data
feeds from third party markets and other content service providers
(``Third Party Data Feeds''); access to the trading and execution
services of Third Party markets and other content service providers
(``Third Party Systems''); connectivity to Depository Trust & Clearing
Corporation (``DTCC'') services; connectivity to third party testing
and certification feeds; and the use of virtual control circuits
(``VCCs'').
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ For purposes of the Exchange's co-location services, a
``User'' means any market participant that requests to receive co-
location services directly from the Exchange. See Securities
Exchange Act Release No. 76008 (September 29, 2015), 80 FR 60190
(October 5, 2015) (SR-NYSE-2015-40). As specified in the Price List,
a User that incurs co-location fees for a particular co-location
service pursuant thereto would not be subject to co-location fees
for the same co-location service charged by the Exchange's
affiliates NYSE MKT LLC (``NYSE MKT'') and NYSE Arca, Inc. (``NYSE
Arca''). See Securities Exchange Act Release No. 70206 (August 15,
2013), 78 FR 51765 (August 21, 2013) (SR-NYSE-2013-59).
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    The Commission published the proposed rule change for comment in
the Federal Register on August 17, 2016.\4\ On August 16, 2016, the
Exchange filed Amendment No. 1 to the proposed rule change, which was
published for comment in the Federal Register on September 26, 2016.\5\
The Commission received one comment letter in response to the proposed
rule change, as modified by Amendment No. 1, to which the Exchange
responded on September 23, 2016.\6\ On October 4, 2016, the Commission
extended the time period within which to approve the proposed rule
change, disapprove the proposed rule change, or institute proceedings
to determine whether to approve or disapprove the proposed rule change
to November 15, 2016.\7\
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    \4\ See Securities Exchange Act Release No. 34-78556 (August 11,
2016), 81 FR 54877.
    \5\ See Securities Exchange Act Release No. 34-78887 (September
20, 2016), 81 FR 66095. (``First Amended Notice'').
    Amendment No. 1 superseded and replaced the proposed rule change
in its entirety, but notably: (i) Amended the third party data feed
MSCI from 20 Gigabits (``Gb'') to 25 Gb and amended the price from
$2000 to $1200; (ii) clarified the costs associated with providing a
greater amount of bandwidth for Premium NYSE Data Products for a
particular market as compared to the bandwidth requirements for the
Included Data Products for that same market; (iii) provided further
details on Premium NYSE Data Products, including their composition,
product release dates, and further detail on the reasonableness of
their applicable fees; (iv) added an explanation for the varying fee
differences for the same Gb usage for third party data feeds, DTCC,
and VCCs.
    \6\ See letter to Brent J. Fields, Secretary, Commission, from
John Ramsay, Chief Market Policy Officer, Investors Exchange LLC
(``IEX I Letter''), dated September 9, 2016.
     Responding to the IEX I Letter, see letter to Brent J. Fields,
Commission, from Martha Redding, Associate General Counsel and
Assistant Secretary, NYSE, dated September 23, 2016 (``Response
Letter I''), available at https://www.sec.gov/comments/sr-nyse-2016-45/nyse201645-3.pdf.
    \7\ See Securities Exchange Act Release No. 34-78966 (September
28, 2016), 81 FR 68475.
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    On November 2, 2016, the Exchange filed partial Amendment No. 2 to
the proposed rule change.\8\ On November 21, 2016, the Commission
instituted proceedings (``Order Instituting Proceedings'' or ``OIP'')
to determine whether to approve or disapprove the proposed rule change,
as modified by Amendment Nos. 1 and 2.\9\ The proposed rule change, as
modified by Amendment Nos. 1 and 2, is referred to as the ``Prior
Proposal.''
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    \8\ In partial Amendment No. 2 the Exchange addressed (1) the
benefits offered by the Premium NYSE Data Products that are not
present in the Included Data Products (2) how Premium NYSE Data
Products are related to the purpose of co-location, (3) the
similarity of charging for connectivity to Third Party Systems and
DTCC and charging for connectivity to Premium NYSE Data Products and
(4) the costs incurred by the Exchange in providing connectivity to
Premium NYSE Data Products to Users in the Data Center. Amendment
No. 2 is available on the Commission's Web site at https://www.sec.gov/comments/sr-nyse-2016-45/nyse201645-4.pdf.
    \9\ See Securities Exchange Act Release 34-79316 (November 15,
2016), 81 FR 83303.
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    On December 9, 2016, the Exchange filed Amendment No. 3 to the
proposed rule change.\10\ Amendment No. 3, which superseded and
replaced the Prior Proposal in its entirety, was published for comment
in the Federal Register on December 29, 2016.\11\
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    \10\ Amendment No. 3, as filed by the Exchange, is available on
the Commission's Web site at https://www.sec.gov/comments/sr-nyse-2016-45/nyse201645-5.pdf.
    \11\ See Securities Exchange Act Release No. 34-79674 (December
22, 2016), 81 FR 96053 (``Notice of Amendment No. 3'').
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    The Commission received seven additional comment letters following
publication of the Order Instituting Proceedings.\12\ Some of these
comment letters addressed only the Prior Proposal, and some addressed
the Prior Proposal, as modified by Amendment No. 3. The Exchange
responded to the comment letters submitted after the OIP in letters
dated January 17, 2017 and February 13, 2017.\13\
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    \12\ See letter to Brent J. Fields, Commission, from Adam C.
Cooper, Senior Managing Director and Chief Legal Officer, Citadel
Securities, dated December 12, 2016 (``Citadel Letter''); letter to
Brent J. Fields, Commission, from Melissa MacGregor, Managing
Director and Associate General Counsel, SIFMA, dated December 12,
2016 (``SIFMA I Letter''); letter to Brent J. Fields, Commission,
from Joe Wald, Chief Executive Officer, Clearpool Group, dated
December 16, 2016 (``Clearpool Letter''); letter to Brent J. Fields,
Secretary, Commission, from John Ramsay, Chief Market Policy
Officer, Investors Exchange LLC, dated December 21, 2016 (``IEX II
Letter''); letter to Brent J. Fields, Commission, from David L.
Cavicke, Chief Legal Officer, Wolverine LLC (``Wolverine Letter'');
letter to Bent J. Fields, Secretary, Commission, from Stefano
Durdic, Managing Director, R2G Services, LLC, dated January 21, 2017
(``R2G Letter''); letter to Brent J. Fields, Commission, from
Melissa MacGregor, Managing Director and Associate General Counsel,
SIFMA, dated February 6, 2017 (``SIFMA II Letter''). All comments
received by the Commission on the proposed rule change are available
on the Commission's Web site at: https://www.sec.gov/comments/sr-nyse-2016-45/nyse201645.shtml.
    \13\ See letter to Brent J. Fields, Commission, from Martha
Redding, Associate General Counsel and Assistant Secretary, NYSE,
dated January 17, 2017; letter to Brent J. Fields, Commission, from
Martha Redding, Associate General Counsel and Assistant Secretary,
NYSE, dated February 13, 2017 (``Response Letter II'' and ``Response
Letter III,'' respectively), available at https://www.sec.gov/comments/sr-nyse-2016-45/nyse201645.shtml.
---------------------------------------------------------------------------

    On February 7, 2017, the Exchange filed partial Amendment No. 4 to
the proposed rule change.\14\ On February 15, 2017, pursuant to Section
19(b)(2) of the Act,\15\ the Commission designated a longer period for
Commission action on proceedings to determine whether to disapprove the
proposed rule change, as modified by Amendment Nos. 1 through 4.\16\
The Commission is publishing this notice to solicit comment on partial
Amendment No. 4 and, and is approving the proposed rule change, as
modified by Amendment Nos. 1 through 4, on an accelerated basis.
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    \14\ In partial Amendment No. 4 the Exchange proposes to (1)
remove reference to the National Stock Exchange from its list of
Third Party Systems, and (2) provide and establish fees for
connectivity to three additional Third Party Data Feeds--ICE Data
Services Consolidated Feed, ICE Data Services PRD, and ICE Data
Services PRD CEP, which are feeds owned by the Exchange's ultimate
parent, but not by the Exchange or its affiliated self-regulatory
organizations, NYSE MKT or NYSE Arca. Partial Amendment No. 4 is
available at https://www.sec.gov/comments/sr-nyse-2016-45/nyse201645-5.pdf.
    \15\ 15 U.S.C. 78s(b)(2).
    \16\ See Securities Exchange Act Release No. 34-80002 (February
9, 2017), 82 FR 10827. The Commission designated April 14, 2017 as
the date by which it should determine whether to disapprove the
proposed rule change.
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II. Description of the Proposed Rule Change, as Modified by Amendment
Nos. 1 Through 4

A. Background: Prior Proposal and the Order Instituting Proceedings

    In the proposed rule change, as modified by Amendment Nos. 1
through 4 (also referred to as the ``Current Proposal''), the Exchange
proposes to amend the co-location services offered by the Exchange to
add certain access and connectivity services and establish fees
applicable to Users in the Data Center. Specifically, the Exchange
proposes to provide and establish fees for connectivity to: (i) Third
Party Data Feeds, (ii) Third Party Systems, (iii) DTCC services, (iv)
third party testing and certification feeds; and for the use of
VCCs.\17\
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    \17\ See Notice of Amendment No. 3, supra note 11, 81 FR at
96054, and partial Amendment No. 4 supra note 14. A VCC is a unicast
connection between two Users over dedicated bandwidth using the IP
network. See Notice of Amendment No. 3, supra note 11, 81 FR at
96057.

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    In the Prior Proposal (i.e., prior to filing Amendment No. 3), the
Exchange also had proposed to provide additional information about
access to NYSE, NYSE Arca, and NYSE MKT trading and execution services,
and to establish fees for connectivity to certain proprietary market
data feeds.\18\ Specifically, the Exchange had proposed that
connectivity to most of the Exchange's and its affiliated SROs'
proprietary market data products would be included in the purchase
price of an LCN/IP network connection in the Data Center, but that an
additional connectivity fee (``Premium NYSE Product Connectivity Fee'')
would apply to the NYSE Integrated Feed, NYSE Arca Integrated Feed,
NYSE MKT Integrated Feed, and the NYSE Best Quote and Trades (BQT) feed
(``Premium NYSE Data Products'').\19\ As a result, the purchase of
access to NYSE, NYSE Arca, and NYSE MKT trading and execution services,
would not include connectivity to every purchased proprietary data
product; and whereas the Exchange would charge no additional fees for
connectivity to most of the Exchange's and its affiliated SROs' data
products, it would charge additional fees for connectivity to Premium
NYSE Data Products.
---------------------------------------------------------------------------

    \18\ For a detailed description of the Prior Proposal, see the
First Amended Notice, supra note 5, and the OIP, discussing
Amendment No. 2, supra note 9.
    \19\ See the First Amended Notice, supra note 5, and the OIP,
discussing Amendment No. 2, supra note 9.
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    The Commission specifically requested comment on this aspect of the
Prior Proposal in the OIP. In particular, in the OIP, the Commission
expressed concern that the Exchange had not identified a distinction
between the provision of connectivity to Premium NYSE Data Products and
the Exchange's and its affiliated SROs' other data products, and noted
that the Premium NYSE Data Products are similar to such other data
products.\20\ In addition, the Commission requested comment on whether
charging fees for connectivity to Premium NYSE Data Products in a
different manner from other Exchange and affiliated SRO proprietary
market data products was consistent with Section 6(b)(4) of the
Act.\21\ The Commission also sought comment on whether Users would have
viable alternatives to paying the Exchange a connectivity fee for the
Premium NYSE Data Products.\22\ As discussed below, several commenters
stated that it was inequitable for the Exchange to charge a separate
and additional connectivity fee for some Exchange and affiliated SRO
proprietary market data products and not others, and that receiving the
Premium NYSE Data Products from an alternative source was not a viable
option.\23\
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    \20\ See OIP, supra note 9, 81 FR at 83308.
    \21\ See id.
    \22\ See id. at 83307.
    \23\ See infra notes 70-72 and accompanying text.
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    In Amendment No. 3, the Exchange eliminated the Premium NYSE
Product Connectivity Fee from the Current Proposal, and that fee is
therefore no longer presented to the Commission for consideration.

B. Description of the Current Proposal

    As stated above and more fully described in the Notice of Amendment
No. 3, as partially modified by Amendment No. 4, the Exchange proposes
to provide and establish fees for connectivity to: (i) Third Party Data
Feeds, (ii) Third Party Systems, (iii) DTCC services, (iv) third party
testing and certification feeds; and for the use of VCCs.\24\
---------------------------------------------------------------------------

    \24\ See Notice of Amendment No. 3, supra note 11, 81 FR at
96054 and partial Amendment No. 4 supra note 14.
---------------------------------------------------------------------------

    Regarding Third Party Data Feeds, the Exchange proposes to offer
Users the option to connect to Third Party Data Feeds in the Data
Center for a monthly connectivity fee per feed.\25\ The Exchange states
that it receives Third Party Data Feeds in the Data Center from
multiple national securities exchanges and other content service
providers which it then provides to requesting Users for a fee.\26\ The
Exchange states that its proposal to charge Users a monthly fee for
connectivity to Third Party Data Feeds is consistent with the monthly
connectivity fee Nasdaq charges its co-location customers for
connectivity to third party data.\27\ According to the Exchange, the
proposed fees ``allow the Exchange to defray or cover the costs
associated with offering Users connectivity to Third Party Data Feeds
while providing Users the convenience of receiving such Third Party
Data Feeds within co-location.'' \28\ Additionally, the Exchange noted
that some of the proposed fees vary depending on the bandwidth
considerations and, in cases where the bandwidth requirements are the
same as other proposed services such as Third Party Systems or VCCs,
the prices reflect ``the competitive considerations and the costs the
Exchange incurs in providing such connections.'' \29\
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    \25\ See Notice of Amendment No. 3, supra note 11, 81 FR at
96055.
    \26\ See id.
    \27\ See id. The Exchange notes that Nasdaq charges monthly fees
of $1,500 and $4,000 for connectivity to BATS Y and BATS data feeds,
respectively, and of $2,500 for connectivity to EDGA or EDGX. See
id.
    \28\ See Notice of Amendment No. 3, supra note 11, 81 FR at
96059; partial Amendment No. 4, supra note 14.
    \29\ See Notice of Amendment No. 3, supra note 11, 81 FR at
96059; partial Amendment No. 4, supra note 14.
---------------------------------------------------------------------------

    To connect to a Third Party Data Feed, a User must enter into a
contract with the relevant third party market or content service
provider, under which the third party market or content service
provider charges the User for the data feed.\30\ The Exchange receives
these Third Party Data Feeds over its fiber optic network and, after
the data provider and User enter into a contract and the Exchange
receives authorization from the data provider, the Exchange re-
transmits the data to the User's port.\31\ Users only receive, and are
only charged for, the feed(s) for which they have entered into
contracts.\32\ Additionally, the Exchange notes that Third Party Data
Feeds do not provide access or order entry to its execution system or
access to the execution system of the third party generating the
feed.\33\ The Exchange proposes to charge a set monthly recurring
connectivity fee per Third Party Data Feed, as set forth in the
proposed Price List.\34\ A User is free to receive all or some of the
feeds included in the Price List.\35\ The Exchange notes that Third
Party Data Feed providers may charge redistribution fees, such as
Nasdaq's Extranet Access Fees and OTC Markets Group's Access Fees,
which the Exchange will pass through to the User in addition to
charging the applicable connectivity fee.\36\
---------------------------------------------------------------------------

    \30\ See Notice of Amendment No. 3, supra note 11, 81 FR at
96055.
    \31\ See id.
    \32\ See id.
    \33\ See id. at 96056. The Exchange notes that there is one
exception to this for the ICE feeds which include both market data
and trading and clearing services. In order to receive the ICE
feeds, a User must receive authorization from ICE to receive both
market data and trading and clearing services. See id.
    \34\ See Notice of Amendment No. 3, supra note 11, 81 FR at
96056, as modified by partial Amendment No. 4, supra note 14 (adding
additional Third Party Data Feeds).
    \35\ See Notice of Amendment No. 3, supra note 11, 81 FR at
96056.
    \36\ See id.
---------------------------------------------------------------------------

    The Exchange represents that ``as alternatives to using the
[proposed connectivity to Third Party Data Feeds] provided by the
Exchange, a User may access or connect to such . . . products through
another User or through a connection to an Exchange access center
outside the data center, third party access center, or third party
vendor. The User may make such connection

through a third party telecommunication provider, third party wireless
network, the SFTI network, or a combination thereof.'' \37\
---------------------------------------------------------------------------

    \37\ See id. at 96058.
---------------------------------------------------------------------------

    As more fully described in the Notice of Amendment No. 3, as
modified by partial Amendment No. 4, the Exchange also proposes to
provide and establish fees for connectivity (also referred to as
``Access'') to Third Party Systems,\38\ to DTCC services,\39\ and to
third party certification and testing feeds, and charge a monthly
recurring fee.\40\ The Exchange proposes to amend the Price List to
provide and establish fees for connectivity to these service providers
and certification/testing feeds.\41\ The Exchange states that
connectivity is dependent on a User meeting the necessary technical
requirements, paying the applicable fees, and the Exchange receiving
authorization from the relevant third party service provider to make
the connection.\42\
---------------------------------------------------------------------------

    \38\ The Exchange states that it selects what connectivity to
Third Party Systems to offer in the Data Center based on User
demand. See id. at 96055. In partial Amendment No. 4, the Exchange
removed the National Stock Exchange from the list of Third Party
Systems, noting that it is now owned by the Exchange's parent. See
partial Amendment No. 4, supra note 14. Establishing a User's access
to a Third Party System does not give the Exchange any right to use
the Third Party Systems; connectivity to a Third Party System does
not provide access or order entry to the Exchange's execution
system, and a User's connection to a Third Party System is not
through the Exchange's execution system. See Notice of Amendment No.
3, supra note 11, 81 FR at 96055.
    \39\ The Exchange states that connectivity to DTCC ``is distinct
from the access to shared data services for clearing and settlement
services that a User receives when it purchases access to the LCN or
IP network. The shared data services allow Users and other entities
with access to the Trading Systems to post files for settlement and
clearing services to access.'' See Notice of Amendment No. 3, supra
note 11, 81 FR at 96056 n. 25.
    \40\ Certification feeds certify that a User conforms to any of
the relevant content service providers' requirements for accessing
Third Party Systems or receiving Third Party Data, whereas testing
feeds provide Users an environment in which to conduct system tests
with non-live data. See Notice of Amendment No. 3, supra note 11, 81
FR at 96056.
    \41\ See Notice of Amendment No. 3, supra note 11, 81 FR at
96055-96057.
    \42\ See id.
---------------------------------------------------------------------------

    For each service, a User must execute a contract with the
respective third party service provider pursuant to which a User pays
each the associated fee(s) for their services.\43\ Once the Exchange
receives authorization from the third party service provider, the
Exchange will enable a User to connect to the service provider and/or
third party certification and testing feed(s) over the IP Network.\44\
The proposed recurring monthly fees for connectivity to Third Party
Systems and DTCC are based upon the bandwidth requirements per
system.\45\
---------------------------------------------------------------------------

    \43\ See id.
    \44\ See id. For Third Party Systems, once the Exchange receives
the authorization from the respective third party it establishes a
unicast connection between the User and the relevant third party
over the IP network. See id. at 96055. For the DTCC, ``[t]he
Exchange receives the DTCC feed over its fiber optic network and,
after DTCC and the User enter into the services contract and the
Exchange receives authorization from DTCC, the Exchange provides
connectivity to DTCC to the User over the User's IP network port.''
See id. at 96056-96057.
    \45\ See id. at 96055-96057.
---------------------------------------------------------------------------

    The Exchange represents that as alternatives to using the proposed
connectivity to Third Party Systems, to DTCC services, and to third
party certification and testing feeds offered by the Exchange, ``a User
may access or connect to such services and products through another
User or through a connection to an Exchange access center outside the
data center, third party access center, or third party vendor. The User
may make such connection through a third party telecommunication
provider, third party wireless network, the SFTI network, or a
combination thereof.'' \46\
---------------------------------------------------------------------------

    \46\ See id. at 96058.
---------------------------------------------------------------------------

    Finally, as more fully described in the Notice of Amendment No. 3,
as partially modified by partial Amendment No. 4, the Exchange also
proposes to provide and establish fees for VCCs.\47\ A VCC (previously
called a ``peer to peer'' connection) is a unicast connection through
which two participants can establish a connection between two points
over dedicated bandwidth using the IP network to be used for any
purpose.\48\ The proposed recurring monthly fees for VCCs are based
upon the bandwidth requirements per VCC connection between two
Users.\49\ Connectivity to VCCs will similarly require permission from
the other User before the Exchange will establish the connection.\50\
As an alternative to using a VCC, Users can connect to other Users
through a cross-connect.\51\
---------------------------------------------------------------------------

    \47\ See id. at 96057.
    \48\ See id.
    \49\ See id.
    \50\ See id.
    \51\ See id. at 96058.
---------------------------------------------------------------------------

    The Exchange states in reference to all of the proposed services
that in adding the fees it seeks to defray or cover its costs in
providing these voluntary services to Users, and that in order to
provide these services it must, among other things, provide, maintain
and operate the data center facility hardware and technology
infrastructure; and handle the installation, administration,
monitoring, support and maintenance of such services, including by
responding to any production issues.\52\ The Exchange also states that
the fees charged for co-location services are constrained by the active
competition for the order flow and other business from such market
participants,\53\ and that charging excessive fees would make it stand
to lose not only co-location revenues but also the liquidity of the
formerly co-located trading firms.\54\ Additionally, the Exchange
states that Users have alternatives if they believe the fees are
excessive.\55\ Specifically, the Exchange notes that a User could
terminate its co-location arrangement with the Exchange ``and adopt a
possible range of alternative strategies, including placing their
servers in a physically proximate location outside the exchange's
[D]ata [C]enter (which could be a competing exchange), or pursuing
strategies less dependent upon the lower exchange-to-participant
latency associated with colocation.'' \56\
---------------------------------------------------------------------------

    \52\ See id.
    \53\ See id.
    \54\ See id.
    \55\ See id.
    \56\ See id.
---------------------------------------------------------------------------

III. Summary of Comments Received and Exchange Responses

    The Commission received eight comment letters from six commenters
on the proposed rule change, as modified by Amendment Nos. 1 through
4.\57\ The Exchange submitted three letters in response to the
comments.\58\
---------------------------------------------------------------------------

    \57\ See supra notes 6 and 12. In addition, one commenter noted
that it filed a denial of access petition on the proposal. See SIFMA
I Letter at 1 and SIFMA II Letter at 3.
    \58\ See Response Letters I, II, and III, supra notes 6 and 13.
---------------------------------------------------------------------------

A. Comment Submitted Prior to the OIP

    The Commission received one comment letter prior to publication of
the OIP.\59\ The initial commenter requested that the Exchange provide
additional information on the history of all of the proposed fees
(which the commenter believed were already in effect), and the
relationship between the fees and the Exchange's costs to maintain the
Data Center and provide co-location services.\60\ The commenter urged
``additive transparency'' to enable members to evaluate the fixed costs
of exchange membership and whether fees were applied equitably.\61\
This commenter also stated that broker-dealers ``may be practically
required to buy and consume proprietary market data feeds directly from
exchanges in order to provide competitive products for those clients,
and that the trading environment ``imposes a form of trading tax on all
members by offering different

methods of access to different members.'' \62\ The commenter questioned
whether ``there are any true alternatives that are practically
available to various types of participants who are seeking to compete
with those who are paying exchanges for co-location and data
services,'' and urged that the Exchange provide information and
analysis on how its ability to set co-location fees is constrained by
market forces for a ``comparable product.'' \63\
---------------------------------------------------------------------------

    \59\ See IEX I Letter, supra note 6.
    \60\ See id. at 1-2.
    \61\ See id.
    \62\ See id. at 2.
    \63\ See id.
---------------------------------------------------------------------------

    In response, the Exchange replied that historical information about
the development of its product offerings is ``not required by the Act
and is not relevant to [ ] the substance of the Proposal--which is, by
definition, forward looking . . . .'' \64\ The Exchange added that
costs are not its only consideration in setting prices, but rather that
prices ``include the competitive landscape; whether Users would be
required to utilize a given service; the alternatives available to
Users; and, significantly, the benefits Users obtain from the
services.'' \65\ In response to the commenter's argument regarding
different methods of access to trading, the Exchange stated that ``it
is a vendor of fair and non-discriminatory access, and like any vendor
with multiple product offerings, different purchasers may make
different choices regarding which products they wish to purchase.''
\66\ The Exchange further stated that co-location fees are not fixed
costs to members, but costs to any User who voluntarily chooses to
purchase such services based upon ``[t]he form and latency of access
and connectivity that bests suits a User's needs.'' \67\ The Exchange
added that Users do not require the Exchange's access or connectivity
offerings in co-location to trade on the Exchange and can instead use
alternative access and connectivity options for trading if they
choose.\68\
---------------------------------------------------------------------------

    \64\ See Response Letter I, supra note 6, at 3.
    \65\ See id.
    \66\ See id. at 5.
    \67\ See id. at 4.
    \68\ See id.
---------------------------------------------------------------------------

B. Comments Following Publication of the OIP

(i) Comments on the Premium NYSE Product Connectivity Fee and
Cumulative Fees Generally
    As noted above, the Commission specifically requested comment on
the Premium NYSE Product Connectivity Fee in the OIP.\69\ In response,
some commenters objected to the establishment of a separate
connectivity fee for Premium NYSE Data Products as duplicative of fees
already charged for bandwidth and access to the market data product
itself, and therefore that this fee would result in an inequitable
allocation of fees, inconsistent with Section 6(b)(4) of the Act.\70\
Another commenter similarly objected to an additional connectivity/
bandwidth charge for each Premium NYSE Data Product as an example of
``double dipping,'' and a fee having ``no merit'' on its own.\71\
Additionally, some commenters objected to the reasonableness of the
proposed Premium NYSE Product Connectivity Fee on the basis that there
was no viable alternative to paying the fee to obtain connectivity to
the Premium NYSE Data Products.\72\
---------------------------------------------------------------------------

    \69\ See OIP, supra note 9 and Section II.A. supra.
    \70\ See Citadel Letter at 2; Clearpool Letter at 4.
    \71\ See Wolverine Letter at 3. See also Citadel Letter at 2;
R2G Letter at 3 (each expressing concern about cumulative fees).
    \72\ See Citadel Letter at 3 (``there is no readily available
substitute or equivalent means of access to the Premium NYSE Data
Products''); Wolverine Letter at 3 (objecting to the statement ``the
Exchange is not the exclusive method to connect to Premium NYSE Data
Products'' noting that it is ``misleading at best.''). See also R2G
Letter at 1-2 (stating, its view that the Prior Proposal ``raises
serious concerns'' under the Exchange Act, but that ``Amendment No.
3 adequately addresses the original concerns,'' and adding that it
would, however, object if the Exchange similarly sought to apply the
logic of Amendment No. 3 regarding Third Party Systems to any ``NYSE
Proprietary Product'').
---------------------------------------------------------------------------

    In response to comments on the Premium NYSE Product Connectivity
Fee, the Exchange noted that it was no longer proposing that fee and
that the questions posed in the OIP about that fee were moot.\73\
---------------------------------------------------------------------------

    \73\ See Response Letter II at 4, 7-8. The Exchange also stated,
as discussed further below, that it did not agree with commenters
suggesting that a connectivity fee is indistinguishable from a
market data fee.
---------------------------------------------------------------------------

    Some commenters opposed to the Premium NYSE Product Connectivity
Fee also expressed broader concern about ``layered'' and cumulative
fees charged by the Exchange to access market data.\74\ Some of these
commenters believe that the rising costs related to the receipt of
market data in co-location over time effectively impose a barrier to
entry for smaller broker-dealers and new entrants, and are a burden on
competition.\75\ For example, Wolverine stated that it has an aggregate
cost of ``$123,750 per month of fixed costs in co-location, port, and
access fees today, solely for access to NYSE controlled markets,''
which is ``an amount which presents a steep barrier to entry for new
participants.'' \76\ Wolverine also estimated that its NYSE market data
costs have increased ``over 700% over 8 years.'' \77\ Citadel similarly
stated that ``additive and layered fees are a persistent problem with
exchange fees more generally,'' and urged scrutiny of the aggregate
impact of fees, ``in particular with respect to market data products
where exchanges have a monopoly as the initial distributors.'' \78\
---------------------------------------------------------------------------

    \74\ See Wolverine Letter at 1-3; Clearpool Letter at 3; Citadel
Letter at 3; R2G Letter 1, 3-6.
    \75\ See Wolverine Letter at 1-3; Clearpool Letter at 3; Citadel
Letter at 3.
    \76\ See Wolverine Letter at 3.
    \77\ See id. at 1 (also objecting to port and other charges
(outside the scope of the Current Proposal) as unreasonable); see
also R2G Letter at 3 (expressing agreement with Wolverine).
    \78\ See Citadel Letter at 2.
---------------------------------------------------------------------------

    Clearpool stated, among other things, that market participants are
beholden to the exchanges for market data; that it is not feasible for
broker-dealers with best execution obligations to rely on SIP data as
an alternative to exchange proprietary data feeds; and that the role
and cost of using SIP and proprietary feeds should be considered in
connection with Commission proposals to improve Regulation NMS Rules
605 and 606 reporting.\79\ Clearpool advocated for the Commission to
``thoroughly review the issues around market data'' and to ensure that
it is priced more competitively and equitably for all market
participants.\80\ Clearpool also stated that high costs prevent new
innovative technology services, including order routing, risk
management, and transaction cost analysis services, from entering the
market, and further, that increasing fees significantly reduce the
margin that smaller broker-dealers can earn on a transaction, putting
them at a disadvantage to larger firms that can absorb these costs.\81\
---------------------------------------------------------------------------

    \79\ See Clearpool Letter at 2-4.
    \80\ See id. at 1, 4.
    \81\ See id. at 3.
---------------------------------------------------------------------------

    In response to these comments, the Exchange challenged Wolverine's
assessment that Exchange fees have increased by 700% over the past
eight years, explaining that it was a mischaracterization and did not
represent a true comparison of the fees paid for particular data feeds
in 2008 as compared to fees paid for those specific feeds today.\82\
The Exchange also rejected Wolverine's argument that all of its costs-
including the optional cage surrounding its cabinets, power, cross
connects, network ports and connectivity--should be treated as costs
related to market access.\83\ The Exchange stated, that ``however self-
servingly [Wolverine] tries to characterize them, these listed costs,

like rent and employee compensation and benefits, are simply costs
associated with Wolverine's business activities. These business
activities and Wolverine's business judgment--not the Exchange--
determine the most effective way for Wolverine to select the products
and services it uses.'' \84\
---------------------------------------------------------------------------

    \82\ See Response Letter II at 10 and n. 27.
    \83\ See id. at 10.
    \84\ See id.
---------------------------------------------------------------------------

    Regarding comments about market data and co-location fees more
generally, the Exchange responded that a User that chooses to receive
market data within co-location will incur several costs in addition to
the cost a market data provider will charge for its data, including the
costs associated with the LCN or IP network port, power, cross
connects, and connectivity, but the need for equipment and connections
to enable receipt of a market data feed within co-location does not
convert the costs of such equipment and connections into market data
fees.\85\ The Exchange also stated that some commenters were using the
Prior Proposal as a ``departure point to discuss broader issues related
to market data.'' \86\ The Exchange catalogued comments about exchange
fees for proprietary market data products, the effect of Commission
proposals to improve disclosure of order execution and order routing
information under Rules 605 and 606 of Regulation NMS, and the payment
of rebates for posted liquidity as comments beyond the scope of the
Current Proposal, as well as the fees any one exchange might
propose.\87\
---------------------------------------------------------------------------

    \85\ See id. at 5.
    \86\ See id.
    \87\ See id. at 5-6. See also infra notes 117-127 discussing
SIFMA's comments characterizing a variety of fees as market data
fees and the Exchange's response.
---------------------------------------------------------------------------

    The Exchange also stated that market participants are not required
to co-locate with or subscribe to proprietary market data products from
an exchange, emphasizing that firms using exchange market data products
in co-location ``have chosen to build business models based on speed.''
\88\
---------------------------------------------------------------------------

    \88\ See Response Letter II at 11-12.
---------------------------------------------------------------------------

(ii) Comments Regarding Competition and Alternatives to the Proposed
Co-Location Services
    Some commenters addressing both the Prior Proposal and Amendment
No. 3 suggested that co-location services in general are not
optional.\89\ In the context of whether the Current Proposal's
connectivity fees are reasonable, some of these commenters argued that
there is a lack of competition for the Exchange's co-location and data
services generally, and suggested a lack of viable alternatives to the
Current Proposal's proposed connectivity services and fees in
particular.\90\ For instance, SIFMA argued that the Exchange's ability
to set co-location fees is not constrained by market forces because
there is ``no comparable connectivity or product,'' and low-latency
alternatives to these services do not exist.\91\ SIFMA stated that
``[a]ny alternative with severely increased latencies would not be a
viable alternative.'' \92\ Similarly, IEX argued that if co-location
services are optional, and therefore need not be purchased if the fees
are excessive, then the Exchange should demonstrate how firms are not
placed at a competitive disadvantage if they elect to not receive such
services from the Exchange.\93\ In particular, IEX suggested that the
Exchange provide data on the expected latency (or range of latencies)
in receiving data or transmitting orders directly from the Exchange,
compared to the equivalent latency (or range) for firms that rely on a
third party access center.\94\ IEX requested that the NYSE ``explain
whether it believes that this difference would not affect the ability
of electronic market makers and other trading firms and active agency
brokers to compete with firms in the same businesses that have faster
access, and if so how it reached this conclusion.'' \95\ IEX also
disputed that competition for order flow constrains pricing of co-
location services, arguing that NYSE often displays protected quotes
for certain stocks, a status it achieves by paying a high number of
rebates for liquidity, and firms are forced to interact with it to
avoid trade-throughs.\96\ Both IEX and SIFMA argued that in the absence
of competition for the proposed services and fees (which, in SIFMA's
view are indistinguishable from market data fees), the Exchange should
be required to discuss the relationship between the proposed fees and
increasing Data Center costs, or detail how the fee increases relate to
the costs of providing the service, in order to justify the proposed
fees as reasonable.\97\
---------------------------------------------------------------------------

    \89\ See IEX I Letter at 2 (best execution requires broker-
dealer to have ``effective access'' to exchanges); SIFMA II Letter
at 4 (``brokers are legally obligated to seek best execution for
their customers. They are required to consider the likelihood that a
trade will be executed and whether there is an opportunity to obtain
a price better than what is currently quoted.'') See also Citadel
Letter at 3 (stating that ``competitive pressures oblige broker-
dealers to seek the most efficient access to markets and market data
to execute orders . . .,'' creating a risk for those firms that
elect to trade with ``slower and less efficient access.''); R2G
Letter at 3 (referring to an ``ever increasing need for speed'');
Wolverine Letter at 1 (stating that it is ``required to subscribe to
the lowest latency NYSE market data products and services'').
    \90\ See IEX I Letter at 2, IEX II Letter at 1-3, SIFMA I Letter
at 2 and SIFMA II Letter at 2. Compare with comments alleging a lack
of viable alternatives to connectivity to Premium NYSE Data
Products, supra note 73.
    \91\ See SIFMA I Letter at 2. According to SIFMA, ``the mere
presence of the IEX Letter in the comment file'' evidences of a lack
of competitive market forces to constrain pricing, because IEX is a
competitor to the Exchange. See id. at 3.
    \92\ See SIFMA I Letter at 3 (also stating ``different fees are
charged for the different types of connectivity, with no rational
basis, [is] unfairly discriminatory between customers.'')
    \93\ See IEX II Letter at 2.
    \94\ See id.
    \95\ See id.
    \96\ See id. at 3. See also SIFMA II Letter at 2 (expressing
general agreement); see also SIFMA I Letter at 3 (stating that the
presence of a comment letter from IEX cuts against the argument that
competition for order flow constrains fees). See also Citadel Letter
at 2 (urging greater transparency regarding the Exchange's Data
Center costs).
    \97\ See IEX II Letter at 3; SIFMA II Letter at 2.
---------------------------------------------------------------------------

    In contrast, two commenters acknowledged the existence of
alternatives to some Exchange co-location services.\98\ One of these
commenters noted that alternatives are present for Third Party System
connectivity as evidenced by the fact that it ``finds NYSE's third
part[y] system costs out of line and does not subscribe to this NYSE
offering, instead implementing this connectivity internally using a
proprietary network.'' \99\ Another commenter stated that it ``directly
competes with NYSE for these [Third Party Systems] services and does so
at prices significantly lower than the fees NYSE has proposed.'' \100\
---------------------------------------------------------------------------

    \98\ See Wolverine Letter at 3; R2G Letter at 1-2.
    \99\ See Wolverine Letter at 3.
    \100\ See R2G Letter at 1-2.
---------------------------------------------------------------------------

    In response to comments that competitive forces do not constrain
co-location fees and that alternatives to co-location services are
lacking, the Exchange defended its representations that the proposed
services are offered as a convenience to Users, are voluntary, and that
Users have viable alternatives to the proposed services.\101\ The
Exchange stated that additional latency in an alternative means of
connectivity does not negate the viability of that alternative,\102\
and that commenters arguing that only an ``equivalent'' latency
alternative is a viable alternative are misguided.\103\ The Exchange
stated that, ``the Act does not require that there be at least one
third party option available that has exactly the same characteristics
as a proposed service before a national securities exchange can impose
or change a fee for a service,'' adding that such a requirement would
be ``untenable, as every exchange

would have to have an exact duplicate before it could charge a fee.''
\104\ Rather, the relevant question is whether a proposed fee would be
``an equitable allocation of reasonable dues, fees, and other charges
among Users in the data center; does not unfairly discriminate between
customers, issuers, brokers, or dealers; and does not impose a burden
on competition which is not necessary or appropriate in furtherance of
the purposes of the Act.'' \105\ The Exchange noted that it did not
represent that the connectivity alternatives available to co-located
Users (including alternatives for connectivity to Premium NYSE Data
Products) are exactly the same as those proposed, but rather that the
cited alternatives show that Users have the option ``to receive the
same market data, or make the same trades, in other manners.'' \106\
The Exchange added that its cited alternatives ``offer distinct
services and pricing structures that some Users may find more
attractive than those proposed by the Exchange,'' and that these
alternatives are ``real,'' even if not all Users will find them equally
attractive for their individual business model.\107\ The Exchange
stated that the viability of alternatives is ``underscored by the
Wolverine Letter, which explicitly states that it does not object to
the proposed fees for access to Third Party Systems in the Current
Proposal on the basis that firms may contract with other parties or
contract directly with network providers.'' \108\ The Exchange added
that, ``[I]t is the Exchange's understanding that a User could access
Third Party Systems and connect to Third Party Data Feeds, third party
testing and certification feeds, and DTCC using one or more of the
listed alternatives without increasing its latency levels--and, in many
cases, the alternatives would offer lower latency.'' \109\
---------------------------------------------------------------------------

    \101\ See Response Letter II at 6.
    \102\ See id. at 7-8.
    \103\ See id. at 7.
    \104\ See id. at 8.
    \105\ See id.
    \106\ See id. The Exchange also noted that Clearpool is not a
co-location customer of the Exchange, which the Exchange believes
illustrates that market participants can and do avail themselves of
alternatives for connecting to NYSE market data products. See id.
    \107\ See id. In addition, in response to IEX's suggestion that
the Exchange provide data on the expected latency (or range of
latencies) in receiving data or transmitting orders directly from
the Data Center, compared to the expected latency (or range) for
firms that rely on a third party access center, the Exchange stated
it could not do so without having access to the latency data of
third parties, or each User's specific system configuration and
latency needs and therefore could not satisfy IEX's ``deliberately
impossible requirement.'' See id. at 7.
    \108\ See id. at 9. The Exchange did not similarly address the
R2G Letter.
    \109\ See id. at 9-10.
---------------------------------------------------------------------------

    Further, the Exchange emphasized that while some commenters focus
exclusively on latency as the only relevant consideration, ``Users with
different investment strategies or business models may focus on other
characteristics, including redundancy, resiliency, cost, and the
services that third parties offer but the Exchange does not, such as
managed services.'' \110\ The Exchange stated that alternatives exist
as evidenced by the fact that ``there are at least six Users within the
co-location hall that offer other Users or hosted customers access to
trading or connectivity to market data, including the two other
exchanges that are co-located with the Exchange, as well as the fact
that Users may contract with any of the 15 telecommunication
providers--including five third party wireless networks--available to
Users to connect to third party vendors.'' \111\ The Exchange also
noted that the alternatives are possible in part because the Exchange
voluntarily allows Users to provide services to other Users and third
parties out of the Exchange's co-location facility--that is, to compete
with the Exchange using the Exchange's own facilities.\112\ For
example, according to the Exchange, ``a User that wished to receive
Nasdaq market data could connect directly to the Nasdaq server within
co-location.'' \113\ Therefore, the Exchange believes that contrary to
commenters' beliefs, the Exchange's cited alternatives offer comparable
services that can be used in lieu of receiving Exchange offered
services, and that there are competitive forces constraining
pricing.\114\
---------------------------------------------------------------------------

    \110\ See id. at 8 n.16.
    \111\ See id. at 9.
    \112\ See id.
    \113\ See id. at 10 n.24.
    \114\ See id. at 9.
---------------------------------------------------------------------------

    SIFMA raised additional arguments. SIFMA urged that ``[t]he
proposed connectivity fees should be reviewed in a manner consistent
with the decisions of the United States Court of Appeals for the
District of Columbia Circuit'' in NetCoalition v. SEC, because says
SIFMA, they are market data fees.\115\ SIFMA took the position that
under NetCoalition I (615 F.3d 525 (D.C. Cir. 2010)) an exchange's
assertion that order flow competition constrains pricing of data is
insufficient.\116\ More specifically, in SIFMA's view ``port, power,
cross connect, connectivity and cage fees, which are necessary in order
to obtain the market data from NYSE,'' ``however labeled, are market
data fees.'' \117\ SIFMA also noted that it had submitted a ``properly
filed 19(d) denial of access petition on the proposal,'' but had
requested that it be ``held in abeyance pending the decision in the
NetCoalition follow-on proceedings . . . .'' \118\ SIFMA urged however,
that such petition, despite its abeyance, not be ignored.\119\
---------------------------------------------------------------------------

    \115\ See SIFMA II Letter at 2-3 (citing NetCoalition I, 615
F.3d 525 (D.C. Cir. 2010); NetCoalition II, 715 F.3d 342 (D.C. Cir.
2013)).
    \116\ SIFMA I Letter at 3 (noting that ``[t]he Court's
NetCoalition decisions, the controlling law on this subject,
rejected this order flow argument because, like here, there was no
support for the assertion that order flow competition constrained
the ability of the exchange to charge supracompetitive prices for
data.'').
    \117\ See SIFMA II Letter at 3. See also SIFMA I Letter at 4
(stating that market data fees, port fees, hardware fees and
connectivity fees are all ``within the ambit of the NetCoalition
decisions.'')
    \118\ See SIFMA I Letter at 1; SIFMA II Letter at 3.
    \119\ See SIFMA II Letter at 3.
---------------------------------------------------------------------------

    In response to SIFMA on these points, the Exchange stated that,
``NetCoalition addressed the standards governing proprietary market
data fees,'' and that it is ``incorrect'' to characterize the Current
Proposal as establishing market data fees.\120\ The Exchange stated:
---------------------------------------------------------------------------

    \120\ See Response Letter III at 3-4.

the fact that a User needs to have a port, power, and connectivity
in place in order to be able to receive a market data feed within
co-location does not convert the costs of such equipment and
connections into market data fees. Rather, they are costs associated
with the User's business activities. If a User opts to put a cage
around its servers in the colocation hall, the cage fee it pays is a
cost it chooses to incur in connection with the way it has chosen to
do business, not a market data fee.\121\
---------------------------------------------------------------------------

    \121\ See id. at 4 (emphasis in original).

    The Exchange distinguished the services and fees proposed in the
Current Proposal from market data fees, emphasizing that they are
connectivity fees or access fees applicable when a User chooses to
utilize connectivity or access services within co-location.\122\ The
Exchange noted that two of the proposed fees are for services that
facilitate Users' trading activities, and have nothing to do with
market data: a proposed fee for access within co-location to the
execution systems of third party markets and other content service
providers, and a proposed fee for connectivity within co-location to
DTCC services, such as clearing, fund transfer, insurance, and
settlement services.\123\ The Exchange similarly distinguished the
proposed connectivity fee for third party testing and certification
feeds as not equivalent to providing a customer

with market data.\124\ Addressing the proposed connectivity fee for
Third Party Data Feeds within co-location, the Exchange noted that this
proposed fee ``has more often been mistaken for a market data fee,''
but distinguished the service of providing a User with connectivity to
Third Party Data Feeds from the service that the third party providing
the market data provides by sending the data over the connection,
noting that the third party content service provider charges the User
the market data fee.\125\
---------------------------------------------------------------------------

    \122\ See id. at 5-6. The Exchange noted that SIFMA did not
address VCC fees. See id. at 5, n. 17.
    \123\ See id. at 5-6 (also noting that fees for Third Party
System and DTCC connectivity vary by bandwidth and are generally
proportional to the bandwidth required).
    \124\ See id. at 5 (also noting that fees for connectivity to
third party testing and certification feeds reflect that bandwidth
requirements are generally not large, and the relatively low fee may
encourage Users to conduct tests and certify conformance, which the
Exchange believes generally benefits the markets).
    \125\ See id. at 5-6 (also noting that the fees for Third Party
Data Feeds vary because Third Party Data Feeds vary in bandwidth;
proximity to the Exchange, requiring different circuit lengths; fees
charged by the third party provider, such as port feeds; and levels
of User demand).
---------------------------------------------------------------------------

    The Exchange did not agree with SIFMA's contention that the Current
Proposal would establish market data fees, nor agree that NetCoalition
standard was applicable to the Current Proposal,\126\ but instead
stated, ``[t]here is significant competition for the connectivity
relevant to the Current Proposal;'' and ``even if the NetCoalition
standard did apply, the Current Proposal satisfies it.'' \127\
---------------------------------------------------------------------------

    \126\ See id. at 3. See also Response Letter II at 13.
    \127\ See Response Letter III at 3. See also Response Letter II
at 13.
---------------------------------------------------------------------------

    Regarding SIFMA's denial of access petition, the Exchange responded
that a denial of access petition is not a comment letter, and should
not be treated as such given that SIFMA itself has requested that its
denial of access petition on fee filings be held in abeyance pending a
decision in the NetCoalition follow-on proceedings.\128\
---------------------------------------------------------------------------

    \128\ See Response Letter III at 3. See also Response Letter II
at 13; SIFMA Letter II at 3 (noting that ``SIFMA's 19(d)s will be
held in abeyance pending the decision in the NetCoalition follow-on
proceedings . . .'').
---------------------------------------------------------------------------

IV. Discussion and Commission Findings

    After careful consideration of the proposed rule change, as
modified by Amendment Nos. 1 through 4, the comments received, and the
Exchange's responses to the comments, the Commission finds that the
proposed rule change, as modified by Amendment Nos. 1 through 4, is
consistent with the requirements of the Act and the rules and
regulations thereunder applicable to a national securities exchange. In
particular, the Commission finds that the proposed rule change is
consistent with Section 6(b)(4) of the Act,\129\ which requires that an
exchange have rules that provide for the equitable allocation of
reasonable dues, fees and other charges among its members, issuers and
other persons using its facilities; Section 6(b)(5) of the Act,\130\
which requires that the rules of an exchange be designed, among other
things, to prevent fraudulent and manipulative acts and practices, 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; and Section 6(b)(8) of the
Act,\131\ which prohibits any exchange rule from imposing any burden on
competition that is not necessary or appropriate in furtherance of the
Act.\132\
---------------------------------------------------------------------------

    \129\ 15 U.S.C. 78f(b)(4).
    \130\ 15 U.S.C. 78f(b)(5).
    \131\ 15 U.S.C. 78f(b)(8).
    \132\ 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).
---------------------------------------------------------------------------

    As discussed more fully above, some commenters oppose the proposed
co-location fees on the basis that viable alternatives to the
Exchange's co-location services are lacking, and particularly that
similar low-latency alternatives to the Exchange's co-location services
do not exist.\133\ According to these commenters, the lack of viable
alternatives means that competitive forces do not constrain Exchange
pricing of co-location services, and the Exchange's proposed fees
should be subject to a cost-based assessment.\134\
---------------------------------------------------------------------------

    \133\ See supra notes 63, 89-95, and accompanying text.
    \134\ See supra notes 60, 97, 115-117 and accompanying text.
---------------------------------------------------------------------------

    In response to these comments, the Exchange counters that co-
location Users have several alternatives to the Exchange's proposed
services, both inside and outside the Data Center. The Exchange
explains that as alternatives to using the access to Third Party
Systems, and connectivity to Third Party Data Feeds, third party
testing and certification feeds, and DTCC, provided by the Exchange, a
User may access or connect to such services and products through an
Exchange access center, third party access center, or a third party
vendor outside the Data Center, and may do so using a third party
telecommunication provider, a third party wireless network, the Secure
Financial Transaction Infrastructure (SFTI) network, or a combination
thereof.\135\ Furthermore, the Exchange points out that alternatives to
the Exchange's access and connectivity services also exist inside the
Data Center, as evidenced by the fact that ``there are at least six
Users within the co-location hall that offer other Users or hosted
customers access to trading or connectivity to market data, including
the two other exchanges that are co-located with the Exchange, as well
as the fact that Users may contract with any of the 15
telecommunication providers--including five third party wireless
networks--available to Users to connect to third party vendors.'' \136\
The Exchange notes that these alternatives are possible because the
Exchange allows Users to provide services to other Users and third
parties out of the Exchange's co-location facility--that is, to compete
with the Exchange using the Exchange's own facilities.\137\
---------------------------------------------------------------------------

    \135\ See Response Letter II at 6.
    \136\ See id. at 9.
    \137\ See id.
---------------------------------------------------------------------------

    The Commission has carefully considered the comments and the
Exchange's response concerning the availability of alternatives to the
Exchange's proposed access and connectivity services. In addition, the
Commission notes that two commenters expressed the view that viable
alternative means of accessing Third Party Systems are available.\138\
The Commission believes that viable alternatives to the Exchange's
proposed co-location services are available which bring competitive
forces to bear on the fees set forth in the Current Proposal.\139\
---------------------------------------------------------------------------

    \138\ See supra notes 98-100. One of these commenters also
stated its view that Amendment No. 3 addressed the concerns raised
in the OIP. See supra note 72. Furthermore, the Exchange's proposal
with respect to connectivity to Third Party Data Feeds is not novel,
given that Nasdaq similarly charges connectivity fees for third
party data feeds, as reflected on its co-location fee schedule. See
Nasdaq Rule 7034.
    \139\ See also Securities Exchange Act Release No. 34-62397
(June 28, 2010); Securities Exchange Act Release No. 34-66013
(December 20, 2011), 76 FR 80992 (December 27, 2011) (noting ``that
members may choose not to obtain low latency network connectivity
through the Exchange and instead negotiate connectivity options
separately through other vendors on site''); Securities Exchange Act
Release No. 34-76748 (finding the establishment of an exclusive
wireless connection consistent with the Act because, among other
reasons, the alternatives suggested provided the same or similar
speeds as compared to the NYSE's wireless connectivity); Securities
Exchange Act Release No. 34-68735 (finding the establishment of an
exclusive wireless connection consistent with the Act because, among
other reasons, the alternatives suggested provided the same or
similar speeds as compared to Nasdaq's wireless connectivity).
---------------------------------------------------------------------------

    Also, as discussed above, some commenters expressed concern that
the proposed fees would impose a barrier to

entry on smaller broker-dealers and new entrants, and a burden on
competition.\140\ The Commission does not believe that the Current
Proposal would impose a burden on competition inconsistent with the Act
because, as discussed above, viable alternatives to the Exchange's
proposed services exist, both inside and outside the Data Center.
---------------------------------------------------------------------------

    \140\ See supra notes 75-81 and accompanying text.
---------------------------------------------------------------------------

    Finally, the Commission notes that several commenters believed the
originally proposed NYSE Premium Connectivity Fee to be duplicative and
an inequitable allocation of fees.\141\ Because the Exchange eliminated
that fee in Amendment No. 3, the Commission believes that these
concerns have been addressed.\142\
---------------------------------------------------------------------------

    \141\ See supra notes 70-72 and accompanying text.
    \142\ The Commission believes that comments expressing concerns
about proprietary market data fees more generally are outside the
scope of the Current Proposal.
---------------------------------------------------------------------------

    Accordingly, the Commission finds that the Current Proposal is
consistent with the Act.

V. Solicitation of Comments on Partial Amendment No. 4

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether partial Amendment
No. 4 is consistent with the Exchange Act. Comments may be submitted by
any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NYSE-2016-45 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSE-2016-45. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549-1090, on official business days between the hours
of 10:00 a.m. and 3:00 p.m. Copies of such filing will also be
available for inspection and copying at the principal office of the
Exchange. All comments received will be posted without change; the
Commission does not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-
NYSE-2016-45 and should be submitted on or before April 20, 2017.

VI. Accelerated Approval of Proposed Rule Change, as Modified by
Amendment Nos. 1-4

    The Commission finds good cause to approve the proposed rule
change, as modified by Amendment Nos. 1-4, prior to the thirtieth day
after the date of publication of notice of the amended proposal in the
Federal Register. The revisions made to the proposal in partial
Amendment No. 4 \143\ (1) removed reference to the National Stock
Exchange (NSX) from its list of Third Party Systems, (2) added three
additional Third Party Data Feeds--ICE Data Services Consolidated Feed,
ICE Data Services PRD, and ICE Data Services PRD CEP, (3) added
connectivity fees for each of the newly added Third Party Data feeds.
With respect to NSX, the Exchange represents that NSX was acquired by
the NYSE Group on January 31, 2017, making it no longer a Third Party
System. The Commission believes this characterization is consistent
with the NYSE Group's similarly situated affiliated exchanges, NYSEArca
and NYSEMKT, which, like NSX are solely within the NYSE Group's
control. Regarding the ICE Data Services feeds, the Exchange notes that
it has an indirect interest in these feeds because ICE Data Services is
owned by the Exchange's ultimate parent, Intercontinental Exchange,
Inc. As represented in partial Amendment No. 4, the Exchange considers
the ICE Data Services Consolidated Feed (like the NYSE Global Index
feed), a Third Party Data Feed because it includes third party market
data rather than exclusively the proprietary market data of the
Exchange and its affiliated SROs, NYSE MKT and NYSE Arca.\144\ The
Commission believes that partial Amendment No. 4 does not raise issues
not previously raised in the proposed rule change, as modified
Amendment Nos. 1-3, and addressed in Exchange Response Letters I, II,
and III. Accordingly, the Commission finds good cause, pursuant to
Section 19(b)(2) of the Act,\145\ to approve the proposed rule change,
as modified by Amendment Nos. 1-4, on an accelerated basis.
---------------------------------------------------------------------------

    \143\ See partial Amendment No. 4, supra note 14.
    \144\ See id.
    \145\ 15 U.S.C. 78s(b)(2).
---------------------------------------------------------------------------

VII. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\146\ that the proposed rule change (SR-NYSE-2016-45) be, and
hereby is, approved on an accelerated basis.
---------------------------------------------------------------------------

    \146\ See id.
    \147\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\147\
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-06258 Filed 3-29-17; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 83, Number 239 (Thursday, December 13, 2018)]
[Proposed Rules]
[Pages 64045-64046]
[FR Doc No: 2018-26949]

=======================================================================
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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Part 73

[Docket No. FDA-2018-C-4464]

Impossible Foods, Inc.; Filing of Color Additive Petition

AGENCY: Food and Drug Administration, HHS.

ACTION: Notification of petition.

-----------------------------------------------------------------------

SUMMARY: The Food and Drug Administration (FDA or we) is announcing
that we have filed a petition, submitted by Impossible Foods, Inc.,
proposing that the color additive regulations be amended to provide for
the safe use of soy leghemoglobin as a color additive in plant-based,
non-animal derived ground beef analogue products.

DATES: The color additive petition was filed on November 5, 2018.

ADDRESSES: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov and insert the
docket number found in brackets in the heading of this document into
the ``Search'' box and follow the prompts, and/or go to the Dockets
Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT: Ellen Anderson, Center for Food Safety
and Applied Nutrition, Food and Drug Administration, 5001 Campus Dr.,
College Park, MD 20740,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Under section 721(d)(1) of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 379e(d)(1)), we are giving notice
that we have filed a color additive petition (CAP

9C0314), submitted by Impossible Foods, Inc., c/o Exponent, Inc., 1150
Connecticut Avenue NW, Suite 1100, Washington, DC 20036. The petition
proposes to amend the color additive regulations in part 73 (21 CFR
part 73), ``Listing of Color Additives Exempt From Certification,'' to
provide for the safe use of soy leghemoglobin as a color additive in
plant-based, non-animal derived ground beef analogue products.
    The petitioner has claimed that this action is categorically
excluded under 21 CFR 25.32(k) because soy leghemoglobin would be added
directly to food and is intended to remain in food through ingestion by
consumers and is not intended to replace macronutrients in food. In
addition, the petitioner has stated that, to their knowledge, no
extraordinary circumstances exist. If FDA determines a categorical
exclusion applies, neither an environmental assessment nor an
environmental impact statement is required. If FDA determines a
categorical exclusion does not apply, we will request an environmental
assessment and make it available for public inspection.

    Dated: December 7, 2018.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2018-26949 Filed 12-12-18; 8:45 am]
 BILLING CODE 4164-01-P


[Federal Register Volume 78, Number 207 (Friday, October 25, 2013)]
[Rules and Regulations]
[Pages 63852-63853]
[FR Doc No: 2013-25108]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2013-0262; Directorate Identifier 2013-NE-13-AD;
Amendment 39-17548; AD 2013-16-10]
RIN 2120-AA64

Airworthiness Directives; Hamilton Standard Division and Hamilton
Sundstrand Corporation Propellers

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; correction.

-----------------------------------------------------------------------

SUMMARY: The FAA is correcting an airworthiness directive (AD) that
published in the Federal Register. That AD applies to all Hamilton
Standard Division model 6/5500/F and 24PF and Hamilton Sundstrand
Corporation model 14RF, 14SF, 247F, and 568F series propellers. A
maintenance manual number in paragraph (g) of the Compliance section is
incorrect. This document corrects that error. In all other respects,
the original document remains the same.

DATES: This final rule is effective October 25, 2013. The effective
date for AD 2013-16-10 (78 FR 49660, August 15, 2013) remains September
19, 2013.

ADDRESSES: You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Management Facility
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. The AD docket contains this AD, the regulatory evaluation,
any comments received, and other information. The address for the
Docket Office (phone:<PHONE_NUMBER>) is Document Management Facility,
U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE.,
Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: Michael Schwetz, Aerospace Engineer,
Boston Aircraft Certification Office, FAA, 12 New England Executive
Park, Burlington, MA 01803; phone:<PHONE_NUMBER>; fax:<PHONE_NUMBER>;
email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: AD 2013-16-10, Amendment 39-17548 (78 FR
49660, August 15, 2013), currently requires incorporating inspections,
based on a calendar time, into the propeller maintenance schedule for
Hamilton Standard Division model 6/5500/F and 24PF and Hamilton
Sundstrand Corporation model 14RF, 14SF, 247F, and 568F series
propellers.

    As published, the maintenance manual number, P4202, as part of the
model/manual number, 247F-1/P4202, in paragraph (g) of the Compliance
section is incorrect.
    No other part of the preamble or regulatory information has been
changed; therefore, only the changed portion of the final rule is being
published in the Federal Register.
    The effective date for AD 2013-16-10 (78 FR 49660, August 15, 2013)
remains September 19, 2013.

Correction of Regulatory Text

Sec.  39.13  [Corrected]

0
In the Federal Register of August 15, 2013, on page 49662, in the 1st
column, paragraph (g) of AD 2013-16-10 is corrected to read as follows:
* * * * *

(g) MI for Blades and Hubs That Do Not Have an Updated ALS

    For Hamilton Standard Division propeller models 6/5500/F and 24PF
and Hamilton Sundstrand Corporation propeller models 14RF-19, 14RF-37,
14SF-11, 14SF-15, 14SF-23, 14SF-17, 14SF-19, 247F-1, 247F-1E, 247F-3,
568F-1, 568F-5, and 568F-7, that do not have an approved update to the
ALS, within one year after the effective date of this AD, perform an MI
on the blades and hubs no later than seven years after the DSI. The DSI
will begin at initial installation after the most recent MI or initial
installation after production. Guidance on the inspections can be found
in the applicable Hamilton Standard Division models/manuals 6/5500/F/
P5190 and 24PF/61-12-01, and Hamilton Sundstrand Corporation models/
manuals 14RF-19/P5199, 14RF-37/P5209, 14SF-11/P5196, 14SF-15/P5197,
14SF-23/P5197, 14SF-17/P5198, 14SF-19/P5198, 247F-1/P5202, 247F-1E/
P5204, 247F-3/P5205, 568F-1/P5214, 568F-5/P5203, and 568F-7/P5211.
* * * * *

    Issued in Burlington, Massachusetts, on October 15, 2013.
Colleen M. D'Alessandro,
Assistant Directorate Manager, Engine & Propeller Directorate, Aircraft
Certification Service.
[FR Doc. 2013-25108 Filed 10-24-13; 8:45 am]
BILLING CODE 4910-13-P