[Federal Register: May 17, 2010 (Volume 75, Number 94)]
[Notices]
[Page 27548-27549]
[DOCID:fr17my10-50]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 13718-000]

Quality GearBox, LLC; Notice of Competing Preliminary Permit
Application Accepted for Filing and Soliciting Comments and Motions To
Intervene

May 10, 2010.
    1. On April 28, 2010, Quality GearBox, LLC (Quality GearBox) filed
an application for a preliminary permit, pursuant to section 4(f) of
the Federal Power Act, proposing to study the feasibility of the
Harpersfield Low Head Dam Hydroelectric Project No. 13718, to be
located at the existing Harpersfield Dam, on the Grand River, in
Ashtabula County, Ohio.
    2. The proposed project would consist of: (1) An existing 8.5-foot-
high by 325-foot-long gravity dam; (2) an existing 19-acre impoundment
with a storage capacity of 133 acre feet; (3) an existing filtration
plant to be converted into a powerhouse with three new turbine-
generator units for a total installed capacity of 300 kilowatts; (4) a
new 300-foot-long, 13.2-kilovolt transmission line; and (5) appurtenant
facilities. The proposed project would operate in a run-of-river mode
and would have an estimated average annual generation of 2,000
kilowatt-hours.
    Applicant Contact: Mr. Devin Linehan, Managing Member, Quality
GearBox, LLC, 5834 North River Road, Geneva, OH 44041;<PHONE_NUMBER>.
    FERC Contact: Michael Watts;<PHONE_NUMBER>.
    Competing Application: This application competes with Project No.
13627-000 filed November 6, 2009. Competing applications were due by
close of business on April 30, 2010.
    Deadline for filing comments or motions to intervene: 60 days from
the issuance of this notice. Comments and motions to intervene may be
filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii)
and the instructions on the Commission's Web site under the ``e-
Filing'' link. If unable to be filed electronically, documents may be
paper-filed. To paper-file, an original and eight copies should be
mailed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory
Commission, 888 First Street, NE., Washington, DC 20426. For more
information on how to submit these types of filings please go to the
Commission's Web site located at http://www.ferc.gov/filings-
comments.asp. More information about this project, including a copy of
the

application, can be viewed or printed on the ``eLibrary'' link of the
Commission's Web site at http://www.ferc.gov/docs-filing/elibrary.asp.
Enter the docket number (P-13718) in the docket number field to access
the document. For assistance, call toll-free 1-866-208-3372.

Kimberly D. Bose,
Secretary.
[FR Doc. 2010-11634 Filed 5-14-10; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register: September 20, 2010 (Volume 75, Number 181)]
[Notices]
[Page 57321-57326]
[DOCID:fr20se10-93]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-62908; File No. SR-NASDAQ-2010-111]

Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Establish an Optional Depth Data Enterprise License Fee

September 14, 2010.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on September 7, 2010, The NASDAQ Stock Market LLC (``NASDAQ'' or
the ``Exchange'') filed with the Securities and Exchange Commission
(the ``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\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    NASDAQ proposes to establish an optional Depth Data Enterprise
License Fee for external distribution of depth-of-book data to non-
professional users. The text of the proposed rule change is below.
Proposed new language is in italics; proposed deletions are in
brackets.\3\
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    \3\ Changes are marked to the rule text that appears in the
electronic manual of Nasdaq found at http://
nasdaqomx.cchwallstreet.com.
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* * * * *

7023. NASDAQ TotalView

(a) TotalView Entitlement
    The TotalView entitlement allows a subscriber to see all individual
NASDAQ Market Center participant orders and quotes displayed in the
system as well as the aggregate size of such orders and quotes at each
price level in the execution functionality of the NASDAQ Market Center,
including the NQDS feed.
    (1)
    (A) Except as provided in (a)(1)(B) and (C), for the TotalView
entitlement there shall be a $70 monthly charge for each controlled
device.
    (B) Except as provided in (a)(1)(C), a non-professional subscriber,
as defined in Rule 7011(b), shall pay $14 per month for each controlled
device.
    (C) As an alternative to (a)(1)(A) and (B), a broker-dealer
distributor may purchase an enterprise license at a rate of $25,000 for
non-professional subscribers or $100,000 per month for both
professional and non-professional subscribers. The enterprise license
entitles a distributor to provide TotalView and OpenView to an
unlimited number of internal users, whether such users receive the data
directly or through third-party vendors, and external users with whom
the firm has a brokerage relationship. The enterprise license shall not
apply to relevant Level 1 and NQDS fees.
    (D) As an alternative to (a)(1)(A), (B) and (C), a market
participant may purchase an enterprise license at a rate

of $30,000 per month for internal use of non-display data. The
enterprise license entitles a distributor to provide TotalView and
OpenView to an unlimited number of non-display devices within its firm.
The enterprise license shall not apply to relevant Level 1 fees.
    (E) As an alternative to (a)(1)(A), (B), and (C), a broker-dealer
distributor may purchase an enterprise license at a rate of $300,000
for non-professional subscribers. The enterprise license entitles a
distributor to provide NQDS (as set forth in Rule 7017), TotalView and
OpenView to an unlimited number of internal users, whether such users
receive the data directly or through third-party vendors, and external
users with whom the firm has a brokerage relationship. The enterprise
license shall not apply to relevant Level 1 fees.
    (2) 30-Day Free-Trial Offer. NASDAQ shall offer all new individual
subscribers and potential new individual subscribers a 30-day waiver of
the user fees for TotalView. This waiver shall not include the
incremental fees assessed for the NQDS-only service, which are $30 for
professional users and $9 for non-professional users per month. This
fee waiver period shall be applied on a rolling basis, determined by
the date on which a new individual subscriber or potential individual
subscriber is first entitled by a distributor to receive access to
TotalView. A distributor may only provide this waiver to a specific
individual subscriber once.
    For the period of the offer, the TotalView fee of $40 per
professional user and $5 per non-professional user per month shall be
waived.
    (b) No change.
    (c) No change.
    (d) No change.
* * * * *
    (b) Not applicable.
    (c) Not applicable.

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

    In its filing with the Commission, NASDAQ included statements
concerning the purpose of, and basis for, the proposed rule change. The
text of these statements may be examined at the places specified in
Item III below, and is set forth in Sections A, B, and C below.

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

1. Purpose
    NASDAQ disseminates market data feeds in two capacities. First,
NASDAQ disseminates consolidated or ``core'' data in its capacity as
Securities Information Processor (``SIP'') for the national market
system plan governing securities listed on NASDAQ as a national
securities exchange (``NASDAQ UTP Plan'').\4\ Second, NASDAQ separately
disseminates proprietary or ``non-core'' data in its capacity as a
registered national securities exchange. Non-core data is any data
generated by the NASDAQ Market Center Execution System that is
voluntarily disseminated by NASDAQ separate and apart from the
consolidated data.\5\ NASDAQ has numerous proprietary data products,
such as NASDAQ TotalView, NASDAQ Last Sale, and NASDAQ Basic.
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    \4\ See Securities Exchange Act Release No. 59039 (Dec. 2, 2008)
at p. 41.
    \5\ Id.
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    NASDAQ continues to seek broader distribution of non-core data and
to reduce the cost of providing non-core data to larger numbers of
investors. In the past, NASDAQ has accomplished this goal in part by
offering similar enterprise licenses for professional and non-
professional usage of TotalView which contains the full depth of book
data for the NASDAQ Market Center Execution System. NASDAQ believes
that the adoption of enterprise licenses has led to greater
distribution of market data, particularly among non-professional users.
    Based on input from market participants, NASDAQ believes that this
increase in distribution is attributable in part to the relief it
provides distributors from the NASDAQ requirement that distributors
count and report each non-professional user of NASDAQ proprietary data.
In addition to increased administrative flexibility, enterprise
licenses also encourage broader distribution by firms that are
currently over the fee cap as well as those that are approaching the
cap and wish to take advantage of the benefits of the program. Further,
NASDAQ believes that capping fees in this manner creates goodwill with
broker-dealers and increases transparency for retail investors.
    Accordingly, NASDAQ is seeking to establish the Depth Data
Enterprise License Fee, an optional $300,000 per month non-professional
enterprise license for external distributors of any NASDQ depth-of-book
data product including the National Quotation Dissemination Service or
NQDS (Rule 7017) and TotalView and OpenView, (Rule 7023) (collectively,
``NASDAQ Depth Data''). This Depth Data Enterprise License Fee will
include non-professional usage, but will not include distributor
fees.\6\ This program will be available only to broker-dealers
registered under the Securities Exchange Act of 1934, and would cover
all usage fees with respect to both internal usage and re-distribution
to customers with whom the firm has a brokerage relationship. Non-
broker-dealer vendors and application service providers would not be
eligible for the enterprise license; such firms typically pass through
the cost of market data user fees to their customers.
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    \6\ Distributors who utilize the enterprise license would still
be liable for the applicable distributor fees.
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    The Depth Data Enterprise License Fee will cover usage fees for
NASDAQ Depth Data received directly from NASDAQ as well as data
received from third-party vendors (e.g., Bloomberg, Reuters, etc.).
Upon joining the program, firms may inform third-party market data
vendors they utilize (through a NASDAQ-provided form) that, going
forward, non-professional depth data usage by the broker-dealer may be
reported to NASDAQ on a non-billable basis. Such a structure attempts
to address a long-standing concern that broker-dealers are over-billed
for market data consumed by one person through multiple market-data
display devices. At the same time, the proposed billing structure will
continue to provide NASDAQ with accurate reporting information for
purposes of usage monitoring and auditing.
    The proposed Depth Data Enterprise License Fee is completely
optional and does not replace existing enterprise license fee
alternatives set forth in Rule 7023. Additionally, the proposal does
not impact individual usage fees for any product or in any way raise
the costs of any user of any NASDAQ data product. To the contrary, it
provides broker-dealers with an additional approach to providing more
NASDAQ data at a lower cost.
2. Statutory Basis
    NASDAQ believes that the proposed rule change is consistent with
the provisions of Section 6 of the Act,\7\ in general, and with Section
6(b)(4) of the Act,\8\ in particular, in that it provides an equitable
allocation of reasonable fees

among users and recipients of NASDAQ data. In adopting Regulation NMS,
the Commission granted self-regulatory organizations and broker-dealers
increased authority and flexibility to offer new and unique market data
to the public. It was believed that this authority would expand the
amount of data available to consumers, and also spur innovation and
competition for the provision of market data.
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    \7\ 15 U.S.C. 78f.
    \8\ 15 U.S.C. 78f(b)(4).
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    The Commission concluded that Regulation NMS--by deregulating the
market in proprietary data--would itself further the Act's goals of
facilitating efficiency and competition:

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

By removing ``unnecessary regulatory restrictions'' on the ability of
exchanges to sell their own data, Regulation NMS advanced the goals of
the Act and the principles reflected in its legislative history. If the
free market should determine whether proprietary data is sold to
broker-dealers at all, it follows that the price at which such data is
sold should be set by the market as well. NQDS, TotalView and OpenView
are precisely the sort of market data product that the Commission
envisioned when it adopted Regulation NMS.
    On July 21, 2010, President Barak Obama signed into law H.R. 4173,
the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010
(``Dodd-Frank Act''), which amended Section 19 of the Act. Among other
things, Section 916 of the Dodd-Frank Act amended paragraph (A) of
Section 19(b)(3) of the Act by inserting the phrase ``on any person,
whether or not the person is a member of the self-regulatory
organization'' after ``due, fee or other charge imposed by the self-
regulatory organization.'' As a result, all SRO rule proposals
establishing or changing dues, fees, or other charges are immediately
effective upon filing regardless of whether such dues, fees, or other
charges are imposed on members of the SRO, non-members, or both.
Section 916 further amended paragraph (C) of Section 19(b)(3) of the
Exchange Act to read, in pertinent part, ``At any time within the 60-
day period beginning on the date of filing of such a proposed rule
change in accordance with the provisions of paragraph (1) [of Section
19(b)], the Commission summarily may temporarily suspend the change in
the rules of the self-regulatory organization made thereby, 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 this title. If the Commission takes
such action, the Commission shall institute proceedings under paragraph
(2)(B) [of Section 19(b)] to determine whether the proposed rule should
be approved or disapproved.''
    NASDAQ believes that these amendments to Section 19 of the Act
reflect Congress's intent to allow the Commission to rely upon the
forces of competition to ensure that fees for market data are
reasonable and equitably allocated. Although Section 19(b) had formerly
authorized immediate effectiveness for a ``due, fee or other charge
imposed by the self-regulatory organization,'' the Commission adopted a
policy and subsequently a rule stipulating that fees for data and other
products available to persons that are not members of the self-
regulatory organization must be approved by the Commission after first
being published for comment. At the time, the Commission supported the
adoption of the policy and the rule by pointing out that unlike
members, whose representation in self-regulatory organization
governance was mandated by the Act, non-members should be given the
opportunity to comment on fees before being required to pay them, and
that the Commission should specifically approve all such fees. NASDAQ
believes that the amendment to Section 19 reflects Congress's
conclusion that the evolution of self-regulatory organization
governance and competitive market structure have rendered the
Commission's prior policy on non-member fees obsolete. Specifically,
many exchanges have evolved from member-owned not-for-profit
corporations into for-profit investor-owned corporations (or
subsidiaries of investor-owned corporations). Accordingly, exchanges no
longer have narrow incentives to manage their affairs for the exclusive
benefit of their members, but rather have incentives to maximize the
appeal of their products to all customers, whether members or non-
members, so as to broaden distribution and grow revenues. Moreover, we
believe that the change also reflects an endorsement of the
Commission's determinations that reliance on competitive markets is an
appropriate means to ensure equitable and reasonable prices. Simply
put, the change reflects a presumption that all fee changes should be
permitted to take effect immediately, since the level of all fees are
constrained by competitive forces.
    The recent decision of the United States Court of Appeals for the
District of Columbia Circuit in NetCoaliton v. SEC, No. 09-1042 (DC
Cir. 2010), although reviewing a Commission decision made prior to the
effective date of the Dodd-Frank Act, upheld the Commission's reliance
upon competitive markets to set reasonable and equitably allocated fees
for 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.' ''
NetCoaltion, at 15 (quoting H.R. Rep. No. 94-229, at 92 (1975), as
reprinted in 1975 U.S.C.C.A.N. 321, 323). The court's conclusions about
Congressional intent are therefore reinforced by the Dodd-Frank Act
amendments, which create a presumption that exchange fees, including
market data fees, may take effect immediately, without prior Commission
approval, and that the Commission should take action to suspend a fee
change and institute a proceeding to determine whether the fee change
should be approved or disapproved only where the Commission has
concerns that the change may not be consistent with the Act.

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

    NASDAQ does not believe that the proposed rule change will result
in any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended. Notwithstanding its
determination that the Commission may rely upon competition to
establish fair and equitably allocated fees for market data, the
NetCoaltion court found that the Commission had not, in that case,
compiled a record that adequately supported its conclusion that the
market for the data at issue in the case was competitive. For the
reasons discussed above, NASDAQ believes that the Dodd-Frank Act
amendments to Section 19 materially alter the scope of the Commission's
review of future market data filings, by creating a presumption

that all fees may take effect immediately, without prior analysis by
the Commission of the competitive environment. Even in the absence of
this important statutory change, however, NASDAQ believes that a record
may readily be established to demonstrate the competitive nature of the
market in question.
    There is intense competition between trading platforms that provide
transaction execution and routing services and proprietary data
products. Transaction execution and proprietary data products are
complementary in that market data is both an input and a byproduct of
the execution service. In fact, market data and trade execution are a
paradigmatic example of joint products with joint costs. The decision
whether and on which platform to post an order will depend on the
attributes of the platform where the order can be posted, including the
execution fees, data quality and price and distribution of its data
products. Without the prospect of a taking order seeing and reacting to
a posted order on a particular platform, the posting of the order would
accomplish little. Without trade executions, exchange data products
cannot exist. Data products are valuable to many end users only insofar
as they provide information that end users expect will assist them or
their customers in making trading decisions.
    The costs of producing market data include not only the costs of
the data distribution infrastructure, but also the costs of designing,
maintaining, and operating the exchange's transaction execution
platform and the cost of regulating the exchange to ensure its fair
operation and maintain investor confidence. The total return that a
trading platform earns reflects the revenues it receives from both
products and the joint costs it incurs. Moreover, an exchange's
customers view the costs of transaction executions and of data as a
unified cost of doing business with the exchange. A broker-dealer will
direct orders to a particular exchange only if the expected revenues
from executing trades on the exchange exceed net transaction execution
costs and the cost of data that the broker-dealer chooses to buy to
support its trading decisions (or those of its customers). The choice
of data products is, in turn, a product of the value of the products in
making profitable trading decisions. If the cost of the product exceeds
its expected value, the broker-dealer will choose not to buy it.
Moreover, as a broker-dealer chooses to direct fewer orders to a
particular exchange, the value of the product to that broker-dealer
decreases, for two reasons. First, the product will contain less
information, because executions of the broker-dealer's orders will not
be reflected in it. Second, and perhaps more important, the product
will be less valuable to that broker-dealer because it does not provide
information about the venue to which it is directing its orders. Data
from the competing venue to which the broker-dealer is directing orders
will become correspondingly more valuable.
    Thus, a super-competitive increase in the fees charged for either
transactions or data has the potential to impair revenues from both
products. ``No one disputes that competition for order flow is
`fierce'.'' NetCoalition at 24. However, the existence of fierce
competition for order flow implies a high degree of price sensitivity
on the part of broker-dealers with order flow, since they may readily
reduce costs by directing orders toward the lowest-cost trading venues.
A broker-dealer that shifted its order flow from one platform to
another in response to order execution price differentials would both
reduce the value of that platform's market data and reduce its own need
to consume data from the disfavored platform. Similarly, if a platform
increases its market data fees, the change will affect the overall cost
of doing business with the platform, and affected broker-dealers will
assess whether they can lower their trading costs by directing orders
elsewhere and thereby lessening the need for the more expensive data.
    Analyzing the cost of market data distribution in isolation from
the cost of all of the inputs supporting the creation of market data
will inevitably underestimate the cost of the data. Thus, because it is
impossible to create data without a fast, technologically robust, and
well-regulated execution system, system costs and regulatory costs
affect the price of market data. It would be equally misleading,
however, to attribute all of the exchange's costs to the market data
portion of an exchange's joint product. Rather, all of the exchange's
costs are incurred for the unified purposes of attracting order flow,
executing and/or routing orders, and generating and selling data about
market activity. The total return that an exchange earns reflects the
revenues it receives from the joint products and the total costs of the
joint products.
    Competition among trading platforms can be expected to constrain
the aggregate return each platform earns from the sale of its joint
products, but different platforms may choose from a range of possible,
and equally reasonable, pricing strategies as the means of recovering
total costs. For example, some platform may choose to pay rebates to
attract orders, charge relatively low prices for market information (or
provide information free of charge) and charge relatively high prices
for accessing posted liquidity. Other platforms may choose a strategy
of paying lower rebates (or no rebates) to attract orders, setting
relatively high prices for market information, and setting relatively
low prices for accessing posted liquidity. In this environment, there
is no economic basis for regulating maximum prices for one of the joint
products in an industry in which suppliers face competitive constraints
with regard to the joint offering. This would be akin to strictly
regulating the price that an automobile manufacturer can charge for car
sound systems despite the existence of a highly competitive market for
cars and the availability of after-market alternatives to the
manufacturer-supplied system.
    The market for market data products is competitive and inherently
contestable because there is fierce competition for the inputs
necessary to the creation of proprietary data and strict pricing
discipline for the proprietary products themselves. Numerous exchanges
compete with each other for listings, trades, and market data itself,
providing virtually limitless opportunities for entrepreneurs who wish
to produce and distribute their own market data. This proprietary data
is produced by each individual exchange, as well as other entities, in
a vigorously competitive market.
    Broker-dealers currently have numerous alternative venues for their
order flow, including ten self-regulatory organization (``SRO'')
markets, as well as internalizing broker-dealers (``BDs'') and various
forms of alternative trading systems (``ATSs''), including dark pools
and electronic communication networks (``ECNs''). Each SRO market
competes to produce transaction reports via trade executions, and two
FINRA-regulated Trade Reporting Facilities (``TRFs'') compete to
attract internalized transaction reports. Competitive markets for order
flow, executions, and transaction reports provide pricing discipline
for the inputs of proprietary data products.
    The large number of SROs, TRFs, BDs, and ATSs that currently
produce proprietary data or are currently capable of producing it
provides further pricing discipline for proprietary data products. Each
SRO, TRF, ATS, and BD is currently permitted to produce proprietary
data products, and many currently do or have announced plans to do so,
including NASDAQ, NYSE, NYSE Amex, NYSEArca, and BATS.

    Any ATS or BD can combine with any other ATS, BD, or multiple ATSs
or BDs to produce joint proprietary data products. Additionally, order
routers and market data vendors can facilitate single or multiple
broker-dealers' production of proprietary data products. The potential
sources of proprietary products are virtually limitless.
    The fact that proprietary data from ATSs, BDs, and vendors can by-
pass SROs is significant in two respects. First, non-SROs can compete
directly with SROs for the production and sale of proprietary data
products, as BATS and Arca did before registering as exchanges by
publishing proprietary book data on the Internet. Second, because a
single order or transaction report can appear in an SRO proprietary
product, a non-SRO proprietary product, or both, the data available in
proprietary products is exponentially greater than the actual number of
orders and transaction reports that exist in the marketplace.
    Market data vendors provide another form of price discipline for
proprietary data products because they control the primary means of
access to end users. Vendors impose price restraints based upon their
business models. For example, vendors such as Bloomberg and Reuters
that assess a surcharge on data they sell may refuse to offer
proprietary products that end users will not purchase in sufficient
numbers. Internet portals, such as Yahoo, impose a discipline by
providing only data that will enable them to attract ``eyeballs'' that
contribute to their advertising revenue. Retail broker-dealers, such as
Schwab and Fidelity, offer their customers proprietary data only if it
promotes trading and generates sufficient commission revenue. Although
the business models may differ, these vendors' pricing discipline is
the same: they can simply refuse to purchase any proprietary data
product that fails to provide sufficient value. NASDAQ and other
producers of proprietary data products must understand and respond to
these varying business models and pricing disciplines in order to
market proprietary data products successfully.
    In addition to the competition and price discipline described
above, the market for proprietary data products is also highly
contestable because market entry is rapid, inexpensive, and profitable.
The history of electronic trading is replete with examples of entrants
that swiftly grew into some of the largest electronic trading platforms
and proprietary data producers: Archipelago, Bloomberg Tradebook,
Island, RediBook, Attain, TracECN, BATS Trading and Direct Edge. A
proliferation of dark pools and other ATSs operate profitably with
fragmentary shares of consolidated market volume.
    Regulation NMS, by deregulating the market for proprietary data,
has increased the contestability of that market. While broker-dealers
have previously published their proprietary data individually,
Regulation NMS encourages market data vendors and broker-dealers to
produce proprietary products cooperatively in a manner never before
possible. Multiple market data vendors already have the capability to
aggregate data and disseminate it on a profitable scale, including
Bloomberg, and Thomson-Reuters.
    The court in NetCoalition concluded that the Commission had failed
to demonstrate that the market for market data was competitive based on
the reasoning of the Commission's NetCoalition order because, in the
court's view, the Commission had not adequately demonstrated that the
depth-of-book data at issue in the case is used to attract order flow.
NASDAQ believes, however, that evidence not before the court clearly
demonstrates that availability of depth data attracts order flow. For
example, NASDAQ submits that in and of itself, NASDAQ's decision
voluntarily to cap fees on existing products, as is the effect of an
enterprise license, is evidence of market forces at work. In fact, the
instant proposal creates a second enterprise license for non-
professional usage of depth data to complement the existing enterprise
license set forth at NASDAQ Rule 7023(a)(1)(C).
    Competition among platforms has driven NASDAQ continually to
improve its platform data offerings and to cater to customers' data
needs. For example, NASDAQ has developed and maintained multiple
delivery mechanisms (IP, multi-cast, and compression) that enable
customers to receive data in the form and manner they prefer and at the
lowest cost to them. NASDAQ offers front end applications such as its
``Bookviewer'' to help customers utilize data. NASDAQ has created new
products like TotalView Aggregate to complement TotalView ITCH and
Level 2, because offering data in multiple formatting allows NASDAQ to
better fit customer needs. NASDAQ offers data via multiple extranet
providers, thereby helping to reduce network and total cost for its
data products. NASDAQ has developed an online administrative system to
provide customers transparency into their data feed requests and
streamline data usage reporting. NASDAQ has also expanded its
Enterprise License options that reduce the administrative burden and
costs to firms that purchase market data.
    Despite these enhancements and a dramatic increase in message
traffic, NASDAQ's fees for depth-of-book data have remained flat. In
fact, as a percent of total customer costs, NASDAQ data fees have
fallen relative to other data usage costs--including bandwidth,
programming, and infrastructure--that have risen. The same holds true
for execution services; despite numerous enhancements to NASDAQ's
trading platform, absolute and relative trading costs have declined.
Platform competition has intensified as new entrants have emerged,
constraining prices for both executions and for data.

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

    Written comments were neither solicited nor received.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act.\10\ At any time within 60 days of the
filing of the 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. If the Commission takes such action, the
Commission shall institute proceedings to determine whether the
proposed rule should be approved or disapproved.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78s(b)(3)(a)(ii).
---------------------------------------------------------------------------

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 e-mail to<EMAIL_ADDRESS>Please include
File Number SR-NASDAQ-2010-111 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2010-111. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/
rules/sro.shtml). Copies of the submission, all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for Web site
viewing and printing in the Commission's Public Reference Room, on
official business days between the hours of 10 a.m. and 3 p.m. Copies
of the filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-NASDAQ-2010-111 and should be submitted on or before
October 12, 2010.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-23386 Filed 9-17-10; 8:45 am]
BILLING CODE 8010-01-P


[Federal Register: October 4, 2005 (Volume 70, Number 191)]
[Rules and Regulations]
[Page 57786-57788]
[DOCID:fr04oc05-19]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 65

[Docket No. FEMA-P-7646]

Changes in Flood Elevation Determinations

AGENCY: Federal Emergency Management Agency, Emergency Preparedness and
Response Directorate, Department of Homeland Security.

ACTION: Interim rule.

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SUMMARY: This interim rule lists communities where modification of the
Base (1% annual-chance) Flood Elevations (BFEs) is appropriate because
of new scientific or technical data. New flood insurance premium rates
will be calculated from the modified BFEs for new buildings and their
contents.

DATES: These modified BFEs are currently in effect on the dates listed
in the table below and revise the Flood Insurance Rate Map(s) in effect
prior to this determination for the listed communities.
    From the date of the second publication of these changes in a
newspaper of local circulation, any person has ninety (90) days in
which to request through the community that the Mitigation Division
Director of the Emergency Preparedness and Response Directorate
reconsider the changes. The modified BFEs may be changed during the 90-
day period.

ADDRESSES: The modified BFEs for each community are available for
inspection at the office of the Chief Executive Officer of each
community. The respective addresses are listed in the table below.

FOR FURTHER INFORMATION CONTACT: Doug Bellomo, P.E., Hazard
Identification Section, Emergency Preparedness and Response
Directorate, Federal Emergency Management Agency, 500 C Street, SW.,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The modified BFEs are not listed for each
community in this interim rule. However, the address of the Chief
Executive Officer of the community where the modified BFE
determinations are available for inspection is provided.
    Any request for reconsideration must be based on knowledge of
changed conditions or new scientific or technical data.
    The modifications are made pursuant to Section 201 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR Part 65.
    For rating purposes, the currently effective community number is
shown and must be used for all new policies and renewals.
    The modified BFEs are the basis for the floodplain management
measures that the community is required to either adopt or to show
evidence of being already in effect in order to qualify or to remain
qualified for participation in the National Flood Insurance Program
(NFIP).
    These modified BFEs, together with the floodplain management
criteria required by 44 CFR 60.3, are the minimum that are required.
They should not be construed to mean that the community must change any
existing ordinances that are more stringent in their floodplain
management requirements. The community may at any time enact stricter
requirements of its own, or pursuant to policies established by other
Federal, State, or regional entities.
    The changes in BFEs are in accordance with 44 CFR 65.4.
    National Environmental Policy Act. This rule is categorically
excluded from the requirements of 44 CFR Part 10, Environmental
Consideration. No

environmental impact assessment has been prepared.
    Regulatory Flexibility Act. The Mitigation Division Director of the
Emergency Preparedness and Response Directorate certifies that this
rule is exempt from the requirements of the Regulatory Flexibility Act
because modified base flood elevations are required by the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to
maintain community eligibility in the NFIP. No regulatory flexibility
analysis has been prepared.
    Regulatory Classification. This interim rule is not a significant
regulatory action under the criteria of Section 3(f) of Executive Order
12866 of September 30, 1993, Regulatory Planning and Review, 58 FR
51735.
    Executive Order 12612, Federalism. This rule involves no policies
that have federalism implications under Executive Order 12612,
Federalism, dated October 26, 1987.
    Executive Order 12778, Civil Justice Reform. This rule meets the
applicable standards of Section 2(b)(2) of Executive Order 12778.

List of Subjects in 44 CFR Part 65

    Flood insurance, Floodplains, Reporting and recordkeeping
requirements.

0
Accordingly, 44 CFR part 65 is amended to read as follows:

PART 65--[AMENDED]

0
1. The authority citation for Part 65 continues to read as follows:

    Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.

Sec.  65.4  [Amended]

0
2. The tables published under the authority of Sec.  65.4 are amended
as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Dates and name of
         State and county                Location           newspaper where     Chief executive officer   Effective date of modification   Community No.
                                                         notice was published        of  community
--------------------------------------------------------------------------------------------------------------------------------------------------------
Arkansas: Lonoke, Case No.: 04-06- City of Cabot.......  July 20, 2005; July   The Hon. Mickey            October 25, 2005..............          050309
 2140P.                                                   27, 2005; Cabot       Staumbaugh, Mayor, City
                                                          Star-Herald.          of Cabot, Post Office
                                                                                Box 1113, Cabot,
                                                                                Arkansas 72076.
Illinois: Will, Case No.: 04-05-   City of Lockport....  July 6, 2005; July    The Honorable Tim Murphy,  June 21, 2005.................          170703
 4087P.                                                   13, 2005; The         Mayor, City of Lockport,
                                                          Herald News.          222 East 9th Street,
                                                                                Lockport, Illinois 60441.
Illinois: Cook, Case No.: 04-05-   Village of Matteson.  August 4, 2005;       The Honorable Mark         July 22, 2005.................          170123
 3545P.                                                   August 11, 2005;      Stricker, President,
                                                          The Daily Southtown.  Village of Matteson,
                                                                                4900 Village Commons,
                                                                                Matteson, Illinois 60443.
Illinois: Cook, Case No.: 04-05-   Village of Orland     June 23, 2005; June   The Honorable Daniel       September 29, 2005............          170140
 2894P.                             Park.                 30, 2005; The         McLaughlin, Mayor,
                                                          Orland Park Star.     Village of Orland Park,
                                                                                14700 Ravinia Avenue,
                                                                                Orland Park, Illinois
                                                                                60462.
Illinois: Cook, Case No.: 04-05-   Village of Tinley     June 23, 2005; June   The Honorable Edward J.    September 29, 2005............          170169
 2894P.                             Park.                 20, 2005; The         Zabrocki, Mayor, Village
                                                          Tinley Park Star.     of Tinley Park, 16250
                                                                                South Oak Park Avenue,
                                                                                Tinley Park, Illinois
                                                                                60477.
Kansas: Sedgwick, Case No.: 04-07- City of Wichita.....  June 23, 2005; June   The Honorable Carlos       September 29, 2005............          200328
 526P.                                                    30, 2005; The         Mayans, Mayor, City of
                                                          Wichita Eagle.        Wichita, City Hall--1st
                                                                                Floor 455 North Main,
                                                                                Wichita, Kansas 67202.
New Mexico: Bernalillo, Case No.:  City of Albuquerque.  July 7, 2005; July    The Honorable Martin       October 13, 2005..............          350002
 04-06-1742P.                                             14, 2005;             Chavez, Mayor, City of
                                                          Albuquerque Journal.  Albuquerque, City/County
                                                                                Building, 11th Floor,
                                                                                Albuquerque, New Mexico
                                                                                87102.
New Mexico: Bernalillo, Case No.:  Unincorporated Areas  July 7, 2005; July    The Honorable Tom          October 13, 2005..............          350001
 04-06-1742P.                                             14, 2005;             Rutherford, Chairman,
                                                          Albuquerque Journal.  Bernalillo County, One
                                                                                Civic Plaza NW.,
                                                                                Albuquerque, New Mexico
                                                                                87102.
Oklahoma: Tulsa, Case No.: 04-06-  City of Broken Arrow  July 7, 2005; July    The Honorable Richard      October 13, 2005..............          400236
 1611P.                                                   14, 2005; Broken      Carter, Mayor, City of
                                                          Arrow Ledger.         Broken Arrow, 220 South
                                                                                First Street, Broken
                                                                                Arrow, Oklahoma 74103.
Oklahoma: Tulsa, Case No.: 04-06-  City of Broken Arrow  July 7, 2005; July    The Honorable Richard      October 13, 2005..............          400236
 1461P.                                                   14, 2005; Broken      Carter, Mayor, City of
                                                          Arrow Ledger.         Broken Arrow, 220 South
                                                                                First Street, Broken
                                                                                Arrow, Oklahoma 74103.
Texas: Bexar, Case No.: 04-06-     City of San Antonio.  August 10, 2005;      The Honorable Phil         August 2, 2005................          480045
 1194P.                                                   August 17, 2005;      Hardberger, Mayor, City
                                                          San Antonio Express   of San Antonio, Post
                                                          News.                 Office Box 839966, San
                                                                                Antonio, Texas 78283-
                                                                                3966.
Texas: Bexar, Comal and Kendall,   City of Fair Oaks     July 22, 2005; July   The Honorable E. L.        July 5, 2005..................          481644
 Case No.: 04-06-395P.              Ranch.                29, 2005; The         Gaubatz, Mayor, City of
                                                          Boerne Star Hill      Fair Oaks Ranch, 7286
                                                          Recorder.             Deitz Elkhorn, Fair Oaks
                                                                                Ranch, Texas 78015.

Texas: Collin County, Case No.:    City of Frisco......  July 22, 2005; July   The Honorable Mike         October 28, 2005..............          480134
 04-06-1201P.                                             29, 2005; The         Simpson, Mayor, City of
                                                          Frisco Enterprise.    Frisco, City Hall 6891
                                                                                Main Street, Frisco,
                                                                                Texas 75034.
Wisconsin: Milwaukee, Case No.:    City of Glendale....  August 4, 2005;       The Honorable R. Jay       November 11, 2005.............          550275
 04-05-3539P.                                             August 11, 2005;      Hintze, Mayor, City of
                                                          The North Shore       Glendale, 6936 North
                                                          Herald.               Braeburn Lane, Glendale,
                                                                                Wisconsin 53209.
Wisconsin: Milwaukee and           City of Milwaukee...  August 5, 2005;       The Honorable Tom          November 11, 2005.............          550278
 Washington, Case No.: 04-05-                             August 12, 2005;      Barrett, Mayor, City of
 3539P.                                                   The Milwaukee         Milwaukee, 200 E. Wells
                                                          Courier.              Street, Room 201,
                                                                                Milwaukee, Wisconsin
                                                                                53202.
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(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance.'')

    Dated: September 26, 2005.
David I. Maurstad,
Acting Director, Mitigation Division, Emergency Preparedness and
Response Directorate.
[FR Doc. 05-19817 Filed 10-3-05; 8:45 am]

BILLING CODE 9110-12-P