[Federal Register Volume 75, Number 78 (Friday, April 23, 2010)]
[Proposed Rules]
[Pages 21194-21197]
[FR Doc No: 2010-9499]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 100

[Docket No. USCG-2010-0279]
RIN 1625-AA08

Special Local Regulation; Harrison Township Grand Prix, Lake St.
Clair; Harrison Township, MI

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes establishing a temporary special
local regulation in the Captain of the Port Detroit Zone on Lake St.
Clair, Harrison Township, Michigan. This special local regulation is
intended to restrict vessels from portions of Lake St. Clair during the
Harrison Township Grand Prix. This special local regulation is
necessary to protect spectators and vessels from the hazards associated
with powerboat races.

DATES: Comments and related material must be received by the Coast
Guard on or before May 24, 2010.

ADDRESSES: You may submit comments identified by docket number USCG-
2010-0279 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax:<PHONE_NUMBER>.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is<PHONE_NUMBER>.
    To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section below for instructions on
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed
rule, call or e-mail CDR Joseph Snowden, Prevention Department, Sector
Detroit, Coast Guard; telephone<PHONE_NUMBER>, e-mail
<EMAIL_ADDRESS>If you have questions on viewing or
submitting material to the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting
comments and related materials. All comments received will be posted
without change to http://www.regulations.gov and will include any
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this
rulemaking (USCG-2010-0279), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online (via http://www.regulations.gov) or by fax, mail, or hand
delivery, but please use only one of these means. If you submit a
comment online via http://www.regulations.gov, it will be considered
received by the Coast Guard when you successfully transmit the comment.
If you fax, hand deliver, or mail your comment, it will be considered
as having been received by the Coast Guard when it is received at the
Docket Management Facility. We recommend that you include your name and
a mailing address, an e-mail address, or a telephone number in the body
of your document so that we can contact you if we have questions
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov,
click on the ``submit a comment'' box, which will then become
highlighted in blue. In the ``Document Type'' drop down menu select
``Proposed Rule'' and insert ``USCG-2010-0279'' in the ``Keyword'' box.
Click ``Search'' then click on the balloon shape in the ``Actions''
column. If you submit your comments by mail or hand delivery, submit
them in an unbound format, no larger than 8\1/2\ by 11 inches, suitable
for copying and electronic filing. If you submit comments by mail and
would like to know that they reached the Facility, please enclose a
stamped, self-addressed postcard or envelope. We will consider all
comments and material received during the comment period and may change
the rule based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov,
click on the ``read comments'' box, which will then become highlighted
in blue. In the ``Keyword'' box insert ``USCG-2010-0279'' and click
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column.
You may also visit the Docket Management Facility in Room W12-140 on
the ground floor of the Department of Transportation West Building,
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. We have an
agreement with the Department of Transportation to use the Docket
Management Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any
of our dockets by the name of the individual submitting the comment (or
signing the comment, if submitted on behalf of an association,
business, labor union, etc.). You may review a Privacy Act notice
regarding our public dockets in the January 17, 2008 issue of the
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a
request for one using one of the four methods specified under
ADDRESSES. Please explain why you believe a public meeting would be
beneficial. If we determine that one would aid this rulemaking, we will
hold one at a time and place announced by a later notice in the Federal
Register.

Background and Purpose

    This temporary special local regulation is necessary to ensure the
safety of vessels and spectators from hazards associated with a
powerboat race. The Captain of the Port Detroit has determined
powerboat races in close proximity to watercraft and infrastructure
pose significant risk to public safety and property. The likely
combination of large numbers of recreation vessels, powerboats
traveling at high speeds, and large numbers of spectators in close
proximity to the water could easily result in serious injuries or
fatalities. Establishing a special local regulation around the location
of the race course will help ensure the safety of persons and property
at these events and help minimize the associated risks.

Discussion of Proposed Rule

    This proposed temporary special local regulation is necessary to
ensure the safety of spectators and vessels during the setup, course
familiarization, testing and race in conjunction with the Harrison
Township Grand Prix. The powerboat races will occur between 10 a.m. and
4 p.m. on July 17 and 18, 2010. The special local regulation will be
enforced daily from 10 a.m. to 4 p.m. on July 17-18, 2010.
    The special local regulation will encompass all waters of Lake St.
Clair, near Harrison Township, MI, bound by a line extending from a
starting point in Lake St. Clair located at position 42[deg]32' 44'' N,
082[deg]50'42'' W; traveling southeast to position 42[deg]32'10'' N,
082[deg]47'50'' W; northeast to position 42[deg]34'07'' N,
082[deg]47'30'' W; west to position 42[deg]34'05'' N, 082[deg]49'35''
W; and southwest to the point of origin at position 42[deg]32' 44'' N,
082[deg]50'42'' W;. This regulated navigation area encompasses the
entire race course located in Lake St. Clair near Metro Beach, Harrison
Township. All geographic coordinates are North American Datum of 1983
[NAD 83].
    All persons and vessels shall comply with the instructions of the
Coast Guard Captain of the Port or the designated on scene patrol
personnel. Entry into, transiting, or anchoring within the special
local regulation area is prohibited unless authorized by the Captain of
the Port Detroit or his designated on scene representative. The Captain
of the Port or his on scene representative may be contacted via VHF
Channel 16.

Regulatory Analyses

    We developed this proposed rule after considering numerous statutes
and executive orders related to rulemaking. Below we summarize our
analyses based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This proposed rule is not a significant regulatory action under
section 3(f) of Executive Order 12866, Regulatory Planning and Review,
and does not require an assessment of potential costs and benefits
under section 6(a)(3) of that Order. The Office of Management and
Budget has not reviewed it under that Order. We expect the economic
impact of this proposed rule to be so minimal that a full Regulatory
Evaluation is unnecessary. This determination is based on the minimal
time that vessels will be restricted from the special regulation area
and the special regulation area is located where the Coast Guard
expects minimal adverse impact to mariners from the special regulation
area's activation.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this proposed rule would have a significant economic
impact on a substantial number of small entities. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed
rule would not have a significant economic impact on a substantial
number of small entities.
    This rule will affect the following entities, some of which might
be small entities: The owners and operators of vessels intending to
transit or anchor in a portion of Lake St. Clair near Harrison
Township, MI, between 10 a.m. on July 17, and 4 p.m. on July 18, 2010.
    This special local regulation area will not have a significant
economic impact on a substantial number of small entities for the
following reasons: This rule will only be enforced for six hours on
each day for two days total. In the event that this temporary special
local regulation affects shipping, commercial vessels may request
permission from the Captain of the Port Detroit to transit through the
special local regulation area. The Coast Guard will give notice to the
public via a Broadcast Notice to Mariners that the regulation is in
effect and when it is being enforced.
    If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it qualifies and how and to what
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
rule would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please contact CDR Joseph Snowden, Prevention
Department, Sector Detroit, Coast Guard; telephone<PHONE_NUMBER>, e-
mail<EMAIL_ADDRESS>The Coast Guard will not retaliate
against small entities that question or complain about this proposed
rule or any policy or action of the Coast Guard.

Collection of Information

    This proposed rule would call for no new collection of information
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this proposed rule
under that Order and have determined that it does not have implications
for federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this proposed rule would not
result in such an expenditure, we do discuss the effects of this rule
elsewhere in this preamble.

Taking of Private Property

    This proposed rule would not cause a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.

Civil Justice Reform

    This proposed rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this proposed rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and would not
create an environmental risk to health or risk to safety that might
disproportionately affect children.

Indian Tribal Governments

    The Coast Guard recognizes the treaty rights of Native American
Tribes. Moreover, the Coast Guard is committed to working with Tribal
Governments to implement local policies and to mitigate tribal
concerns. We have determined that this rule and fishing rights
protection need not be incompatible. We have also determined that this
proposed rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it would not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes. Nevertheless, Indian
Tribes that have questions concerning the provisions of this proposed
rule or options for compliance are encouraged to contact the point of
contact listed under FOR FURTHER INFORMATION CONTACT.

Energy Effects

    We have analyzed this proposed rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
    This proposed rule does not use technical standards. Therefore, we
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed rule under Department of Homeland
Security Management Directive 023-01 and Commandant Instruction
M16475.lD, which guide the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and
have made a preliminary determination that this action is one of a
category of actions which do not individually or cumulatively have a
significant effect on the human environment. This rule involves the
establishment of a special local regulation. Based on our preliminary
determination, there are no factors in this case that would limit the
use of a categorical exclusion under section 2.B.2 of the Instruction.
Therefore, we believe that this rule should be categorically excluded.
Because this event establishes a special local regulation, paragraph
(34)(h) of figure 2-1 of the Instruction applies. Thus, no further
environmental documentation is required. We seek any comments or
information that may lead to the discovery of a significant
environmental impact from this proposed rule.

List of Subjects in 33 CFR Part 100

    Marine safety, Navigation (water), Reporting and recordkeeping
requirements, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes
to amend 33 CFR part 100 as follows:

PART 100--SAFETY OF LIFE ON NAVIGABLE WATERS

    1. The authority citation for part 100 continues to read as
follows:

    Authority:  33 U.S.C. 1233.

    2. Add a new temporary Sec.  100.35T09-0279 as follows:

Sec.  100.35T09-0279  Special Local Regulation; Harrison Township Grand
Prix; Lake St. Clair; Harrison Township, MI.

    (a) Location. The following is a temporary special local regulation
area: All waters of Lake St. Clair, near Harrison Township, MI, bound
by a line extending from a starting point in Lake St. Clair located at
position 42[deg]32'44'' N, 082[deg]50'42'' W; traveling southeast to
position 42[deg]32'10'' N, 082[deg]47'50'' W; northeast to position
42[deg]34'07'' N, 082[deg]47'30'' W; west to position 42[deg]34'05'' N,
082[deg]49'35'' W; and southwest to the point of origin at position
42[deg]32'44'' N, 082[deg]50'42'' W. This regulated navigation area
encompasses the entire race course located in Lake St. Clair near Metro
Beach, Harrison Township. (DATUM: NAD 83).
    (b) Effective Period. This regulation is effective from 10 a.m. on
July 17, 2010, to 4 p.m. on July 18, 2010. This regulation will be
enforced daily from 10 a.m. until 4 p.m. on July 17-18, 2010.
    (c) Regulations.
    (1) In accordance with the general regulations in Sec.  100.35 of
this part, entry into, and transiting or anchoring within this special
local regulation area is prohibited unless authorized by the Captain of
the Port Detroit, or his on-scene representative.
    (2) This special local regulation area is closed to all vessel
traffic, except as may be permitted by the Captain of the Port Detroit
or his on-scene representative.
    (3) The ``on-scene representative'' of the Captain of the Port is
any Coast Guard commissioned, warrant, or petty officer who has been
designated by the

Captain of the Port to act on his behalf. The on-scene representative
of the Captain of the Port will be aboard either a Coast Guard or Coast
Guard Auxiliary vessel.
    (4) Vessel operators desiring to enter or operate within the
special local regulation area shall contact the Captain of the Port
Detroit or his on-scene representative to obtain permission to do so.
The Captain of the Port or his designated on scene representative may
be contacted via VHF Channel 16. Vessel operators given permission to
enter or operate in the special local regulation area must comply with
all directions given to them by the Captain of the Port or his on-scene
representative.

    Dated: April 9, 2010.
E.J. Marohn,
Commander, U.S. Coast Guard, Acting Captain of the Port Detroit.
[FR Doc. 2010-9499 Filed 4-22-10; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register Volume 88, Number 204 (Tuesday, October 24, 2023)]
[Notices]
[Pages 73060-73064]
[FR Doc No: 2023-23400]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98771; File No. SR-NYSEAMER-2023-50]

Self-Regulatory Organizations; NYSE American LLC; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend the
NYSE American Options Proprietary Market Data Fee Schedule

March 18, 2023.
    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 October 16, 2023, NYSE American LLC (``Exchange'') filed with
the Securities and Exchange Commission (``Commission'') the proposed
rule change as described in Items I and II below, which Items have been
prepared by the self-regulatory organization. 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 amend the NYSE American Options
Proprietary Market Data Fee Schedule (``Fee Schedule'') to introduce a
data product to be known as the NYSE Options Open-Close Intra-Day
Volume Summary (``Intra-Day Volume Summary'') that would be available
for purchase by any market participant, i.e., members \4\ and non-
members, on an ad-hoc basis and to adopt fees for such product. The
proposed rule 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.
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    \4\ References to ``member organization'' as used in Exchange
rules include American Trading Permit (``ATP'') Holders, which are
registered brokers or dealers approved to effect transactions on the
Exchange's options marketplace. Under the Exchange's rules, an ATP
Holder has the status as a ``member'' of the Exchange as that term
is defined in Section 3 of the Act. See Rule 900.2NY.
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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 the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to introduce a data product to be known as
the Intra-Day Volume Summary that would be available for purchase by
market participants on an ad-hoc basis and to adopt fees for such
product.\5\
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    \5\ The Exchange previously adopted a subscription-based market
data product known as the NYSE Options Open-Close Volume Summary
that market participants can purchase on a subscription basis. See
Securities Exchange Act Release No. 93803 (December 16, 2021), 86 FR
72647 (December 22, 2021) (SR-NYSEAMER-2021-46). The purpose of this
filing is to introduce a historic monthly report of the NYSE Options
Open-Close Volume Summary that would be available for purchase by
any market participant on an ad-hoc basis.
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    More specifically, the Exchange proposes to offer an ad-hoc
historic monthly Intra-Day Volume Summary market data product that
provides a volume summary of trading activity on the Exchange at the
option level by origin (Customer, Professional Customer, Firm, Broker-
Dealer, and Market Maker \6\), side of the market (buy or sell),
contract volume, and

transaction type (opening or closing). The Customer, Professional
Customer, Firm, Broker-Dealer, and Market Maker volume is further
broken down into trade size buckets (less than 100 contracts, 100-199
contracts, greater than 199 contracts). The ad-hoc historic monthly
Intra-Day Volume Summary is proprietary Exchange trade data and does
not include trade data from any other exchange. It is also a historical
data product and not a real-time data feed. The Exchange proposes to
offer data beginning November 2023 and would contain all series in an
underlying security if it has volume.\7\
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    \6\ The terms Customer, Professional Customer, Firm and Market
Maker are defined in Rule 900.2NY.
    \7\ The specifications for the ad-hoc historic monthly Intra-Day
Volume Summary can be found at https://www.nyse.com/market-data/historical/open-close-volume-summary.
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    The Exchange anticipates a wide variety of market participants to
purchase the ad-hoc historic monthly Intra-Day Volume Summary,
including, but not limited to, individual customers, buy-side
investors, investment banks and academic institutions. For example,
academic institutions may utilize the proposed product to promote
research and studies of the options industry to the benefit of all
market participants. The Exchange believes the proposed product may
also provide helpful trading information regarding investor sentiment
and may be used to create and test trading models and analytical
strategies. The ad-hoc historic monthly Intra-Day Volume Summary is a
completely voluntary product, in that the Exchange is not required by
any rule or regulation to make this data available and that potential
customers may purchase it on an ad-hoc basis only if they voluntarily
choose to do so. The Exchange notes that other exchanges offer a
similar product,\8\ including the Exchange's affiliate, NYSE Arca, Inc.
(``NYSE Arca'').\9\ As such, the ad-hoc historic monthly Intra-Day
Volume Summary is subject to direct competition from similar intra-day
options trading summaries offered by other exchanges. All of these
exchanges offer essentially the same intra-day options trading summary
information for purchase on an ad-hoc basis, and generally differ
solely in the amount of history available for purchase.\10\
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    \8\ See e.g., Securities Exchange Act Release Nos. 89496 (August
6, 2020), 85 FR 48743 (August 12, 2020) (SR-C2-2020-010) (Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change
Relating To Introduce a New Data Product To Be Known as Intraday
Open-Close Data); and 97723 (June 14, 2023), 88 FR 40358 (June 21,
2023) (SR-BOX-2023-16) (Notice of Filing and Immediate Effectiveness
of a Proposed Rule Change To Amend the Fee Schedule for Trading on
the BOX Options Market LLC Facility To Offer Ad-Hoc Historical
Requests for the Intraday Open-Close Data Report and Adopt Fees for
This Data). The ad-hoc historic monthly Intra-Day Volume Summary
report contains the same information that is provided in the monthly
subscription-based market data product known as the NYSE Options
Open-Close Volume Summary. See, note 5, supra.
    \9\ See Securities Exchange Act Release No. 97841 (July 5,
2023), 88 FR 44176 (July 11, 2023) (SR-NYSEArca-2023-46).
    \10\ For example, Nasdaq PHLX LLC offers history for its intra-
day data starting in January 2009 for purchase on an ad-hoc basis
while Intra-Day Volume Summary history is only offered starting in
August 2022. See https://www.nasdaqtrader.com/micro.aspx?id=photo.
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    The Exchange proposes to provide in its Fee Schedule that market
participants may purchase the ad-hoc historic monthly Intra-Day Volume
Summary for a specified month (historical data). The Exchange proposes
to assess a fee of $1,000 per request per month for an ad-hoc request
of historical Intra-Day Volume Summary covering all Exchange-listed
securities. An ad-hoc request can be for any number of months beginning
with November 2023 for which the data is available.\11\ The proposed
fee for ad-hoc requests for the historic monthly Intra-Day Volume
Summary will apply to all market participants. The Exchange notes that
other exchanges provide a similar data product \12\ that may be
purchased on an ad-hoc basis. The proposed fee is comparably priced to
at least one other exchange that sells a market data product similar to
Intra-Day Volume Summary that may be purchased on an ad-hoc basis.\13\
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    \11\ For example, a customer that requests historical Intra-Day
Volume Summary for the months of November 2023 and December 2023,
would be assessed a total of $2,000.
    \12\ See e.g., Cboe LiveVol, LLC Market Data Fees available at
https://www.cboe.com/us/options/membership/fee_schedule/ctwo/. Cboe
C2 Options (``C2'') offers Open-Close Data: Intraday Ad-hoc Request
(historical data) and assesses a fee of $500 per request per month.
Cboe EDGX Exchange, Inc. (``EDGX'') similarly offers Open-Close
Data: Intraday Ad-hoc Request (historical data) and assesses a fee
of $500 per request per month. See https://www.cboe.com/us/options/membership/fee_schedule/edgx/. Nasdaq ISE, LLC (``ISE'') offers
Nasdaq ISE Open/Close Trade Profile Intraday Ad-Hoc Request
(historical data) and assesses a fee of $1,000 per request per
month, $2,000 per request per quarter and $8,000 per request per
year. See Sec. 10, Market Data, at https://listingcenter.nasdaq.com/rulebook/ise/rules/ise-options-7.
    \13\ See ISE fees, note 12, supra.
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    The Exchange intends to offer the historic monthly Intra-Day Volume
Summary on an ad-hoc basis and charge the proposed fees effective
November 1, 2023.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\14\ in general, and furthers the
objectives of Section 6(b)(5) of the Act,\15\ in particular, in that it
is designed 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 to protect investors and the public
interest, and that it is not designed to permit unfair discrimination
among customers, brokers, or dealers. The Exchange also believes that
its proposal to adopt fees for ad-hoc historic monthly Intra-Day Volume
Summary is consistent with Section 6(b) of the Act \16\ in general, and
furthers the objectives of Section 6(b)(4) of the Act \17\ in
particular, in that it is an equitable allocation of dues, fees and
other charges among its members and other recipients of Exchange data.
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    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(5).
    \16\ 15 U.S.C. 78f(b).
    \17\ 15 U.S.C. 78f(b)(4).
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    In adopting Regulation NMS, the Commission granted self-regulatory
organizations (``SROs'') and broker-dealers increased authority and
flexibility to offer new and unique market data to the public. It was
believed that this authority would expand the amount of data available
to users and consumers of such data and also spur innovation and
competition for the provision of market data.
    The Exchange believes that the proposed ad-hoc historic monthly
Intra-Day Volume Summary market data product would further broaden the
availability of U.S. options market data to investors consistent with
the principles of Regulation NMS. The proposed rule change would
benefit investors by providing access to historic data, which as noted
above, may promote better informed trading, as well as research and
studies of the options industry. Particularly, information regarding
opening and closing activity across different options series may
indicate investor sentiment, which can be helpful research and/or
trading information. Customers of the historic data product may be able
to enhance their ability to analyze options trade and volume data, and
create and test trading models and analytical strategies. The Exchange
believes ad-hoc historic monthly Intra-Day Volume Summary would provide
a valuable tool that customers can use to gain comprehensive insight
into the trading activity in a particular series, but also emphasizes
such data is not necessary for trading. Moreover, other exchanges offer
a similar data product.\18\
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    \18\ See, notes 8 and 9, supra.

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    The Exchange operates in a highly competitive market. Indeed, there
are currently 17 registered options exchanges competing for order flow.
Based on publicly-available information, and excluding index-based
options, no single exchange has more than 16% of the market share of
executed volume of multiply-listed equity and ETF options trades.\19\
Therefore, no exchange possesses significant pricing power in the
execution of multiply-listed equity and ETF options order flow. More
specifically, in July 2023, the Exchange had less than 12% market share
of executed volume of multiply-listed equity and ETF options
trades.\20\
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    \19\ The Options Clearing Corporation (``OCC'') publishes
options and futures volume in a variety of formats, including daily
and monthly volume by exchange, available here: https://www.theocc.com/Market-Data/Market-Data-Reports/Volume-and-Open-Interest/Monthly-Weekly-Volume-Statistics.
    \20\ Based on a compilation of OCC data for monthly volume of
equity-based options and monthly volume of equity-based ETF options,
see id., the Exchange's market share in equity-based options
increased slightly from 11.30% for the month of July 2022 to 11.50%
for the month of July 2023.
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    The Commission has repeatedly expressed its preference for
competition over regulatory intervention in determining prices,
products, and services in the securities markets. Specifically, in
Regulation NMS, the Commission highlighted the importance of market
forces in determining prices and SRO revenues, and also recognized that
current regulation of the market system ``has been remarkably
successful in promoting market competition in its broader forms that
are most important to investors and listed companies.'' \21\
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    \21\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005).
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    With respect to market data, the decision of the United States
Court of Appeals for the District of Columbia Circuit in NetCoalition
v. SEC upheld the Commission's reliance on the existence of competitive
market mechanisms to evaluate the reasonableness and fairness of fees
for proprietary market data:

    In fact, the legislative history indicates that the Congress
intended that the market system ``evolve through the interplay of
competitive forces as unnecessary regulatory restrictions are
removed'' and that the SEC wield its regulatory power ``in those
situations where competition may not be sufficient,'' such as in the
creation of a ``consolidated transactional reporting system.'' \22\
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    \22\ NetCoalition v. SEC, 615 F.3d 525, 535 (D.C. Cir. 2010)
(quoting H.R. Rep. No. 94-229 at 92 (1975), as reprinted in 1975
U.S.C.C.A.N. 323).

    The court agreed with the Commission's conclusion that ``Congress
intended that `competitive forces should dictate the services and
practices that constitute the U.S. national market system for trading
equity securities.' '' \23\ More recently, the Commission confirmed
that it applies a ``market-based'' test in its assessment of market
data fees, and that under that test:
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    \23\ Id. at 535.

    the Commission considers whether the exchange was subject to
significant competitive forces in setting the terms of its proposal
for [market data], including the level of any fees. If an exchange
meets this burden, the Commission will find that its fee rule is
consistent with the Act unless there is a substantial countervailing
basis to find that the terms of the rule violate the Act or the
rules thereunder.\24\
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    \24\ See Securities Exchange Act Release No. 34-90217 (October
16, 2020), 85 FR 67392 (October 22, 2020) (SR-NYSENAT-2020-05)
(internal quotation marks omitted), quoting Securities Exchange Act
Release No. 59039 (December 2, 2008), 73 FR 74770, 74781 (December
9, 2008) (ArcaBook Approval Order).

    Making similar historic data products available to market
participants fosters competition in the marketplace, and constrains the
ability of exchanges to charge supra-competitive fees. In the event
that a market participant views one exchange's historic data product as
more or less attractive than the competition they can and do switch
between similar products. The proposed fees are a result of the
competitive environment, as the Exchange seeks to adopt fees to attract
purchasers of the ad-hoc historic monthly Intra-Day Volume Summary data
product.
    The Exchange believes its proposal to provide the ad-hoc historic
monthly Intra-Day Volume Summary is reasonable as the proposed fee is
comparable to the fee charged by at least one other exchange that
provides a similar historic data product.\25\ Indeed, proposing fees
that are excessively higher than established fees for similar historic
data products would simply serve to reduce demand for the Exchange's
historic data product, which as noted, is entirely optional. Like the
ad-hoc historic monthly Intra-Day Volume Summary, other exchanges offer
similar historic data products that each provide insight into trading
on those markets and may likewise aid in assessing investor sentiment.
Although each of these similar historic data products provide only
proprietary trade data and not trade data from other exchanges, it is
possible investors are still able to gauge overall investor sentiment
across different options series based on open and closing interest on
any one exchange. Similarly, market participants may be able to analyze
options trade and volume data, and create and test trading models and
analytical strategies using only the ad-hoc historic monthly Intra-Day
Volume Summary data relating to trading activity on one or more of the
other markets that provide similar historic data products. As such, if
a market participant views another exchange's data as more attractive
than the Exchange's offering, then such market participant can merely
choose not to purchase the Exchange's historic data product and instead
purchase another exchange's historic product, which offer similar data
points, albeit based on that other market's trading activity.
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    \25\ See, note 12, supra.
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    The Exchange also believes the proposed fees are reasonable as they
would support the introduction of a historic market data product that
is designed to aid investors by providing insight into trading on the
Exchange. In turn, this data would assist market participants in
gauging investor sentiment and trading activity, resulting in
potentially better-informed trading decisions. As noted above,
customers may also use such data to create and test trading models and
analytical strategies.
    Selling historic market data, such as the ad-hoc historic monthly
Intra-Day Volume Summary, is also a means by which exchanges compete to
attract business. To the extent that the Exchange is successful in
attracting customers to the Exchange's historic data product, it may
earn trading revenues and further enhance the value of its data
products. If the market deems the proposed fees to be unfair or
inequitable, customers can diminish or discontinue their use of the
historic data and/or avail themselves of similar products offered by
other exchanges.\26\ The Exchange therefore believes that the proposed
fees reflect the competitive environment and would be properly and
equally assessed to all customers. The Exchange also believes the
proposed fees are equitable and not unfairly discriminatory as the fees
would apply equally to all customers who choose to purchase such data.
The proposed fees would not differentiate between customers that
purchase the ad-hoc historic monthly Intra-Day Volume Summary, and are
set at a modest level that would allow any interested market
participant to purchase such data based on their business needs.
Nothing in this proposal treats any category of market participant any
differently from any other category of market participant. The ad-hoc
historic monthly Intra-Day Volume Summary is available to all

market participants, i.e., members and non-members, and all market
participants would receive the same information in the data feed.
---------------------------------------------------------------------------

    \26\ See, notes 8 and 9, supra.
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    As noted above, the Exchange anticipates a wide variety of market
participants to purchase the ad-hoc historic monthly Intra-Day Volume
Summary data product, including but not limited to individual
customers, buy-side investors, investment banks and academic
institutions. As such, the Exchange anticipates that the historic data
product may be used not just for commercial or monetizing purposes, but
also for educational use and research. The Exchange reiterates that the
decision as to whether or not to purchase the ad-hoc historic monthly
Intra-Day Volume Summary is entirely optional for all potential
customers. Indeed, no market participant is required to purchase the
historic data product, and the Exchange is not required to make the
historic data product available to market participants. Rather, the
Exchange is voluntarily making the historic data product available, as
requested by customers, and market participants may choose to receive
(and pay for) this data based on their own business needs. Potential
customers may request the data at any time if they believe it to be
valuable or may decline to purchase such data.
    In sum, the fierce competition for order flow constrains any
exchange from pricing its historic market data at a supra-competitive
price, and constrains the Exchange here in setting its fees for the ad-
hoc historic monthly Intra-Day Volume Summary data product.
    The proposed fees are therefore reasonable because in setting them,
the Exchange is constrained by the availability of numerous substitute
venues offering historic market data products and trading.\27\ Such
substitutes need not be identical, but only substantially similar to
the product at hand. More specifically, in setting fees for the ad-hoc
historic monthly Intra-Day Volume Summary data product, the Exchange is
constrained by the fact that, if its pricing is unattractive to
customers, customers have their pick of an increasing number of
alternative venues to use instead of the Exchange.\28\ Because of the
availability of substitutes, an exchange that overprices its historic
market data products stands a high risk that customers may substitute
another source of market data information for its own. Those
competitive pressures imposed by available alternatives are evident in
the Exchange's proposed pricing. The existence of numerous alternatives
to the Exchange ensures that the Exchange cannot set unreasonable fees
for historic market data without suffering the negative effects of that
decision in the fiercely competitive market in which it operates.
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    \27\ See, notes 8 and 9, supra.
    \28\ See, note 12, supra.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act. The Exchange
also does not believe the proposed fees would cause any unnecessary or
inappropriate burden on intermarket competition as other exchanges are
free to introduce their own comparable historic data product and adopt
fees to better compete with the Exchange's offering. Rather, the
Exchange believes that the proposal will promote competition by
permitting the Exchange to sell a historic data product similar to
those offered by other options exchanges.\29\ The Exchange is offering
the ad-hoc historic monthly Intra-Day Volume Summary in order to keep
pace with changes in the industry and evolving customer needs, and
believes the data product will contribute to robust competition among
national securities exchanges.
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    \29\ See, notes 8 and 9, supra.
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    Furthermore, the Exchange operates in a highly competitive
environment, and its ability to price the ad-hoc historic monthly
Intra-Day Volume Summary is constrained by competition among exchanges
that offer similar historic data products to their customers. As
discussed above, there are currently a number of similar products
available to market participants and investors. A number of U.S.
options exchanges offer a historic market data product that is
substantially similar to the Exchange's offering, which the Exchange
must consider in its pricing discipline in order to compete
effectively. For example, proposing fees that are excessively higher
than established fees for similar historic data products would simply
serve to reduce demand for the Exchange's historic data product, which
as discussed, market participants are under no obligation to utilize or
purchase. In this competitive environment, potential purchasers are
free to choose which, if any, similar historic data product to purchase
to satisfy their need for market information. As a result, the Exchange
believes this proposed rule change permits fair competition among
national securities exchanges.
    The Exchange does not believe the proposed rule change would cause
any unnecessary or inappropriate burden on intramarket competition.
Particularly, the proposed fees would apply uniformly to any customer,
in that the Exchange would not differentiate between customers that
purchase the ad-hoc historic monthly Intra-Day Volume Summary and all
customers would receive the same information in the data feed. The
Exchange believes the proposed fees are set at a modest level that
would allow interested customers to purchase such data based on their
business needs.

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

    Because the foregoing proposed rule change does not: (i)
significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A)(iii) of the Act \30\ and Rule
19b-4(f)(6) thereunder.\31\
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    \30\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \31\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires the Exchange to give the Commission written notice of its
intent to file the proposed rule change, along with a brief
description and text of the proposed rule change, at least five
business days prior to the date of filing of the proposed rule
change, or such shorter time as designated by the Commission. The
Exchange has satisfied this requirement.
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    A proposed rule change filed under Rule 19b-4(f)(6) \32\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\33\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has asked
the Commission to waive the 30-day operative delay so that the proposal
may become operative immediately upon filing. The Commission believes
that waiver of the 30-day operative delay is consistent with the
protection of investors and the public interest because the proposal
does not raise any

new or novel issues.\34\ Accordingly, the Commission hereby waives the
30-day operative delay and designates the proposal operative upon
filing.\35\
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    \32\ 17 CFR 240.19b-4(f)(6).
    \33\ 17 CFR 240.19b-4(f)(6)(iii).
    \34\ See supra, notes 8-10 and 12.
    \35\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.

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 (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
file number SR-NYSEAMER-2023-50 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-NYSEAMER-2023-50. 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 (https://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
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. Do not
include personal identifiable information in submissions; you should
submit only information that you wish to make available publicly. We
may redact in part or withhold entirely from publication submitted
material that is obscene or subject to copyright protection. All
submissions should refer to file number SR-NYSEAMER-2023-50 and should
be submitted on or before November 14, 2023

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\36\
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    \36\ 17 CFR 200.30-3(a)(12), (59).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-23400 Filed 10-23-23; 8:45 am]
BILLING CODE 8011-01-P