[Federal Register Volume 85, Number 37 (Tuesday, February 25, 2020)]
[Notices]
[Pages 10795-10803]
[FR Doc No: 2020-03641]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-88240; File No. SR-NYSECHX-2020-05]

Self-Regulatory Organizations; NYSE Chicago, Inc.; Notice of
Filing of Proposed Rule Change To Amend the Schedule of Wireless
Connectivity Fees and Charges To Add Wireless Connectivity Services

February 19, 2020.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (``Act''),\2\ and Rule 19b-4 thereunder,\3\ notice is hereby given
that on February 11, 2020, the NYSE Chicago, Inc. (``NYSE Chicago'' or
``Exchange'') filed with the Securities and Exchange Commission
(``SEC'' or ``Commission'') the proposed rule change as described in
Items I, II, and III below, which Items have been prepared by the
Exchange. The Commission is publishing this notice to solicit comments
on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to add wireless connectivity services that
transport the market data of certain affiliates of the Exchange to the
schedule of Wireless Connectivity Fees and Charges (the ``Wireless Fee
Schedule''). The proposed change is available on the Exchange's website
at www.nyse.com, at the principal office of the Exchange, and at the
Commission's Public Reference Room.

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

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

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

1. Purpose
    The Exchange proposes to add wireless connectivity services that
transport market data of three Exchange affiliates, New York Stock
Exchange LLC (``NYSE''), NYSE Arca, Inc. (``NYSE Arca'') and NYSE
National, Inc. (``NYSE National'') to the Wireless Fee Schedule.\4\ A
market participant is not able to use the wireless connectivity
services to connect to Exchange market data.
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    \4\ The NYSE, NYSE American LLC, NYSE Arca, and NYSE National
are national securities exchanges that are affiliates of the
Exchange (collectively, the ``Affiliate SROs''). The wireless
connectivity services described in this filing do not transport the
market data of the Exchange or NYSE American LLC. The Exchange filed
a proposed rule change that would establish the Wireless Fee
Schedule. See SR-NYSECHX-2020-02 (January 30, 2020). Should such
filing be approved before the present filing, the changes to the
Wireless Fee Schedule proposed herein would appear at the end of the
Wireless Fee Schedule, after the text proposed in the January, 2020
filing. In such case, the Exchange will amend the present filing if
required.
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    The wireless connections can be purchased by market participants in
three data centers that are owned and operated by third parties
unaffiliated with the Exchange: (1) Carteret, New Jersey, (2) Secaucus,
New Jersey, and (3) Markham, Canada (collectively, the ``Third Party
Data Centers''). A market participant in a Third Party Data Center that
purchases a wireless connection (``Wireless Market Data Connection'')
receives connectivity to certain NYSE, NYSE Arca and NYSE National
market data feeds (collectively, the ``Selected Market Data'') \5\
distributed from the Mahwah, New Jersey data center. Customers that
purchase a wireless connection to Selected Market Data are charged an
initial and monthly fee for the service of transporting the Selected
Market Data.
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    \5\ In the Carteret and Secaucus Third Party Data Centers, a
market participant may use a Wireless Market Data Connection to
connect to the NYSE Integrated Feed data feed, the NYSE Arca
Integrated Feed data feed, and the NYSE National Integrated Feed
data feed. In the Markham, Canada Third Party Data Center, a market
participant may use a Wireless Market Data Connection to connect to
the NYSE BBO and Trades data feeds and the NYSE Arca BBO and Trades
data feeds.
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    The Exchange does not believe that the present proposed change is a
change to the ``rules of an exchange'' \6\ required to be filed with
the Commission under the Act. The definition of ``exchange'' under the
Act includes ``the market facilities maintained by such exchange.'' \7\
Based on its review of the relevant facts and circumstances, and as
discussed further below, the Exchange has concluded that the Wireless
Market Data Connections are not facilities of the Exchange within the
meaning of the Act, and therefore do not need to be included in its
rules.
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    \6\ See 15 U.S.C. 78c(a)(27) (defining the term ``rules of an
exchange'').
    \7\ 15 U.S.C. 78c(a)(1). See 15 U.S.C. 78c(a)(2) (defining the
term ``facility'' as applied to an exchange).
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    The Exchange is making the current proposal solely because the
Staff of the Commission has advised the Exchange that it believes the
Wireless Market Data Connections are facilities of the Exchange and so
must be filed as part of its rules.\8\ The Staff has not set forth the
basis of its conclusion beyond verbally noting that the Wireless Market
Data Connections are provided by an affiliate of the Exchange and a
market participant could use a Wireless Market Data Connection to
connect to market data feeds of Affiliate SROs.\9\
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    \8\ Telephone conversation between Commission staff and
representatives of the Exchange, December 12, 2019.
    \9\ Id. The Commission has previously stated that services were
facilities of an exchange subject to the rule filing requirements
without fully explaining its reasoning. In 2010, the Commission
stated that exchanges had to file proposed rule changes with respect
to co-location because ``[t]he Commission views co-location services
as being a material aspect of the operation of the facilities of an
exchange.'' The Commission did not specify why it reached that
conclusion. See Securities Exchange Act Release No. 61358 (January
14, 2010), 75 FR 3594 (January 21, 2010), at note 76.
    In addition, in 2014, the Commission instituted proceedings to
determine whether to disapprove a proposed rule change by The NASDAQ
Stock Market LLC (``Nasdaq'') on the basis that Nasdaq's ``provision
of third-party market data feeds to co-located clients appears to be
an integral feature of its co-location program, and co-location
programs are subject to the rule filing process.'' Securities
Exchange Act Release No. 72654 (July 22, 2014), 79 FR 43808 (July
28, 2014) (SR-NASDAQ-2014-034). In its order, the Commission did not
explain why it believed that the provision of third party data was
an integral feature of co-location, or if it believed that it was a
facility of Nasdaq, although the Nasdaq filing analyzed each prong
of the definition of facility in turn. See Securities Exchange Act
Release No. 71990 (April 22, 2014), 79 FR 23389 (April 28, 2014)
(SR-NASDAQ-2014-034).
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    The Exchange expects the proposed change to be operative 60 days
after the present filing becomes effective.
The Exchange and the ICE Affiliates
    To understand the Exchange's conclusion that the Wireless Market
Data Connections are not facilities of the Exchange within the meaning
of the Act, it is important to understand the very real distinction
between the Exchange and its corporate affiliates (the ``ICE
Affiliates''). The Exchange is an indirect subsidiary of
Intercontinental Exchange, Inc. (``ICE''). Around the world, ICE
operates seven regulated exchanges in addition to the Exchange and the
Affiliate SROs, including futures markets, as well as six clearing
houses. Among others, the ICE Affiliates are subject to the
jurisdiction of regulators in the U.S., U.K., E.U., the Netherlands,
Canada and Singapore.\10\ In all, the ICE Affiliates include hundreds
of ICE subsidiaries, including more than thirty that are significant
legal entity subsidiaries as defined by Commission rule.\11\
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    \10\ Intercontinental Exchange, Inc. Annual Report on Form 10-K
for the year ended December 31, 2018, Exhibit 21.1 (filed February
7, 2019), at 15-16.
    \11\ Id. at Exhibit 21.1.
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    Through its ICE Data Services (``IDS'') business,\12\ ICE operates
the ICE Global Network, a global connectivity network whose
infrastructure provides access to over 150 global markets, including
the Exchange and Affiliate SROs, and over 750 data sources. All the ICE
Affiliates are ultimately controlled by ICE, as the indirect parent
company, but generally they do not control each other. In the present
case, it is IDS, not the Exchange, that provides the Wireless Market
Data Connections to market participants. The Exchange does not control
IDS.
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    \12\ The IDS business operates through several different ICE
Affiliates, including NYSE Technologies Connectivity, Inc., an
indirect subsidiary of the NYSE.
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The Wireless Market Data Connections
    As noted above, if a market participant in one of the Third Party
Data Centers wishes to connect to one or more of the data feeds of the
Affiliate SROs that make up the Selected Market Data,\13\ it may opt to
purchase a Wireless Market Data Connection to the data.
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    \13\ See note 5, supra for a list of the Selected Market Data
available in each Third Party Data Center.
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    The Selected Market Data is generated at the Mahwah data center in
the trading and execution systems of the NYSE, NYSE Arca and NYSE
National (collectively, the ``SRO Systems''). In each case, the NYSE,
NYSE Arca or NYSE National, as applicable, files with the Commission
for the Selected Market Data it generates, and the related fees.\14\

The filed market data fees apply to all Selected Market Data customers
no matter what connectivity provider they use.
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    \14\ See Securities Exchange Act Release Nos. 74128 (January 23,
2015), 80 FR 4951 (January 29, 2015) (SR-NYSE-2015-03) (notice of
filing and immediate effectiveness of proposed rule change
establishing the NYSE Integrated Feed data feed); 76485 (November
20, 2015), 80 FR 74158 (November 27, 2015) (SR-NYSE-2015-57) (notice
of filing and immediate effectiveness of a proposed rule change
establishing fees for the NYSE Integrated Feed); 62181 (May 26,
2010), 75 FR 31488 (June 3, 2010) (SR-NYSE-2010-30) (order approving
proposed rule change to establish the NYSE BBO service); 59290
(January 23, 2009), 74 FR 5707 (January 30, 2009) (SR-NYSE-2009-05)
(notice of filing and immediate effectiveness of proposed rule
change to introduce a pilot program for NYSE Trades); 59606 (March
19, 2009), 74 FR 13293 (March 26, 2009) (SR-NYSE-2009-04) (order
approving proposed rule change to establish fees for NYSE Trades);
62188 (May 27, 2010), 75 FR 31484 (June 3, 2010) (SR-NYSEArca-2010-
23) (order approving proposed rule change to modify the fees for
NYSE Arca Trades, to establish the NYSE Arca BBO service and related
fees, and to provide an alternative unit-of-count methodology for
those services); 59289 (January 23, 2009), 74 FR 5711 (January 30,
2009) (SR-NYSEArca-2009-06) (notice of filing and immediate
effectiveness of proposed rule change to introduce a pilot program
for NYSE Arca Trades); 59598 (March 18, 2009), 74 FR 12919 (March
25, 2009) (SR-NYSEArca-2009-05) (order approving proposed rule
change to establish fees for NYSE Arca Trades); 65669 (November 2,
2011), 76 FR 69311 (November 8, 2011) (SR-NYSEArca-2011-78) (notice
of filing and immediate effectiveness of proposed rule change
offering the NYSE Arca Integrated Feed); 66128 (January 10, 2012),
77 FR 2331 (January 17, 2012) (SR-NYSEArca-2011-96) (notice of
filing and immediate effectiveness of a proposed rule change
establishing fees for NYSE Arca Integrated Feed); 83350 (May 31,
2018), 83 FR 26332 (June 6, 2018) (SR-NYSENAT-2018-09) (notice of
filing and immediate effectiveness of proposed rule change
establishing the NYSE National Integrated Feed data feed); and 87797
(December 18, 2019), 84 FR 71025 (December 26, 2019) (SR-NYSENAT-
2019-31) (notice of filing and immediate effectiveness of proposed
rule change to establish fees for the NYSE National Integrated
Feed).
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    When a market participant wants to connect to Selected Market Data,
it requests a connection from the provider of its choice. All
providers, including ICE Affiliates, may only provide the market
participant with connectivity once the provider receives confirmation
from the NYSE, NYSE Arca or NYSE National, as applicable, that the
market participant is authorized to receive the requested Selected
Market Data. Accordingly, when a market participant requests a Wireless
Market Data Connection, IDS's first step is to obtain
authorization.\15\
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    \15\ When requesting authorization from the NYSE, NYSE Arca or
NYSE National to provide a customer with Selected Market Data, the
ICE Affiliate providing the Wireless Market Data Connection uses the
same on-line tool as all data vendors.
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    IDS's next step is to set up the Wireless Market Data Connection
for the market participant. In the connection, IDS collects the
Selected Market Data, then sends it over the Wireless Market Data
Connection to the IDS access center located in the Third Party Data
Center. The customer connects to the Selected Market Data at the Third
Party Data Center.\16\
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    \16\ A cable connects the IDS and customer equipment in the
Markham Third Party Data Center. If the customer is located in
either the Carteret or Secaucus Third Party Data Center, the
customer buys a cross connect from IDS.
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    The customer is charged by IDS an initial and monthly fee for the
Wireless Market Data Connection. By contrast, IDS will not bill the
customer for the Selected Market Data: The NYSE, NYSE Arca or NYSE
National, as applicable, bill market data subscribers directly,
irrespective of whether the market data subscribers receive the
Selected Market Data over a Wireless Market Data Connection or from
another connectivity provider.
    Market participants in the Third Party Data Centers that want to
connect to Selected Market Data have options, as other providers offer
connectivity to Selected Market Data.\17\ A market participant in the
Carteret or Secaucus Third Party Data Center may purchase a wireless
connection to the NYSE and NYSE Arca Integrated Feed data feeds from at
least two other providers of wireless connectivity. A market
participant in any of the Third Party Data Centers or the Mahwah data
center also may create a proprietary wireless market data connection,
connect through another market participant, or utilize fiber
connections offered by the Exchange, ICE Affiliates, and other service
providers and third party telecommunications providers.
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    \17\ The other providers obtain Selected Market Data from IDS at
the Mahwah data center and send it over their own networks, fiber or
wireless, to the Third Party Data Centers.
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The Wireless Market Data Connections Are Not Facilities of the Exchange
The Definition of ``Exchange''
    The definition of ``exchange'' focuses on the exchange entity and
what it does: \18\
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    \18\ 15 U.S.C. 78c(a)(1).

    The term ``exchange'' means any organization, association, or
group of persons, whether incorporated or unincorporated, which
constitutes, maintains, or provides a market place or facilities for
bringing together purchasers and sellers of securities or for
otherwise performing with respect to securities the functions
commonly performed by a stock exchange as that term is generally
understood, and includes the market place and the market facilities
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maintained by such exchange.

    If the ``exchange'' definition included all of an exchange's
affiliates, the ``Exchange'' would encompass a global network of
futures markets, clearing houses, and data providers, and all of those
entities worldwide would be subject to regulation by the Commission.
That, however, is not what the definition in the Act provides.
    The Exchange and the Affiliate SROs fall squarely within the Act's
definition of an ``exchange'': They each provide a market place to
bring together purchasers and sellers of securities and perform with
respect to securities the functions commonly performed by a stock
exchange.
    That is not true for the non-exchange ICE Affiliates. Those ICE
Affiliates do not provide such a marketplace or perform ``with respect
to securities the functions commonly performed by a stock exchange,''
and therefore they are not an ``exchange'' or part of the ``Exchange''
for purposes of the Act. Accordingly, in conducting its analysis, the
Exchange does not automatically collapse the ICE Affiliates into the
Exchange. The Wireless Market Data Connections are also not part of the
Exchange, as they are services, and as such cannot be part of an
``organization, association or group of persons'' with the Exchange.
    In Rule 3b-16 the Commission further defined the term ``exchange''
under the Act, stating that: \19\
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    \19\ 17 CFR 240.3b-16(a).

    (a) An organization, association, or group of persons shall be
considered to constitute, maintain, or provide ``a market place or
facilities for bringing together purchasers and sellers of
securities or for otherwise performing with respect to securities
the functions commonly performed by a stock exchange,'' as those
terms are used in section 3(a)(1) of the Act . . . if such
organization, association, or group of persons:
    (1) Brings together the orders for securities of multiple buyers
and sellers; and
    (2) Uses established, non-discretionary methods (whether by
providing a trading facility or by setting rules) under which such
orders interact with each other, and the buyers and sellers entering
such orders agree to the terms of a trade.

    The non-exchange ICE Affiliates do not bring ``together orders for
securities of multiple buyers and sellers,'' and so are not an
``exchange'' or part of the ``Exchange'' for purposes of Rule 3b-16.
Indeed, it is not possible to use a Wireless Market Data Connection to
effect a transaction on the Exchange. Rather, they are one-way
connections away from the Mahwah data center.
    The relevant question, then, is whether the Wireless Market Data
Connections are ``facilities'' of the Exchange.
The Definition of ``Facility''
    The Act defines a ``facility'' \20\ as follows:
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    \20\ 15 U.S.C. 78c(a)(2).

    The term ``facility'' when used with respect to an exchange
includes [1] its premises, [2] tangible or intangible property
whether on the premises or not, [3] any right to the use of such
premises or property or any service thereof for the purpose of
effecting or reporting a transaction on an exchange (including,
among other things, any system of communication to or from the
exchange, by

ticker or otherwise, maintained by or with the consent of the
exchange), and [4] any right of the exchange to the use of any
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property or service.

    In 2015 the Commission noted that whether something is a
``facility'' is not always black and white, as ``any determination as
to whether a service or other product is a facility of an exchange
requires an analysis of the particular facts and circumstances.'' \21\
Accordingly, the Exchange understands that the specific facts and
circumstances of the Wireless Market Data Connections must be assessed
before a determination can be made regarding whether or not they are
facilities of the Exchange.\22\
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    \21\ Securities Exchange Act Release No. 76127 (October 9,
2015), 80 FR 62584 (October 16, 2015) (SR-NYSE-2015-36), at note 9
(order approving proposed rule change amending Section 907.00 of the
Listed Company Manual). See also 79 FR 23389, supra note 9, at note
4 (noting that that the definition of the term ``facility'' has not
changed since it was originally adopted) and 23389 (stating that the
SEC ``has not separately interpreted the definition of
`facility''').
    \22\ As with the definition of ``exchange,'' the ICE Affiliates
do not automatically fall within the definition of a ``facility.''
The definition focuses on ownership and the right to use properties
and services, not corporate relationships. Indeed, if the term
``exchange'' in the definition of a facility included ``an exchange
and its affiliates,'' then the rest of the functional prongs of the
facility definition would be meaningless. Fundamental rules of
statutory construction dictate that statutes be interpreted to give
effect to each of their provisions, so as not to render sections of
the statute superfluous.
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    The first prong of the definition is that ``facility,'' when used
with respect to an exchange, includes ``its premises.'' That prong is
not applicable in this case, because the Wireless Market Data
Connections are not premises of the Exchange. The term ``premises'' is
generally defined as referring to an entity's building, land, and
appurtenances.\23\ The wireless network that runs from the Mahwah data
center to the Third Party Data Centers, much of which is actually
owned, operated and maintained by a non-ICE entity,\24\ is not the
premises of the Exchange. The portion of the Mahwah data center where
the ``exchange'' functions are performed--i.e. the SRO Systems that
bring together purchasers and sellers of securities and perform with
respect to securities the functions commonly performed by a stock
exchange--could be construed as the ``premises'' of the Exchange, but
the same is not true for a wireless network that is almost completely
outside of the Mahwah data center.
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    \23\ See, e.g., definition of ``premises'' in Miriam-Webster
Dictionary, at https://www.merriam-webster.com/dictionary/premises,
and Cambridge English Dictionary, at https://dictionary.cambridge.org/us/dictionary/english/premises.
    \24\ A non-ICE entity owns, operates and maintains the wireless
network between the Mahwah data center and the Carteret and Secaucus
Third Party Data Centers pursuant to a contract between the non-ICE
entity and an ICE Affiliate.
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    The second prong of the definition of ``facility'' provides that a
facility includes the exchange's ``tangible or intangible property
whether on the premises or not.'' The Wireless Market Data Connections
are not the property of the Exchange: They are services. The underlying
wireless network is owned by ICE Affiliates and a non-ICE entity. As
noted, the Act does not automatically collapse affiliates into the
definition of an ``exchange.'' A review of the facts set forth above
shows that there is a real distinction between the Exchange and its ICE
Affiliates with respect to the Wireless Market Data Connections, and so
something owned by an ICE Affiliate is not owned by the Exchange.
    The third prong of the definition of ``facility'' provides that a
facility includes

    any right to the use of such premises or property or any service
thereof for the purpose of effecting or reporting a transaction on
an exchange (including, among other things, any system of
communication to or from the exchange, by ticker or otherwise,
maintained by or with the consent of the exchange).\25\
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    \25\ 15 U.S.C. 78c(a)(2).

    This prong does not capture the Wireless Market Data Connections
because the Exchange does not have the right to use the Wireless Market
Data Connections to effect or report a transaction on the Exchange. ICE
Affiliates and a non-ICE entity own and maintain the wireless network
underlying the Wireless Market Data Connections, and ICE Affiliates,
not the Exchange, offer and provide the Wireless Market Data
Connections to customers. The Exchange does not know whether or when a
customer has entered into an agreement for a Wireless Market Data
Connection and has no right to approve or disapprove of the provision
of a Wireless Market Data Connection, any more than it would if the
provider was a third party.\26\ It does not put the Selected Market
Data content onto the Wireless Market Data Connections or send it to
customers. A market participant cannot use a Wireless Market Data
Connection to connect to Exchange market data. When a customer
terminates a Wireless Market Data Connection, the Exchange does not
consent to the termination.
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    \26\ The relevant Affiliate SRO provides confirmation to IDS
that a customer is authorized to receive the relevant Selected
Market Data, as noted above, but does not know how or where that
customer receives it. If the customer is already taking the relevant
Selected Market Data through another medium or at a different site,
IDS does not need to seek approval from the relevant Affiliate SRO.
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    In fact, it is not possible to use a Wireless Market Data
Connection to effect a transaction on the Exchange: They are one-way
connections away from the Mahwah data center. Customers cannot use them
to send trading orders or information of any sort to the SRO Systems,
and the Exchange does not use them to send confirmations of trades.
Instead, Wireless Market Data Connections solely carry Selected Market
Data, which does not include Exchange market data.
    The Exchange believes the example in the parenthetical in the third
prong of the definition of ``facility'' cannot be read as an
independent prong of the definition. Such a reading would ignore that
the parentheses and the word ``including'' clearly indicate that ``any
system of communication to or from an exchange . . . maintained by or
with the consent of the exchange'' is explaining the preceding text. By
its terms, the parenthetical is providing a non-exclusive example of
the type of property or service to which the prong refers, and does not
remove the requirement that there must be a right to use the premises,
property or service to effect or report a transaction on an exchange.
It is making sure the reader understands that ``facility'' includes a
ticker system that an exchange has the right to use, not creating a new
fifth prong to the definition. In fact, if the ``right to use''
requirement were ignored, every communication provider that connected
to an exchange, including any broker-dealer system and
telecommunication network, would become a facility of that exchange so
long as the exchange consented to the connection, whether or not the
connection was used to trade or report a trade, and whether or not the
exchange had any right at all to the use of the connection.
    The fourth prong of the definition provides that a facility
includes ``any right of the exchange to the use of any property or
service.'' As described above, the Exchange does not have the right to
use the Wireless Market Data Connections. Instead, the Wireless Market
Data Connections are used by market participants who decide to use that
service.
    Accordingly, for all the reasons discussed above, the wireless
connectivity to Selected Market Data provided by ICE Affiliates is not
a facility of the Exchange.
    The legal conclusion that the Wireless Market Data Connections are
not

facilities of the Exchange is strongly supported by the facts. The
Wireless Market Data Connections are neither necessary for, nor
integrally connected to, the operations of the Exchange. They are one-
way connections away from the Mahwah data center. A market participant
cannot use a Wireless Market Data Connection to send trading orders or
information to the SRO Systems or to connect to Exchange market data.
In this context, IDS simply acts as a vendor, selling connectivity to
Selected Market Data just like the other vendors that offer wireless
connections in the Carteret and Secaucus Third Party Data Centers and
fiber connections to all the Third Party Data Centers. The fact that in
this case it is ICE Affiliates that offer the Wireless Market Data
Connections does not make the Wireless Market Data Connections
facilities of the Exchange any more than are the connections offered by
other parties.
    Further, the Exchange believes that requiring it to file this
proposed rule change is not necessary in order for the Commission to
ensure that the Exchange is satisfying its requirements under the Act.
Because, as described above, the Wireless Market Data Connections are
not necessary for, nor connected to, the operations of the Exchange,
and customers are not required to use the Wireless Market Data
Connections, holding the Wireless Market Data Connections to the
statutory standards in Section 6(b) serves no purpose.
    Instead, the sole impact of the requirement that the Exchange file
the Wireless Market Data Connections is to place an undue burden on
competition on the ICE Affiliates that offer the market data
connections, compared to their market competitors. This filing
requirement, thus, itself is inconsistent with the requirement under
Section 6(b)(8) of the Act that the rules of the exchange not ``impose
any burden on competition not necessary or appropriate in furtherance
of the purposes of [the Act].'' \27\ This burden on competition arises
because IDS would be unable, for example, to offer a client or
potential client a connection to a new data feed it requests, without
the delay and uncertainty of a filing, but its competitors will.
Similarly, if a competitor decides to undercut IDS' fees because IDS,
unlike the competitor, has to make its fees public, IDS will not be
able to respond quickly, if at all. Indeed, because its competitors are
not required to make their services or fees public, and are not subject
to a Commission determination of whether such services or fees are
``not unfairly discriminatory'' or equitably allocated, IDS is at a
competitive disadvantage from the very start.
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    \27\ 15 U.S.C. 78f(b)(8).
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The Proposed Service and Fees
    As noted above, the Exchange proposes to add to its rules the
Wireless Market Data Connections to Selected Market Data, for an
initial and monthly fee.
    A market participant would be charged a $5,000 non-recurring
initial charge for each Wireless Market Data Connection and a monthly
recurring charge (``MRC'') per connection that would vary depending
upon the feed and the location of the connection. The proposal would
waive the first month's MRC, to allow customers to test a new Wireless
Market Data Connection for a month before incurring any MRCs, and the
Exchange proposes to add text to the Wireless Fee Schedule accordingly.
    The Exchange proposes to add a section to the Wireless Fee Schedule
under the heading ``B. Wireless Connectivity to Market Data'' to set
forth the fees charged by IDS related to the Wireless Market Data
Connections, as follows:

------------------------------------------------------------------------
            Type of service                      Amount of charge
------------------------------------------------------------------------
NYSE Integrated Feed: Wireless           $5,000 per connection initial
 Connection in Carteret access center.    charge plus monthly charge per
                                          connection of $10,500.
NYSE Arca Integrated Feed: Wireless      $5,000 per connection initial
 Connection in Carteret access center.    charge plus monthly charge per
                                          connection of $10,500.
NYSE National Integrated Feed: Wireless  $5,000 per connection initial
 Connection in Carteret access center.    charge plus monthly charge per
                                          connection of $5,250.
NYSE Integrated Feed and NYSE Arca       $5,000 per connection initial
 Integrated Feed: Wireless Connection     charge plus monthly charge per
 in Carteret access center.               connection of $18,500.
NYSE Integrated Feed, NYSE Arca          $5,000 per connection initial
 Integrated Feed, and NYSE National       charge plus monthly charge per
 Integrated Feed: Wireless Connection     connection of $21,000.
 in Carteret access center.
NYSE Integrated Feed: Wireless           $5,000 per connection initial
 Connection in Secaucus access center.    charge plus monthly charge per
                                          connection of $10,500.
NYSE Arca Integrated Feed: Wireless      $5,000 per connection initial
 Connection in Secaucus access center.    charge plus monthly charge per
                                          connection of $10,500.
NYSE National Integrated Feed: Wireless  $5,000 per connection initial
 Connection in Secaucus access center.    charge plus monthly charge per
                                          connection of $5,250.
NYSE Integrated Feed and NYSE Arca       $5,000 per connection initial
 Integrated Feed: Wireless Connection     charge plus monthly charge per
 in Secaucus access center.               connection of $18,500.
NYSE Integrated Feed, NYSE Arca          $5,000 per connection initial
 Integrated Feed, and NYSE National       charge plus monthly charge per
 Integrated Feed: Wireless Connection     connection of $21,000.
 in Secaucus access center.
NYSE BBO and Trades: Wireless            $5,000 per connection initial
 Connection in Markham, Canada access     charge plus monthly charge per
 center.                                  connection of $6,500.
NYSE Arca BBO and Trades: Wireless       $5,000 per connection initial
 Connection in Markham, Canada access     charge plus monthly charge per
 center.                                  connection of $6,500.
------------------------------------------------------------------------

    There is limited bandwidth available on the wireless network to the
Markham, Canada Third Party Data Center. Accordingly, such Wireless
Market Data Connections do not transport information for all of the
symbols included in the NYSE BBO and Trades and NYSE Arca BBO and
Trades data feeds. Rather, IDS provides connectivity to a selection of
such data feeds, including the data for which IDS believes there is
demand. When a market participant requests a Wireless Market Data
Connection to Markham, it receives connectivity to the portions of

the NYSE BBO and Trades and NYSE Arca BBO and Trades data that IDS
transmits wirelessly. The customer then determines the symbols for
which it will receive data. The Exchange does not have visibility into
which portion of the data feed a given customer receives.
Application and Impact of the Proposed Change
    The proposed change would apply to all customers equally. The
proposed change would not apply differently to distinct types or sizes
of market participants. Customers that require other types or sizes of
network connections between the Mahwah data center and the access
centers could still request them. As is currently the case, the
purchase of any connectivity service is completely voluntary and the
Wireless Fee Schedule is applied uniformly to all customers.
Competitive Environment
    Other providers offer connectivity to Selected Market Data in the
Third Party Data Centers.\28\ Based on the information available to it,
the Exchange believes that a market participant in the Carteret or
Secaucus Third Party Data Center may purchase a wireless connection to
the NYSE and NYSE Arca Integrated Feed data feeds from at least two
other providers of wireless connectivity. The Exchange believes that
the wireless connections offered by non-ICE entities provide
connectivity at the same or similar speed as the Wireless Market Data
Connections, and at the same or similar cost. The Exchange believes the
Wireless Market Data Connections between the Mahwah data center and the
Markham Third Party Data Center are the first public, commercially
available wireless connections for Selected Market Data between the two
points, creating a new connectivity option for customers in Markham. A
market participant in any of the Third Party Data Centers or the Mahwah
data center also may create a proprietary wireless market data
connection, connect through another market participant, or utilize
fiber connections offered by the Exchange, ICE Affiliates, and other
service providers and third party telecommunications providers.
---------------------------------------------------------------------------

    \28\ Third party providers obtain Selected Market Data from IDS
at the Mahwah data center and send it over their own networks, fiber
or wireless, to the Third Party Data Centers.
---------------------------------------------------------------------------

    Wireless connections involve beaming signals through the air
between antennas that are within sight of one another. Because the
signals travel a straight, unimpeded line, and because light waves
travel faster through air than through glass (fiber optics), wireless
messages have lower latency than messages travelling through fiber
optics.\29\ At the same time, as a general rule wireless networks have
less uptime than fiber networks. Wireless networks are directly and
immediately affected by adverse weather conditions, which can cause
message loss and outage periods. Wireless networks cannot be configured
with redundancy in the same way that fiber networks can. As a result,
an equipment or weather issue at any one location on the network will
cause the entire network to have an outage. In addition, maintenance
can take longer than it would with a fiber based network, as the
relevant tower may be in a hard to reach location, or weather
conditions may present safety issues, delaying technicians servicing
equipment. Even under normal conditions, a wireless network will have a
higher error rate than a fiber network of the same length.
---------------------------------------------------------------------------

    \29\ See Securities Exchange Act Release No. 76748 (December 23,
2015), 80 FR 81609 (December 30, 2015) (SR-NYSE-2015-52) (order
approving offering of a wireless connection to allow Users to
receive market data feeds from third party markets and to reflect
changes to the Exchange's price list related to these services).
---------------------------------------------------------------------------

    The proposed Wireless Market Data Connections traverse through a
series of towers equipped with wireless equipment, including, in the
case of the Carteret and Secaucus connections, a pole on the grounds of
the Mahwah data center. With the exception of the non-ICE entity that
owns the wireless network used for the Wireless Connections to Secaucus
and Carteret,\30\ third parties do not have access to such pole.
However, access to such pole is not required for third parties to
establish wireless networks that can compete with the Wireless Market
Data Connections to the Carteret and Secaucus Third Party Data Centers,
as witnessed by the existing wireless connections offered by non-ICE
entities competitors.
---------------------------------------------------------------------------

    \30\ See note 24, supra.
---------------------------------------------------------------------------

    In addition, proximity to a data center is not the only determinant
of a wireless network's latency. Rather, the latency of a wireless
network depends on several factors. Variables include the wireless
equipment utilized; the route of, and number of towers or buildings in,
the network; and the fiber equipment used at either end of the
connection. Moreover, latency is not the only consideration that a
customer may have in selecting a wireless network to connect to
Selected Market Data. Other considerations may include the amount of
network uptime; the equipment that the network uses; the cost of the
connection; and the applicable contractual provisions. Indeed, fiber
network connections may be more attractive to some market participants
as they are more reliable and less susceptible to weather conditions.
2. Statutory Basis
    Although the Exchange does not believe that the present proposed
change is a change to the ``rules of an exchange'' \31\ required to be
filed with the Commission under the Act, the Exchange believes that the
proposed rule change is consistent with Section 6(b) of the Act,\32\ in
general, and furthers the objectives of Section 6(b)(5) of the Act,\33\
in particular, because it is designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade, to foster cooperation and coordination with
persons engaged in regulating, clearing, settling, processing
information with respect to, and facilitating transactions in
securities, to remove impediments to, and perfect the mechanisms of, a
free and open market and a national market system and, in general, to
protect investors and the public interest and does not unfairly
discriminate between customers, issuers, brokers, or dealers. The
Exchange also believes that the proposed rule change is consistent with
Section 6(b)(4) of the Act,\34\ because it provides for the equitable
allocation of reasonable dues, fees, and other charges among its
members, issuers and other persons using its facilities and does not
unfairly discriminate between customers, issuers, brokers or dealers.
---------------------------------------------------------------------------

    \31\ See 15 U.S.C. 78c(a)(27) (defining the term ``rules of an
exchange'').
    \32\ 15 U.S.C. 78f(b).
    \33\ 15 U.S.C. 78f(b)(5).
    \34\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

The Proposed Change Is Reasonable
    The Exchange believes its proposal is reasonable.
    Based on the information available to it, the Exchange believes
that a market participant in the Carteret or Secaucus Third Party Data
Center may purchase a wireless connection to the NYSE and NYSE Arca
Integrated Feed data feeds from at least two other providers of
wireless connectivity. The Exchange believes that the wireless
connections offered by non-ICE entities provide connectivity at the
same or similar speed as the Wireless Market Data Connections, and at
the same or similar cost. The Exchange believes the Wireless Market
Data Connections between the Mahwah data center and the Markham Third
Party Data Center

are the first public, commercially available wireless connections for
Selected Market Data between the two points, creating a new
connectivity option for customers in Markham. A market participant in
any of the Third Party Data Centers or the Mahwah data center also may
create a proprietary wireless market data connection, connect through
another market participant, or utilize fiber connections offered by the
Exchange, ICE Affiliates, and other service providers and third party
telecommunications providers.
    Market participants' considerations in determining what
connectivity to purchase may include latency; the amount of network
uptime; the equipment that the network uses; the cost of the
connection; and the applicable contractual provisions. Indeed, fiber
network connections may be more attractive to some market participants
as they are more reliable and less susceptible to weather conditions.
    The Exchange believes that the proposed pricing for the Wireless
Market Data Connections is reasonable because it allows customers to
select the connectivity option that best suits their needs. A market
participant that opts for Wireless Market Data Connections would be
able to select the specific Selected Market Data feed that it wants to
receive in accordance with its needs, thereby helping it tailor its
operations to the requirements of its business operations. The fees
also reflect the benefit received by market participants in terms of
lower latency over the fiber optics options.
    There is limited bandwidth available on the wireless network to the
Markham, Canada Third Party Data Center. Accordingly, the Exchange
believes that it is reasonable not to transport information for all of
the symbols included in the NYSE BBO and Trades and NYSE Arca BBO and
Trades data feeds to Markham, but rather to transport a subset of that
data. Limiting the feeds to the data regarding securities for which IDS
believes there is demand allows customers in Canada to receive the
relevant Selected Market Data over a wireless network. The customer
then determines those symbols for which it will receive data.
    Only market participants that voluntarily select to receive
Wireless Market Data Connections are charged for them, and those
services are available to all market participants with a presence in
the relevant Third Party Data Center. Furthermore, the Exchange
believes that the services and fees proposed herein are reasonable
because, in addition to the services being completely voluntary, they
are available to all market participants on an equal basis (i.e., the
same products and services are available to all market participants).
All market participants that voluntarily select a Wireless Market Data
Connection would be charged the same amount for the same service and
would have their first month's MRC for the Wireless Market Data
Connection waived.
    Overall, the Exchange believes that the proposed change is
reasonable because the Wireless Market Data Connections described
herein are offered as a convenience to market participants, but
offering them requires the provision, maintenance and operation of the
Mahwah data center, wireless networks and access centers in the Third
Party Data Centers, including the installation and monitoring, support
and maintenance of the services.
    The Exchange believes that the proposed waiver of the first month's
MRC is reasonable as it would allow market participants to test a
Wireless Market Data Connection for a month before incurring any
monthly recurring fees and may act as an incentive to market
participants to connect to a Wireless Market Data Connection.
The Proposed Change Is an Equitable Allocation of Fees and Credits
    The Exchange believes its proposal equitably allocates its fees
among its market participants.
    The proposed change would not apply differently to distinct types
or sizes of market participants. Rather, it would apply to all market
participants equally. As is currently the case, the purchase of any
connectivity service, including Wireless Market Data Connections, would
be completely voluntary.
    The Exchange believes that it is equitable to not to transport
information for all of the symbols included in the NYSE BBO and Trades
and NYSE Arca BBO and Trades data feeds to Markham, but rather to
transport a subset of that data. There is limited bandwidth available
on the wireless network to the Markham, Canada Third Party Data Center.
Limiting the feeds to the data regarding securities for which IDS
believes there is demand allows customers in Canada to receive the
relevant Selected Market Data over a wireless network. The customer
then determines those symbols for which it will receive data.
    Without this proposed rule change, market participants with a
presence in the Third Party Data Centers would have fewer options for
connectivity to Selected Market Data. With it, market participants have
more choices with respect to the form and price of connectivity to
Selected Market Data they use, allowing a market participant that opts
for a Wireless Market Data Connection to select the specific Selected
Market Data feed that it wants to receive in accordance with what best
suits its needs, thereby helping it tailor its operations to the
requirements of its business operations.
The Proposed Change Is Not Unfairly Discriminatory
    The Exchange believes its proposal is not unfairly discriminatory.
    The proposed change would not apply differently to distinct types
or sizes of market participants. Rather, it would apply to all market
participants equally. As is currently the case, the purchase of any
connectivity service, including Wireless Market Data Connections, would
be completely voluntary.
    A market participant in the Carteret or Secaucus Third Party Data
Center may purchase a wireless connection to the NYSE and NYSE Arca
Integrated Feed data feeds from at least two other providers of
wireless connectivity. A market participant in any of the Third Party
Data Centers or the Mahwah data center also may create a proprietary
wireless market data connection, connect through another market
participant, or utilize fiber connections offered by the Exchange, ICE
Affiliates, and other service providers and third party
telecommunications providers.
    Without this proposed rule change, market participants with a
presence in the Third Party Data Centers would have fewer options for
connectivity to Selected Market Data. With it, market participants have
more choices with respect to the form and price of connectivity to
Selected Market Data they use, allowing a market participant that opts
for a Wireless Market Data Connection to select the specific Selected
Market Data feed that it wants to receive in accordance with what best
suits its needs, thereby helping it tailor its operations to the
requirements of its business operations.
    The Wireless Market Data Connections provide customers in the
Secaucus and Carteret access centers with one means of connectivity to
Selected Market Data, but based on the information available to it, the
Exchange believes that a market participant in the Carteret or Secaucus
Third Party Data Center may purchase a wireless connection to the NYSE
and NYSE Arca Integrated Feed data feeds from at least two other
providers of wireless connectivity. The Exchange believes that the
wireless connections offered by

non-ICE entities provide connectivity at the same or similar speed as
the Wireless Market Data Connections, and at the same or similar cost.
The Exchange believes the Wireless Market Data Connections between the
Mahwah data center and the Markham Third Party Data Center are the
first public, commercially available wireless connections for Selected
Market Data between the two points, creating a new connectivity option
for customers in Markham.
    For these reasons, the Exchange believes that the proposal is
consistent with the Act.

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

    The Exchange believes that the only burden on competition of the
proposed change is on IDS and other commercial connectivity providers.
Solely because IDS is wholly owned by the same parent company as the
Exchange, IDS will be at a competitive disadvantage to its commercial
competitors, and its commercial competitors, without a filing
requirement, will be at a relative competitive advantage to IDS.
    By permitting IDS to continue to offer the Wireless Market Data
Connectivity, approval of the proposed changes would contribute to
competition by allowing IDS to compete with other connectivity
providers, and thus provides market participants another connectivity
option. For this reason, the proposed rule changes will not impose any
burden on competition that is not necessary or appropriate in
furtherance of the purposes of Section 6(b)(8) of the Act.\35\
---------------------------------------------------------------------------

    \35\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    Based on the information available to it, the Exchange believes
that a market participant in the Carteret or Secaucus Third Party Data
Center may purchase a wireless connection to the NYSE and NYSE Arca
Integrated Feed data feeds from at least two other providers of
wireless connectivity. The Exchange believes that the wireless
connections offered by non-ICE entities provide connectivity at the
same or similar speed as the Wireless Market Data Connections, and at
the same or similar cost. The Exchange believes the Wireless Market
Data Connections between the Mahwah data center and the Markham Third
Party Data Center are the first public, commercially available wireless
connections for Selected Market Data between the two points, creating a
new connectivity option for customers in Markham. The Exchange does not
control the Third Party Data Centers and could not preclude other
parties from creating new wireless or fiber connections to Selected
Market Data in any of the Third Party Data Centers.
    The Wireless Market Data Connections provide customers in the
Secaucus and Carteret Third Party Data Centers with one means of
connectivity to Selected Market Data, but substitute products are
available, as witnessed by the existing wireless connections offered by
non-ICE entities. A market participant in the Carteret or Secaucus
Third Party Data Center may purchase a wireless connection to the NYSE
and NYSE Arca Integrated Feed data feeds from at least two other
providers of wireless connectivity. A market participant in any of the
Third Party Data Centers or the Mahwah data center may also create a
proprietary wireless market data connection, connect through another
market participant, or utilize fiber connections offered by the
Exchange, ICE Affiliates, and other service providers and third party
telecommunications providers.
    The Exchange notes that the proposed Wireless Market Data
Connections compete not just with other wireless connections to
Selected Market Data, but also with fiber network connections, which
may be more attractive to some market participants as they are more
reliable and less susceptible to weather conditions. Market
participants' considerations in determining what connectivity to
purchase may include latency; the amount of network uptime; the
equipment that the network uses; the cost of the connection; and the
applicable contractual provisions. A market participant in the Carteret
or Secaucus Third Party Data Center may purchase a wireless connection
to the NYSE and NYSE Arca Integrated Feed data feeds from at least two
other providers of wireless connectivity. A market participant also may
create a proprietary wireless market data connection, connect through
another market participant, or utilize fiber connections offered by the
Exchange, ICE Affiliates, and other service providers and third party
telecommunications providers.
    The proposed Wireless Market Data Connections traverse through a
series of towers equipped with wireless equipment, including, in the
case of the Carteret and Secaucus Wireless Market Data Connections, a
pole on the grounds of the Mahwah data center. With the exception of
the non-ICE entity that owns the wireless network used for the Wireless
Connections to Secaucus and Carteret,\36\ third parties do not have
access to such pole, as the IDS wireless network has exclusive rights
to operate wireless equipment on the Mahwah data center pole. IDS does
not sell rights to third parties to operate wireless equipment on the
pole, due to space limitations, security concerns, and the interference
that would arise between equipment placed too closely together.
---------------------------------------------------------------------------

    \36\ See note 24, supra.
---------------------------------------------------------------------------

    However, access to such pole is not required for other parties to
establish wireless networks that can compete with the Wireless Market
Data Connections, as witnessed by the existing wireless connections
offered by non-ICE entities. Proximity to a data center is not the only
determinant of a wireless network's latency. Rather, the latency of a
wireless network depends on several factors. Variables include the
wireless equipment utilized; the route of, and number of towers or
buildings in, the network; and the fiber equipment used at either end
of the connection. Moreover, latency is not the only consideration that
a customer may have in selecting a wireless network to connect to
Selected Market Data. Other considerations may include the amount of
network uptime; the equipment that the network uses; the cost of the
connection; and the applicable contractual provisions. Indeed, fiber
network connections may be more attractive to some market participants
as they are more reliable and less susceptible to weather conditions.
    The proposed change does not affect competition among national
securities exchanges or among members of the Exchange, but rather
between IDS and its commercial competitors.
    For the reasons described above, the Exchange believes that the
proposed rule changes reflect this competitive environment.

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

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

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

    Within 45 days of the date of publication of this notice in the
Federal Register or up to 90 days (i) as the Commission may designate
if it finds such longer period to be appropriate and publishes its
reasons for so finding or (ii) as to which the self-regulatory
organization consents, the Commission will:
    (A) By order approve or disapprove the proposed rule change, or

    (B) institute proceedings to determine whether the proposed rule
change should be disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NYSECHX-2020-05 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-NYSECHX-2020-05. 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 website (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 website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NYSECHX-2020-05, and should be submitted
on or before March 17, 2020.

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

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

Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2020-03641 Filed 2-24-20; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register: February 5, 2009 (Volume 74, Number 23)]
[Notices]
[Page 6209-6211]
[DOCID:fr05fe09-74]

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

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket ID. FMCSA-2008-0340]

Qualification of Drivers; Exemption Applications; Vision

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition.

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

SUMMARY: FMCSA announces its decision to exempt 24 individuals from the
vision requirement in the Federal Motor Carrier Safety Regulations
(FMCSRs). The exemptions will enable these individuals to operate
commercial motor vehicles (CMVs) in interstate commerce without meeting
the prescribed vision standard. The Agency has concluded that granting
these exemptions will provide a level of safety that is equivalent to,
or greater than, the level of safety maintained without the exemptions
for these CMV drivers.

DATES: The exemptions are effective February 5, 2009. The exemptions
expire on February 7, 2011.

FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Director, Medical
Programs,<PHONE_NUMBER><EMAIL_ADDRESS>FMCSA, Department of
Transportation, 1200 New Jersey Avenue, SE., Room W64-224, Washington,
DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m. Monday through
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    You may see all the comments online through the Federal Document
Management System (FDMS) at http://www.regulations.gov.
    Docket: For access to the docket to read background documents or
comments, go to http://www.regulations.gov at any time or Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The FDMS is available 24 hours each day, 365
days each year. If you want acknowledgment that we received your
comments, please include a self-addressed, stamped envelope or postcard
or print the acknowledgement page that appears after submitting
comments on-line.
    Privacy Act: Anyone may search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, etc.).
You may review the DOT's complete Privacy Act Statement in the Federal
Register published on April 11, 2000 (65 FR 19476). This information is
also available at http://Docketsinfo.dot.gov.

Background

    On December 12, 2008, FMCSA published a notice of receipt of
exemption applications from certain individuals, and requested comments
from the public (73 FR 75803). That notice listed 24 applicants' case
histories. The 24 individuals applied for exemptions from the vision
requirement in 49 CFR 391.41(b)(10), for drivers who operate CMVs in
interstate commerce.
    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption
for a 2-year period if it finds ``such exemption would likely achieve a
level of safety that is equivalent to, or greater than, the level that
would be achieved absent such exemption.'' The statute also allows the
Agency to renew exemptions at the end of the 2-year period.
Accordingly, FMCSA has evaluated the 24 applications on their merits
and made a determination to grant exemptions to all of them. The Agency
would like to publish two corrections. Mr. Bryant M. Adam's profile was
published with two convictions for moving violations in a CMV for
failure to obey a traffic signal when he has no convictions on his
driving record. Mr. Timothy L. Kelly's name was incorrectly spelled in
his profile. The comment period closed on January 12, 2009.

Vision and Driving Experience of the Applicants

    The vision requirement in the FMCSRs provides:
    A person is physically qualified to drive a commercial motor
vehicle if that person has distant visual acuity of at least 20/40
(Snellen) in each eye without corrective lenses or visual acuity
separately corrected to 20/40 (Snellen) or better with corrective
lenses, distant binocular acuity of a least 20/40 (Snellen) in both
eyes with or without corrective lenses, field of vision of at least
70[deg] in the horizontal meridian in each eye, and the ability to
recognize the colors of traffic signals and devices showing standard
red, green, and amber (49 CFR 391.41(b)(10)).
    FMCSA recognizes that some drivers do not meet the vision standard,
but have adapted their driving to accommodate their vision limitation
and demonstrated their ability to drive safely.
    The 24 exemption applicants listed in this notice are in this
category. They are unable to meet the vision standard in one eye for
various reasons, including amblyopia, retinal detachment, prosthesis,
optic nerve hypoplasia, macular scar, central scotoma, retinal vein
occlusion, retinal scar, ruptured globe and loss of vision due to
trauma. In most cases, their eye conditions were not recently
developed. All but 14 of the applicants were either born with their
vision impairments or have had them since childhood. The 14 individuals
who sustained their vision conditions as adults have had them for
periods ranging from 4 to 42 years.
    Although each applicant has one eye which does not meet the vision
standard in 49 CFR 391.41(b)(10), each has at least 20/40 corrected
vision in the other eye, and in a doctor's opinion, has sufficient
vision to perform all the tasks necessary to operate a CMV. Doctors'
opinions are supported by the applicants' possession of valid
commercial driver's licenses (CDLs) or non-CDLs to operate CMVs. Before
issuing CDLs, States subject drivers to knowledge and skills tests
designed to evaluate their qualifications to operate a CMV.
    All these applicants satisfied the testing standards for their
State of residence. By meeting State licensing requirements, the
applicants demonstrated their ability to operate a commercial vehicle,
with their limited vision, to the satisfaction of the State.
    While possessing a valid CDL or non-CDL, these 24 drivers have been
authorized to drive a CMV in intrastate commerce, even though their
vision disqualified them from driving in interstate commerce. They have
driven CMVs with their limited vision for careers ranging from 4 to 64
years. In the past 3 years, three of the drivers had convictions for
traffic violations and one of the drivers was involved in crashes.
    The qualifications, experience, and medical condition of each
applicant were stated and discussed in detail in the December 12, 2008
notice (73 FR 75803).

Basis for Exemption Determination

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption
from the vision standard in 49 CFR 391.41(b)(10) if the exemption is
likely

to achieve an equivalent or greater level of safety than would be
achieved without the exemption. Without the exemption, applicants will
continue to be restricted to intrastate driving. With the exemption,
applicants can drive in interstate commerce. Thus, our analysis focuses
on whether an equal or greater level of safety is likely to be achieved
by permitting each of these drivers to drive in interstate commerce as
opposed to restricting him or her to driving in intrastate commerce.
    To evaluate the effect of these exemptions on safety, FMCSA
considered not only the medical reports about the applicants' vision,
but also their driving records and experience with the vision
deficiency.
    To qualify for an exemption from the vision standard, FMCSA
requires a person to present verifiable evidence that he/she has driven
a commercial vehicle safely with the vision deficiency for the past 3
years. Recent driving performance is especially important in evaluating
future safety, according to several research studies designed to
correlate past and future driving performance. Results of these studies
support the principle that the best predictor of future performance by
a driver is his/her past record of crashes and traffic violations.
Copies of the studies may be found at docket number FMCSA-1998-3637.
    We believe we can properly apply the principle to monocular
drivers, because data from the Federal Highway Administration's (FHWA)
former waiver study program clearly demonstrate the driving performance
of experienced monocular drivers in the program is better than that of
all CMV drivers collectively (See 61 FR 13338, 13345, March 26, 1996).
The fact that experienced monocular drivers demonstrated safe driving
records in the waiver program supports a conclusion that other
monocular drivers, meeting the same qualifying conditions as those
required by the waiver program, are also likely to have adapted to
their vision deficiency and will continue to operate safely.
    The first major research correlating past and future performance
was done in England by Greenwood and Yule in 1920. Subsequent studies,
building on that model, concluded that crash rates for the same
individual exposed to certain risks for two different time periods vary
only slightly (See Bates and Neyman, University of California
Publications in Statistics, April 1952). Other studies demonstrated
theories of predicting crash proneness from crash history coupled with
other factors. These factors--such as age, sex, geographic location,
mileage driven and conviction history--are used every day by insurance
companies and motor vehicle bureaus to predict the probability of an
individual experiencing future crashes (See Weber, Donald C.,
``Accident Rate Potential: An Application of Multiple Regression
Analysis of a Poisson Process,'' Journal of American Statistical
Association, June 1971). A 1964 California Driver Record Study prepared
by the California Department of Motor Vehicles concluded that the best
overall crash predictor for both concurrent and nonconcurrent events is
the number of single convictions. This study used 3 consecutive years
of data, comparing the experiences of drivers in the first 2 years with
their experiences in the final year.
    Applying principles from these studies to the past 3-year record of
the 24 applicants, one of the applicants had a traffic violation for
failure to obey a traffic sign, one of the applicants had two traffic
violations for failure to obey traffic signals, one of the applicants
had a traffic violation for improperly changing lanes and one of the
applicants was involved in crashes. The applicants achieved this record
of safety while driving with their vision impairment, demonstrating the
likelihood that they have adapted their driving skills to accommodate
their condition. As the applicants' ample driving histories with their
vision deficiencies are good predictors of future performance, FMCSA
concludes their ability to drive safely can be projected into the
future.
    We believe that the applicants' intrastate driving experience and
history provide an adequate basis for predicting their ability to drive
safely in interstate commerce. Intrastate driving, like interstate
operations, involves substantial driving on highways on the interstate
system and on other roads built to interstate standards. Moreover,
driving in congested urban areas exposes the driver to more pedestrian
and vehicular traffic than exists on interstate highways. Faster
reaction to traffic and traffic signals is generally required because
distances between them are more compact. These conditions tax visual
capacity and driver response just as intensely as interstate driving
conditions. The veteran drivers in this proceeding have operated CMVs
safely under those conditions for at least 3 years, most for much
longer. Their experience and driving records lead us to believe that
each applicant is capable of operating in interstate commerce as safely
as he/she has been performing in intrastate commerce. Consequently,
FMCSA finds that exempting these applicants from the vision standard in
49 CFR 391.41(b)(10) is likely to achieve a level of safety equal to
that existing without the exemption. For this reason, the Agency is
granting the exemptions for the 2-year period allowed by 49 U.S.C.
31136(e) and 31315 to the 24 applicants listed in the notice of
December 12, 2008 (73 FR 75603).
    We recognize that the vision of an applicant may change and affect
his/her ability to operate a CMV as safely as in the past. As a
condition of the exemption, therefore, FMCSA will impose requirements
on the 24 individuals consistent with the grandfathering provisions
applied to drivers who participated in the Agency's vision waiver
program.
    Those requirements are found at 49 CFR 391.64(b) and include the
following: (1) That each individual be physically examined every year
(a) by an ophthalmologist or optometrist who attests that the vision in
the better eye continues to meet the standard in 49 CFR 391.41(b)(10),
and (b) by a medical examiner who attests that the individual is
otherwise physically qualified under 49 CFR 391.41; (2) that each
individual provide a copy of the ophthalmologist's or optometrist's
report to the medical examiner at the time of the annual medical
examination; and (3) that each individual provide a copy of the annual
medical certification to the employer for retention in the driver's
qualification file, or keep a copy in his/her driver's qualification
file if he/she is self-employed. The driver must also have a copy of
the certification when driving, for presentation to a duly authorized
Federal, State, or local enforcement official.

Discussion of Comments

    FMCSA received one comment in this proceeding. The comment was
considered and discussed below.
    The Pennsylvania Department of Transportation expressed that it had
reviewed the driving records for Henry Lloyd Decker, Brian M. Madaya
and Harry J. McSuley, Jr. and was in favor of granting the Federal
vision exemptions to these applicants.

Conclusion

    Based upon its evaluation of the 24 exemption applications, FMCSA
exempts, Bryant M. Adams, Ricky J. Childress, Thomas A. Crowell, Henry
L. Decker, Thomas E. Dewitt, Jr., David L. Dykman, Milan D. Frasier,
Wilfred J. Gagnon, Grady O. Gilliland, Harold J. Haier, Crayton Jones,
Jr., Timothy L. Kelly, Lewis A. Kielhack, David Lancaster, Brian M.
Madaya, Joe A.

McIlroy, Harry J. McSuley, Jr., Robert S. Metcalf, Elmer R. Miller,
Richard L. Moreland, Stanley J. Morris, Barbara C. Pennington, Ronald
M. Scott and Jeremichael Steele, from the vision requirement in 49 CFR
391.41(b)(10), subject to the requirements cited above (49 CFR
391.64(b)).
    In accordance with 49 U.S.C. 31136(e) and 31315, each exemption
will be valid for 2 years unless revoked earlier by FMCSA. The
exemption will be revoked if: (1) The person fails to comply with the
terms and conditions of the exemption; (2) the exemption has resulted
in a lower level of safety than was maintained before it was granted;
or (3) continuation of the exemption would not be consistent with the
goals and objectives of 49 U.S.C. 31136 and 31315.
    If the exemption is still effective at the end of the 2-year
period, the person may apply to FMCSA for a renewal under procedures in
effect at that time.

    Issued on: January 29, 2009.
Larry W. Minor,
Associate Administrator for Policy and Program Development.
[FR Doc. E9-2438 Filed 2-4-09; 8:45 am]

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[Federal Register Volume 79, Number 66 (Monday, April 7, 2014)]
[Notices]
[Pages 19077-19079]
[FR Doc No: 2014-07718]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2013-0263; FRL-9909-15-OAR]

Protection of Stratospheric Ozone: Notice of Data Availability
Regarding Aggregate HCFC-22 Inventory Data From 2008-2013

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Availability.

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SUMMARY: Today's notice announces the availability of two additional
documents related to Protection of Stratospheric Ozone: Adjustments to
the Allowance System for Controlling HCFC Production, Import and Export
(2015-2019). The first document shows the aggregated results of Clean
Air Act section 114 requests for information on the amount of HCFC-22
inventory held by nine entities between 2008 and 2013. The second is an
updated draft of the 2013 Servicing Tail Report, which revises
statements regarding alternatives to HCFC-123 for fire suppression and
modeled need for virgin HCFC-123 for this purpose.

DATES: Comments on this notice of data availability must be received on
or before April 22, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2013-0263, by one of the following methods:
     www.regulations.gov: Follow the online instructions for
submitting comments.
     Email<EMAIL_ADDRESS>     Mail: Docket EPA-HQ-OAR-2013-0263, Air and
Radiation Docket and Information Center, United States Environmental
Protection Agency, Mail code: 6102T, 1200 Pennsylvania Avenue NW.,
Washington, DC 20460.
     Hand Delivery: Docket EPA-HQ-OAR-2013-0263 Air
and Radiation Docket at EPA West, 1301 Constitution Avenue NW., Room
3340, Mail Code 6102T, Washington, DC 20004. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2013-0263. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. If
you want to submit confidential comments, please send them to the
individual listed in the FOR FURTHER INFORMATION CONTACT section. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured

and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment. Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses. For additional information about EPA's public docket, visit
the EPA Docket Center homepage at www.epa.gov/epahome/dockets.htm.

FOR FURTHER INFORMATION CONTACT: Elizabeth Whiteley by telephone at
(202) 343-9310 or by email at<EMAIL_ADDRESS>or by mail at
United States Environmental Protection Agency, Stratospheric Protection
Division (6205J), 1200 Pennsylvania Ave. NW., Washington DC 20460. You
may also visit the Ozone Protection Web site of EPA's Stratospheric
Protection Division at www.epa.gov/ozone/strathome.html for further
information about EPA's Stratospheric Ozone Protection regulations, the
science of ozone layer depletion, and related topics.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    This notice announces the availability of data relevant to the
proposed rule titled, Protection of Stratospheric Ozone: Adjustments to
the Allowance System for Controlling HCFC Production, Import and
Export, which published in the Federal Register on December 24, 2013,
and covers the years 2015-2019. When final, that rule may affect the
following categories, thus this notice of availability may be of
interest to:
     Industrial Gas Manufacturing entities (NAICS code 325120),
including fluorinated hydrocarbon gases manufacturers and reclaimers;
     Other Chemical and Allied Products Merchant Wholesalers
(NAICS code 422690), including chemical gases and compressed gases
merchant wholesalers;
     Air-Conditioning and Warm Air Heating Equipment and
Commercial and Industrial Refrigeration Equipment Manufacturing
entities (NAICS code 333415), including air-conditioning equipment and
commercial and industrial refrigeration equipment manufacturers;
     Air-Conditioning Equipment and Supplies Merchant
Wholesalers (NAICS code 423730), including air-conditioning (condensing
unit, compressors) merchant wholesalers;
     Electrical and Electronic Appliance, Television, and Radio
Set Merchant Wholesalers (NAICS code 423620), including air-
conditioning (room units) merchant wholesalers;
     Plumbing, Heating, and Air-Conditioning Contractors (NAICS
code 238220), including central air-conditioning system, commercial
refrigeration installation and HVAC contractors; and
     Refrigerant reclaimers, manufacturers of recovery/
recycling equipment, and refrigerant recovery/recycling equipment
testing organizations.

This list is not intended to be exhaustive, but rather provides a guide
for readers regarding entities likely to be interested in this notice.

B. What should I consider as I prepare my comments for EPA?

1. Confidential Business Information (CBI)
    Do not submit this information to EPA through www.regulations.gov
or email. Clearly mark the part or all of the information that you
claim to be CBI. For CBI information in a disk or CD ROM that you mail
to EPA, mark the outside of the disk or CD ROM as CBI and then identify
electronically within the disk or CD ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR Part
2.
2. Tips for Preparing Your Comments
    When submitting comments, remember to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
     Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
     Describe any assumptions and provide any technical
information and/or data that you used.
     If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
     Provide specific examples to illustrate your concerns, and
suggest alternatives.
     Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
     Make sure to submit your comments by the comment period
deadline identified.

II. What data are available?

    EPA is announcing the availability of two documents in docket EPA-
HQ-OAR-2013-0263, which is the docket for the rulemaking titled,
Protection of Stratospheric Ozone: Adjustments to the Allowance System
for Controlling HCFC Production, Import and Export (2015-2019). EPA
intends to consider comments on this data as it develops the rule
finalizing the December 24, 2013 proposal (78 FR 78072).
    The first of those documents is 2008-2013 HCFC-22 Aggregate
Inventory Data. In August 2013, under the authority of Clean Air Act
section 114, the Environmental Protection Agency (EPA) sent letters to
nine major entities in the HCFC-22 market, including producers,
importers, distributors and reclaimers of HCFC-22. The agency asked for
each company's HCFC-22 inventory as of December 31 in the years 2008
through 2012. At least one respondent to EPA's section 114 request
claimed the aggregate calendar-year HCFC-22 inventory data from all
nine entities as confidential business information; therefore, EPA was
obligated to follow its Confidential Business Information regulations
at 40 CFR Part 2 Subpart B with respect to the aggregate data and could
not release those data at the time of the agency's proposed rule for
the allocation of 2015-2019 HCFC allowances (December 24, 2013, 78 FR
78072). On February 18, 2014, EPA issued a final determination that the
aggregate inventory data is not entitled to confidential treatment. EPA
sent a second letter under the authority of section 114 of the Clean
Air Act to the same nine entities on February 27, 2014, requesting each
company's HCFC-22 inventory as of December 31, 2013. No company claimed
the aggregate inventory data for 2013 as confidential business
information.
    EPA posted the 2008-2012 aggregate inventory data on the agency's
Web site at http://www.epa.gov/ozone/title6/phaseout/classtwo.html and
notified stakeholders via email on March 10, 2014. EPA posted the 2013
aggregate inventory data on the agency's Web site

and notified stakeholders via email on March 27, 2014. EPA also added
these two sets of data to the docket on March 14, 2014 and with this
notice, respectively. Given that EPA has already made these data
available through other means, including direct notice to stakeholders,
EPA believes that 15 days is an adequate period for public comment on
this notice.
    In preparing its proposed rule, EPA considered the annual trend of
HCFC-22 inventory amounts, and the existing inventory at the end of
2012. Existing HCFC-22 inventory can be used to meet a portion of
servicing demand, thus enabling the agency to issue fewer HCFC-22
consumption allowances and prevent additional emissions of ozone-
depleting HCFC-22. As noted in the proposed rule, the inventory data
collected through EPA's August 2013 letters indicated that HCFC-22
inventory was higher than the agency's previous estimate of 22,700 to
45,400 MT. EPA also noted that several stakeholders expected inventory
to rise in 2013 and 2014. While the nine entities do not hold the
complete inventory of HCFC-22, discussions with stakeholders both
before and after the rule was proposed indicate that the aggregate
inventory from these nine entities likely constitutes a significant
majority of the HCFC-22 in inventory on the specified dates.
    The agency is also announcing revisions to the 2013 Servicing Tail
Report, also available in the docket. These changes revise statements
regarding alternatives to HCFC-123 for fire suppression and modeled
need for virgin HCFC-123 for this purpose.

    Dated: March 31, 2014.
Sarah Dunham,
Director, Office of Atmospheric Programs.
[FR Doc. 2014-07718 Filed 4-4-14; 8:45 am]
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