approximately $35.  The reported average annual salary for clerical
workers was $22,770, and the fully adjusted and loaded hourly rate is
approximately $18 per hour.

To represent the base labor rate for a contracted manager of monitoring
work done on-site, EPA used the average national salary for a natural
sciences manager of $88,660 per year with a fully loaded rate of $101
per hour.  The median annual salary for a statistician was $58,620 per
year with an adjusted hourly rate of approximately $65 per hour.
Biologists and biological technicians had an average hourly pay of $24
and $16 and a fully loaded rate of $57 and $38, respectively.

Director Labor Costs

 ADVANCE \u2 For Director costs, all the base labor rates and
compensation factors were derived from published employment cost trends
for State and local government workers for the first quarter of 2001
(EPA ICR 2060.02 citing BLS Employment Cost Trends, March 2001).  These
labor rates were adjusted to reflect labor rates for June of 2006 (BLS
Employment Cost Index).  EPA chose the BLS labor category of
white-collar professional specialist to represent the senior
administrative and technical staff that will oversee and manage the
NPDES permit program.  The base hourly rate for this category was
approximately $29 per hour, and, after adjusting for compensation and
inflation, it is approximately $54 per hour.

Similarly, EPA chose the BLS labor category of white-collar professional
technical to represent the junior technical staff that EPA expects to
perform the majority of the actual NPDES permitting work.  The reported
base pay for this category was approximately $18 per hour, which
becomes approximately $32 per hour after being adjusted for
compensation, overhead, and inflation.  The hourly wage for State
government clerical workers was $13 per hour before adjustment and
approximately $25 afterward.

6b(ii).	Estimating Capital and Operation and Maintenance Costs

A facility incurs capital/start-up costs when it purchases equipment or
builds structures that are needed for compliance with the rule’s
reporting and record keeping requirements and that the facility would
not use otherwise.  A facility incurs operation and maintenance (O&M)
costs when it uses services, materials, or supplies that are needed to
comply with the rule’s reporting and record keeping requirements and
that the facility would not use otherwise.  Any costs for the operation
and upkeep of capital equipment are considered O&M costs.  Another type
of O&M cost is for the purchase of contracted services, such as
laboratory analyses.  The purchase of supplies such as filing cabinets
and services such as photocopying or boat rental are also considered O&M
costs and are referred to as other direct costs (ODCs).  Capital and O&M
costs were estimated for the active ICR (EPA ICR No.  2060.02) and were
simply inflated to June 2006 dollars using CPI.

In general, the labor costs and O&M costs reported in this analysis are
assumed to represent typical average national cost estimates that are
likely to be incurred by Phase II existing facilities and by permitting
authorities.  EPA attempted to take into account various factors such as
decreases in labor efficiency that occur during extreme climate
conditions, equipment down time, and the occasional sample that might
need to be replaced because it was lost or spoiled during transport.
Tables 7a, 7b, and 8 provide a summary of facility-level average labor
costs, capital costs, and O&M costs over the 3-year ICR period.  For a
more detailed presentation of all compliance costs for facilities, see
Exhibits A.1 (approval), A.1 (renewal) and A.2 in Appendix A.

Table 7a.	Average per Facility Burden and Costs for each NPDES Permit
Application Activity

 ADVANCE \u3 Activities	Burden (hrs)	Labor Cost (2006$)	Capital (2006$)
O&M (2006$)

Start-up activities	43	$2,537	$0	$54

Permit application activities	247	$11,880	$0	$536

Proposal for collection of information for CDS	272	$14,644	$0	$803

Source waterbody flow information	104	$4,249	$0	$214

Design and construction technology plan	131	$5,786	$0	$428

Freshwater impingement mortality and/or entrainment characterization
study	9,089	$453,605	$0	$89,110

Marine impingement mortality and/or entrainment characterization study
16,783	$824,024	$0	$176,822

Freshwater pilot study for impingement only technologya	NA	NA	NA	NA

Freshwater pilot study for impingement and entrainment technology	1,556
$87,317	$176,494	$7,497

Marine pilot study for impingement only technology	1,185	$64,811
$259,798	$1,071

Marine pilot study for impingement and entrainment technology	1,859
$101,679	$502,316	$9,425

Verification monitoring plan	128	$7,058	$0	$428

Total*	31,397	1,577,590	938,608	286,388

a	During the ICR approval period, no facilities were identified which
required pilot study costs for freshwater impingement only, and these
activities were not costed.

*	The totals do not reflect the average costs for every facility because
not all facilities will need to perform every activity listed.

Table 7b.	Average per Facility Burden and Costs for each NPDES Permit
Renewal Activity

 ADVANCE \u3 Activities	Burden (hrs)	Labor Cost (2006$)	Capital (2006$)
O&M (2006$)

Start-up activities	13	$814	$-	$54

Permit application activities	147	$7,454	$-	$268

Proposal for collection of information for CDS	78	$4,070	$-	$214

Source waterbody flow information	31	$1,257	$-	$107

Design and construction technology plan	69	$3,098	$-	$161

Freshwater impingement mortality and/or entrainment characterization
study	2,919	$145,760	$-	$33,415

Marine impingement mortality and/or entrainment characterization study
5,401	$265,741	$-	$65,160

Total*	8,658	428,193	0	99,379

*	The totals do not reflect the average costs for every facility because
not all facilities will need to perform every activity listed.

Table 8.	Average Burden and Costs* per Facility for Annual Monitoring
and Reporting Activities

 ADVANCE \u3 Activities	Burden (hrs)	Labor Cost (2006$)	O&M (2006$)

Biological monitoring (impingement, freshwater)	379	$19,653	$536

Biological monitoring (impingement, marine)	482	$24,979	$696

Biological monitoring (entrainment, freshwater)	614	$32,250	$9,425

Biological monitoring (entrainment, marine)	776	$40,309	$12,092

Bi-Annual status report activities	236	$19,606	$803

Verification study	122	$7,756	$536

Total**	2,609	$144,553	$24,088

*	There are no capital costs associated with the annual monitoring and
reporting activities.

**	The totals do not reflect the average burden and costs for every
facility because not all facilities will need to perform every activity
listed.

Director O&M Costs

 ADVANCE \u2 EPA does not anticipate any O&M costs other than ODCs for
state Directors as a result of the 316(b) Phase II Existing Facility
rule.  Table 9 provides estimates of average state Director labor costs
and ODCs.  For a more detailed explanation of State Director costs, see
Exhibit A.3 (state) in Appendix A.

Table 9.	Average State Director Burden and Costs* for Activities

 ADVANCE \u3 Activities	Burden (hrs)	Labor Cost (2006$)	O&M (2006$)

Director Permit Issuance Activities (per Facility, approval period)	838
$40,109	$321

Director Permit Issuance Activities (per Facility, renewal period)	175
$8,189	$321

Verification study review (per facility)**	21	$800	$11

Annual director activities (per facility)	41	$1,930	$1,957

Total***	1,074	51,029	$2,610

*	There are no capital costs associated with the annual monitoring and
reporting activities.

**	Facilities must monitor for at least 2 years before submitting their
verification study for review.

***	The totals do not reflect the average director burden and costs for
each facility because not all facilities will need to perform every
activity listed.

6c.	Estimating Agency Burden and Costs

 ADVANCE \d0 As mentioned previously, 45 States and the Virgin Islands
are authorized to administer the NPDES permitting program.  For in-scope
facilities applying for reissued permits in the 10 unauthorized States
and Territories, EPA will incur costs and burdens similar to those
incurred by States with permitting authority.

6d.	Estimating the Respondent Universe and Total Burden and Costs

 ADVANCE \d0 During the 3 years covered by this ICR (which correspond to
years 4–6 after rule promulgation), there are an estimated 483
facilities along with 41 States that the Section 316(b) Phase II
Existing Facility rule could affect.  The rule would require each
respondent to comply with one or more provisions.  In turn, each
provision has numerous activities associated with it.  Exhibits A.5 and
A.6 in Appendix A provide an estimate of the number of respondents and
responses expected for each provision of the rule during each year of
the ICR approval period.  The annual estimates are based on the
compliance schedule used to estimate the cost of the final rule.  In
addition, Exhibits A.7-A.10 provide a summary of the respondent burdens
and costs for each year of the ICR period.  These estimates were
calculated by multiplying facility and state Director level burden and
cost estimates in Exhibits A.1-A.3 by the number of respondents
performing each activity in Exhibit A.5 (see Appendix A).

6e.	Bottom Line Burden Hours and Costs Tables

 ADVANCE \d0 This section provides a description of bottom line data
collection and record keeping burden and cost estimates for
implementation of the 316(b) Phase II Existing Facility rule.

6e(i).	Respondent Tally

The bottom line burden hours and costs for facilities and Directors are
the total annual hours and costs collectively incurred for all
activities during the ICR period.  Table 10 provides a summary of the
average annual number of respondents, burden hours, and costs.  A more
detailed summary can be found in Exhibit A.11 in Appendix A.

Table 10.	Summary of Average Annual Respondents, Burden, and Costs for
Facilities and State Directors for the ICR Period

 ADVANCE \u3 	Average Annual Respondents	Average Annual Burden (hours)
Average Annual Labor Costs (2006$)	Average Annual Capital and O&M Costs
(2006$)	Total Annual Costs (2006$)

Facilities	388	1,157,216	$61,610,181 	$14,918,509 	$76,528,690

State Directors	41	83,383	$3,982,108 	$45,336 	$4,027,444

Totals	429	1,240,599	$65,592,289 	$14,963,845 	$80,556,134

6e(ii).	Agency Tally

The bottom line burden hours and costs for the Federal agency are the
total annual hours and costs collectively incurred for all activities
during the ICR period.  Table 11 provides a summary of the average
annual agency burden hours and costs.  A more detailed summary can be
found in Exhibit A.11 in Appendix A.

Table 11.	Summary of Average Annual Agency Burden and Costs for the ICR
Period

 ADVANCE \u3 	Average Annual Burden (hours)	Average Annual Labor Costs
(2006$)	Average Annual O&M Costs (2006$)	Total Average Annual Costs
(2006$)

Agency Totals	4,403	$212,885 	$1,463 	$214,348

Table 12.	Burden Comparison: 2004 vs. 2007 ICR for 316(b) Phase II
Existing Facilities

 	2007	2004	%	Reason for Change

Facility Activities	Annual Average	Annual Average	Burden Change

	NPDES Permit Application Activities

Start-up Activities	2,139	6,636	-68%	adjustment

Permit Application Activities	22,988	27,746	-17%	adjustment

Proposal for Collection of Information for Comprehensive Demonstration
Study	8,346	33,003	-75%	adjustment

FW River/Stream Source Water Body Flow Information	2,773	4,400	-37%
adjustment

FW Lake/Reservoir Source Water Body Flow Information	1,684	1,792	-6%
adjustment

Design and Construction Technology Plan (Impingement Only)	5,016	5,226
-4%	adjustment

Design and Construction Technology Plan (Impingement & Entrainment)
4,055	5,408	-25%	adjustment

Freshwater Monitoring for Impingement Mortality & Entrainment
Characterization Study	246,543	535,060	-54%	adjustment

Marine Monitoring for Impingement Mortality & Entrainment
Characterization Study	290,853	707,334	-59%	adjustment

Impingement Mortality & Entrainment Characterization Study Initial
Analysis	11,795	45,257	-74%	adjustment

Impingement Mortality & Entrainment Characterization Study Final Report
25,079	31,654	-21%	adjustment

Pilot Study Impingement Monitoring Only (Freshwater) for Pilot Study	0	0
-	-

Pilot Study Impingement & Entrainment Monitoring (Freshwater) for Pilot
Study	2,075	10,373	-80%	adjustment

Pilot Study Impingement Monitoring Only (Marine) for Pilot Study	790	395
100%	adjustment

Pilot Study Impingement & Entrainment Monitoring (Marine) for Pilot
Study	13,633	22,308	-39%	adjustment

Verification Monitoring Plan	7,595	11,819	-36%	adjustment

NPDES Permit Application Activity Total	645,361	1,448,412	-55%
adjustment

Annual Activities

Biological Monitoring for Impingement (Freshwater)	89,949	22,614	298%
adjustment

Biological Monitoring for Impingement (Marine)	63,892	17,498	265%
adjustment

Biological Monitoring for Entrainment (Freshwater)	145,723	36,635	298%
adjustment

Biological Monitoring for Entrainment (Marine)	102,949	28,195	265%
adjustment

Bi-Annual Status Report Activities	87,320	31,104	181%	adjustment

Verification Study 	22,021	11,328	94%	adjustment

Annual Activity Yearly Labor Total	511,854	147,374	247%	adjustment

Facility Yearly Labor Total	1,157,216	1,595,786	-27%	adjustment

State Director Activities

Director Start-up Activities	0	1,533	-100%	adjustment

Director Permit Issuance Activities	65,764	97,633	-33%	adjustment

Verification Study Review 	2,968	0	-	-

Alternative Regulatory Requirements	0	640	-100%	adjustment

Annual Director Activities	14,651	4,800	205%	adjustment

 Yearly Total	83,383	104,606	-20%	adjustment

Respondents Total	1,240,599	1,700,392	-27%	adjustment

6f.	Reasons for Change in Burden

 ADVANCE \d0 The current approved ICR for the 316(b) phase II existing
facilities was developed in 2004 and was part of the rulemaking
documents. As shown in Table 12, the 2004 ICR estimated an annual
average respondent burden of 1,700,392 hours. This ICR estimates an
annual average respondent burden of 1,240,599 hours, which represents a
27% decrease in burden.

The change in burden results mainly from the shift from the approval
period to the renewal period of the 316(b) Phase II Existing Facilities
rule.  This ICR covers the last 2 years of the permit approval period
(i.e., years 4 and 5 after implementation) and the first year of the
renewal period (i.e., year 6 after implementation).  Activities for
renewing an NPDES permit already issued under the 316(b) Phase II
Existing Facilities rule are less burdensome than those for issuing a
permit for the first time.

Additionally, for the approval period ICR (EPA ICR No. 2060.02), EPA
assumed that all facilities complying with the rule would be in
NPDES-authorized States.  EPA has moved away from this assumption, and,
for this ICR, all calculations are based on the estimated number and
type of facilities in authorized and non-authorized States.

6g.	Burden Statement

 ADVANCE \d0 The annual average reporting and record keeping burden for
the collection of information by facilities responding to the Section
316(b) Phase II Existing Facility rule is estimated to be 2,983 hours
per respondent (i.e., an annual average of 1,157,216 hours of burden
divided among an anticipated annual average of 388 facilities).  The
state Director reporting and record keeping burden for the review,
oversight, and administration of the rule is estimated to average 2,034
hours per respondent (i.e., an annual average of 83,383 hours of burden
divided among an anticipated 41 States on average per year).

Burden means the total time, effort, or financial resources expended by
persons to generate, maintain, or disclose or provide information to or
for a Federal agency.  This includes the time needed to review
instructions; develop, acquire, install, and use technology and systems
for the purposes of collecting, validating, and verifying information,
processing and maintaining information, and disclosing and providing
information; adjust the existing ways to comply with any previously
applicable instructions and requirements; train personnel to be able to
respond to a collection of information; search data sources; complete
and review the collection of information; and transmit or otherwise
disclose information.  An agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information unless
it displays a currently valid OMB control number.  The OMB control
number for EPA’s regulations are listed at 40 CFR Part 9 and 48 CFR
Chapter 15.

To comment on EPA’s need for this information, the accuracy of the
provided burden estimates, and any suggested methods for minimizing
respondent burden, including the use of automated collection techniques,
the Agency has established a public docket for this ICR under Docket ID
No. EPA-HQ-OW-2007-0142, which is available for public viewing at the
Water Docket in the EPA Docket Center (EPA/DC), EPA West, Room B102,
1301 Constitution Ave., NW, Washington, DC. The EPA Docket Center Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone number for the Reading Room is
202-566-1744, and the telephone number for the Water Docket is
202-566-2426. An electronic version of the public docket is available
through the Federal Docket Management System (FDMS) at
http://www.regulations.gov/. Use FDMS to submit or view public comments,
to access the index listing of the contents of the public docket, and to
access documents in the public docket that are available electronically.
Once in the system, key in the docket ID number identified above. You
can also send comments to the Office of Information and Regulatory
Affairs, Office of Management and Budget, 725 17th Street, NW,
Washington, DC 20503, Attention: Desk Office for EPA. Please include the
EPA Docket ID No. OW-2007-0142 and OMB control number 2040-0257 in any
correspondence.

February 2007	 PAGE  4


[Federal Register Volume 87, Number 103 (Friday, May 27, 2022)]
[Notices]
[Page 32212]
[FR Doc No: 2022-11390]

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SECURITIES AND EXCHANGE COMMISSION

[SEC File No. 270-537, OMB Control No. 3235-0597]

Proposed Collection; Comment Request

Upon Written Request, Copies Available From: Securities and Exchange
Commission, Office of FOIA Services, 100 F Street NE, Washington, DC
20549-2736

Extension:
    Rule 31 and Form R31

    Notice is hereby given that, pursuant to the Paperwork Reduction
Act of 1995 (``PRA'') (44 U.S.C. 3501 et seq.), the Securities and
Exchange Commission (``Commission'') is soliciting comments on the
existing collection of information provided for in Rule 31 (17 CFR
240.31) and Form R31 (17 CFR 249.11) under the Securities Exchange Act
of 1934 (15 U.S.C. 78ee) (``Exchange Act''). The Commission plans to
submit this existing collection of information to the Office of
Management and Budget (``OMB'') for extension and approval.
    Section 31 of the Exchange Act requires the Commission to collect
fees and assessments from national securities exchanges and national
securities associations (collectively, ``self-regulatory
organizations'' or ``SROs'') based on the volume of their securities
transactions. To collect the proper amounts, the Commission adopted
Rule 31 and Form R31 under the Exchange Act whereby each SRO must
report to the Commission the volume of its securities transactions and
the Commission, based on those data, calculates the amount of fees and
assessments that each SRO owes pursuant to Section 31. Rule 31 and Form
R31 require each SRO to provide these data on a monthly basis.
    Currently, there are 27 respondents under Rule 31 that are subject
to the collection of information requirements of Rule 31: 24 national
securities exchanges, one national securities association, and two
registered clearing agencies that are required to provide certain data
in their possession needed by the SROs to complete Form R31, although
these two clearing agencies are not themselves required to complete and
submit Form R31.\1\ The Commission estimates that the total burden for
all 27 respondents is 432 hours per year. The Commission estimates
that, based on previous and current experience, three additional
national securities exchanges will become registered and subject to the
reporting requirements of Rule 31 over the course of the authorization
period and collectively incur a burden of 18 hours per year. Thus, the
Commission estimates the collective burden for all respondents
(existing and new added together) to be 450 hours per year. The SEC
does not believe that the 27 existing or 3 expected new respondents
will have to incur any capital or start-up costs, or any additional
operational or maintenance costs (other than as already discussed in
this paragraph), to comply with the collection of information
requirements imposed by Rule 31 and Form R31. The SEC estimates that
the average annual cost to the SEC of processing all of these filings
would be $20,307.48 (90.1 hours at an average of $225.39 per hour).
---------------------------------------------------------------------------

    \1\ Since the last renewal period, when there was one security
futures exchange that reported transactions, that exchanged has
ceased operation. Therefore, currently, no security futures
exchanges report any transaction in security futures on Form R31.
---------------------------------------------------------------------------

    Written comments are invited on: (a) Whether the proposed
collection of information is necessary for the proper performance of
the functions of the Commission, including whether the information
shall have practical utility; (b) the accuracy of the Commission's
estimate of the burden of the proposed collection of information; (c)
ways to enhance the quality, utility, and clarity of the information to
be collected; and (d) ways to minimize the burden of the collection of
information on respondents, including through the use of automated
collection techniques or other forms of information technology.
Consideration will be given to comments and suggestions submitted in
writing by July 26, 2022.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information under the PRA unless it
displays a currently valid OMB control number.
    Please direct your written comments to: David Bottom, Director/
Chief Information Officer, Securities and Exchange Commission, c/o John
Pezzullo, 100 F Street NE, Washington, DC 20549 or send an email to:
[email protected].

    Dated: May 23, 2022.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2022-11390 Filed 5-26-22; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: April 7, 2009 (Volume 74, Number 65)]
[Notices]
[Page 15795-15799]
[DOCID:fr07ap09-130]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59679; File No. SR-ISE-2007-97]

Self-Regulatory Organizations; International Securities Exchange,
LLC; Notice of Filing of Proposed Rule Change and Amendment No. 1
Thereto Relating to Market Data Fees

April 1, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on October 5, 2007, International Securities Exchange, LLC (the
``Exchange'' or the ``ISE'') filed with the Securities and Exchange
Commission (``Commission'') the proposed rule change as described in
Items I, II, and III below, which Items have been prepared by the
Exchange. On March 9, 2009, the Exchange filed Amendment No. 1 to the
proposed rule change.\3\ The Commission is publishing this notice to
solicit comments on the proposed rule change, as modified by Amendment
No. 1, from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 1 replaced and superseded the original filing
in its entirety.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange is proposing to amend its Schedule of Fees to
establish fees for a real-time depth of market data offering. The text
of the proposed rule change is available on the Exchange's Web site
(http://www.ise.com), at the principal office of the Exchange, and at
the Commission's Public Reference Room.

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

    In its filing with the Commission, the Exchange 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
    ISE currently creates market data that consists of options quotes
and orders and all trades that are executed on the Exchange. ISE also
produces a Best Bid/Offer, or BBO, with the aggregate size from all
outstanding quotes and orders at the top price level, or the ``top of
book.'' This ``core'' \4\ data is formatted according to Options Price
Reporting Authority (``OPRA'') specification and sent to OPRA for
redistribution to the public.
---------------------------------------------------------------------------

    \4\ ``Core'' data refers to the best-priced quotations and
comprehensive last sale reports of all markets that the Commission
requires a central processor to consolidate and distribute to the
public pursuant to joint-SRO plans. ``Non-core'' data refers to
products other than the consolidated products that markets offer
collectively under joint industry plans.
---------------------------------------------------------------------------

    In addition to the BBO ``core'' data, the Exchange also produces a
``non-core'' data feed, the ISE Depth of Market Data Feed (``Depth of
Market''), a service that aggregates all quotes and orders at the top
five price levels, on both the bid and offer side of the market. The
Depth of Market offering consists of non-marketable orders and quotes
that a prospective buyer or seller has chosen to display. The purpose
of this proposed rule change is to establish fees for the ISE Depth of
Market offering. Depth of Market, which is distributed in real time,
provides subscribers with a consolidated view of tradable prices beyond
the BBO. Further, Depth of Market shows additional liquidity and
enhances transparency for ISE traded options that is not currently
available through the OPRA feed. The proposed offering is available to
members and non-members, and to both professional and non-professional
subscribers.
    ISE believes that it has consistently supported the broadest, most
effective dissemination of market information to public investors. Its
multiple filings regarding ``non-core'' market data have provided
market participants with tools to enhance their trading
opportunities.\5\
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    \5\ See Securities Exchange Act Release Nos. 53212 (February 2,
2006), 71 FR 6803 (February 9, 2006) (Notice of Filing and Immediate
Effectiveness of Proposed Rule Change Establishing Fees for
Historical Options Tick Market Data); 53390 (February 28, 2006), 71
FR 11457 (March 7, 2006) (Order Granting Accelerated Approval of a
Proposed Rule Change Establishing Fees for Historical Options Tick
Market Data for Non-Members); 53756 (May 3, 2006), 71 FR 27526 (May
11, 2006) (Order Granting Approval of a Proposed Rule Change
Establishing Fees for Enhanced Sentiment Market Data); 56254 (August
15, 2007), 72 FR 47104 (August 22, 2007) (Notice of Filing and
Immediate Effectiveness of Proposed Rule Change Relating to ISE
Open/Close Trade Profile Fees; 56315 (August 24, 2007), 72 FR 50148
(August 30, 2007) (Order Approving a Proposed Rule Change Relating
to ISEE Select Market Data Fees).
---------------------------------------------------------------------------

    The Exchange proposes to charge distributors \6\ of Depth of Market
$5,000 per month. In addition, the Exchange proposes to charge the
distributor a monthly fee per controlled device \7\ of (i) $50 per
controlled device for Professionals at a distributor where the data is
for internal use only, (ii) $50 per controlled device for Professionals
who receive the data from a distributor where the data is further
redistributed externally, and (iii) $5 per controlled device for Non-
Professionals who receive the data from a distributor. The Exchange
proposes to limit for any one month the combined maximum amount of fees
payable by a distributor, as follows: (i) $7,500 for Professionals at a
distributor where the data is for internal use only, (ii) $12,500 for
Professionals where the data is further redistributed externally in a
controlled device, and (iii) $10,000 for Non-Professionals who receive
the data in a controlled device from a distributor. In an effort to
accommodate a distributor's development effort to integrate the Depth
of Market offering, the Exchange proposes to charge distributors a flat
fee of $1,000 for the first month after connectivity has been
established between ISE and the distributor. Further, the Exchange
proposes to waive all user fees during this one month period.
---------------------------------------------------------------------------

    \6\ ISE proposes that a ``distributor'' be defined as any firm
that receives an ISE data feed directly from ISE or indirectly
through a ``redistributor'' and then distributes it either
internally or externally. Further, ISE proposes that all
distributors execute an ISE distributor agreement.
``Redistributors'' include market data vendors and connectivity
providers such as extranets and private network providers.
    \7\ ISE proposes that a ``controlled device'' be defined as any
device that a distributor of the ISE Depth of Market permits to
access the information in the Depth of Market offering.
---------------------------------------------------------------------------

    In differentiating between Professional and Non-Professional
subscribers, the Exchange proposes to apply the same criteria for
qualification as a Non-Professional subscriber as the Consolidated Tape
Association (``CTA'') Plan and Consolidated Quotation System Plan
Participants use. Accordingly, a ``Non-Professional Subscriber'' is an
authorized end-user of Depth of Market data who is a natural person and
who is neither: (a) Registered or qualified with the Securities and
Exchange Commission (the ``Commission''), the Commodities Futures
Trading Commission, any state securities agency, any securities
exchange or association, or any commodities or futures contract market
or association; (b) engaged as an ``investment advisor'' as that term
is defined Section 202(a)(11) of the Investment Advisers Act of 1940
(whether or not registered or qualified under that act); nor (c)
employed by a bank or other organization exempt from registration under
Federal and/or state securities laws to perform functions that would
require him/her to be so registered or qualified if he/she were to
perform such functions for an organization not so exempt. A
``Professional Subscriber'' is an authorized end-user of Depth of
Market that has not qualified as a Non-Professional Subscriber.
    Under the proposal, the Exchange would apply one device fee in
respect of professional subscribers to Depth of Market and a different,
lower device fee in respect of non-professional subscribers. The use of
a lower fee for non-professional subscribers than for professional
subscribers has a long history. CTA first adopted a non-professional
subscriber fee 25 years ago.\8\ Since then, individual investors have
had broadened access to real-time market information. The Exchange
believes that a non-professional subscriber fee for Depth of Market
will likely lead to greater access by individual investors to Depth of
Market information and thereby to further the statutory goals expressed
in Section 11A(a)(1)(c) of the Securities Exchange Act of 1934 (the
``Exchange Act'').
---------------------------------------------------------------------------

    \8\ See the Sixth Substantive Amendment and Sixth Charges
Amendment to the CTA Plan, File No. S7-433, Release Nos. 34-20002
(July 22, 1983), 34-20239 (September 30, 1983) and 34-20386
(November 17, 1983).
---------------------------------------------------------------------------

    Further, Section 603(a)(2) of Regulation NMS requires markets to
distribute market data ``on terms that are not unreasonably
discriminatory.'' Given the differences in data usage between
professional subscribers and non-professional subscribers and the
industry's long acceptance of different fees for professional
subscribers and non-professional subscribers, the Exchange believes
that the proposed

non-professional subscriber fee does not unreasonably discriminate
against the professional subscriber fee.
    The Exchange believes the proposed fees for Depth of Market comport
with the standard that the Commission established for determining
whether market data fees relating to non-core market data products are
fair and reasonable. In its recent ``Order Setting Aside Action by
Delegated Authority and Approving Proposed Rule Change Relating to NYSE
Arca Data'' (the ``NYSE ArcaBook Approval Order''),\9\ the Commission
reiterated its position from its release approving Regulation NMS that
it should ``allow market forces, rather than regulatory requirements,
to determine what, if any, additional quotations outside the NBBO are
displayed to investors.''\10\
---------------------------------------------------------------------------

    \9\ See Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770 (December 9, 2008) (SR-NYSEArca-2006-21).
    \10\ See Regulation NMS Release, 70 FR at 37566-37567
(addressing differences in distribution standards between core data
and non-core data).
---------------------------------------------------------------------------

    The Commission went on to state that:

    The Exchange Act and its legislative history strongly support
the Commission's reliance on competition, whenever possible, in
meeting its regulatory responsibilities for overseeing the SROs and
the national market system. Indeed, competition among multiple
markets and market participants trading the same products is the
hallmark of the national market system.\11\
---------------------------------------------------------------------------

    \11\ NYSE ArcaBook Approval Order at pp. 46-47.

    The Commission then articulated the standard that it will apply in
assessing the fairness and reasonableness of market data fees for non-
---------------------------------------------------------------------------
core products, as follows:

    With respect to non-core data, * * * the Commission has
maintained a market-based approach that leaves a much fuller
opportunity for competitive forces to work. This market-based
approach to non-core data has two parts. The first is to ask whether
the exchange was subject to significant competitive forces in
setting the terms of its proposal for non-core data, including the
level of any fees. If an exchange was subject to significant
competitive forces in setting the terms of a proposal, the
Commission will approve the proposal unless it determines that there
is a substantial countervailing basis to find that the terms
nevertheless fail to meet an applicable requirement of the Exchange
Act or the rules thereunder.\12\
---------------------------------------------------------------------------

    \12\ Id. at pp. 48-49.

    The options industry is subject to significant competitive forces
and the introduction of the Depth of Market offering is just one
response to that competition. The options Exchanges compete intensely
for order flow. The primary purpose of any ``non-core'' data offering
by an Exchange is to attract order flow. Attracting order flow is a
significant concern of any exchange, be it an equity, options or
futures exchange. ``If an exchange cannot attract orders, it will not
be able to execute transactions. If it cannot execute transactions, it
will not generate transaction revenue. If an exchange cannot attract
orders or execute transactions, it will not have market data to
distribute,'' \13\ or to monetize.
---------------------------------------------------------------------------

    \13\ Id. at p. 51.
---------------------------------------------------------------------------

    ISE currently competes with six other options exchanges for order
flow and ``the competition is fierce.'' \14\ The number of registered
options exchanges in the United States has increased 75% since ISE
itself became an exchange in 2000. Although ISE's total volume
increased in 2008 over 2007, its market share suffered a decline. The
table below details market share among the options exchanges in all
listed products from 2006 through 2008, showing increases and decreases
in market share quarter-by-quarter.
---------------------------------------------------------------------------

    \14\ Id. at p. 52.

                                                  Quarterly Market Share Based on Average Daily Volume
--------------------------------------------------------------------------------------------------------------------------------------------------------

--------------------------------------------------------------------------------------------------------------------------------------------------------
               Period                     ISE %
                                          AMEX %
                                          BOX %
                                          CBOE %
                                        NYSEArca %
                                          PHLX %
                                          NSDQ %
--------------------------------------------------------------------------------------------------------------------------------------------------------
Q1 06..............................     30.46            10.05  [dtri      5.04  [dtri     31.79             9.98  [dtri     12.68  [dtri       n/a
                                                                  f]               f]                                f]               f]
Q2 06..............................     29.05  [dtri      9.62  [dtri      4.92  [dtri     35.25             8.46  [dtri     12.70              n/a
                                                 f]               f]               f]                                f]
Q3 06..............................     29.59             9.66             4.64  [dtri     33.81  [dtri      9.29            13.01              n/a
                                                                                f]               f]
Q4 06..............................     27.86  [dtri      9.56  [dtri      4.07  [dtri     32.24  [dtri     10.96            15.30              n/a
                                                 f]               f]               f]               f]
Q1 07..............................     27.76  [dtri      9.60             4.08            33.73            11.40            13.42  [dtri       n/a
                                                 f]                                                                                f]
Q2 07..............................     28.20             8.88  [dtri      4.32            33.92            10.81  [dtri     13.88              n/a
                                                                  f]                                                 f]
Q3 07..............................     28.11  [dtri      8.02  [dtri      4.88            34.05            10.60  [dtri     14.34              n/a
                                                 f]               f]                                                 f]
Q4 07..............................     28.25             7.49  [dtri      4.71  [dtri     30.77  [dtri     13.71            15.06              n/a
                                                                  f]               f]               f]
Q1 08..............................     29.40             6.02  [dtri      4.66  [dtri     31.97            13.44  [dtri     14.50  [dtri       n/a
                                                                  f]               f]                                f]               f]
Q2 08..............................     28.79  [dtri      6.16             5.16            32.28            11.37  [dtri     15.61             0.63
                                                 f]                                                                  f]
Q3 08..............................     27.55  [dtri      5.54  [dtri      4.87  [dtri     34.04            11.27  [dtri     15.50  [dtri      1.23
                                                 f]               f]               f]                                f]               f]
Q4 08..............................     26.81  [dtri      5.46  [dtri      5.29            34.88            10.45  [dtri     15.51             1.60
                                                 f]               f]                                                 f]
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Despite the frequent variations in market share, no single exchange
has more than approximately one-third the market share. Given the
current competitive pressures in the options industry, no exchange can
take any of its share of trading for granted. ``Even the most dominant
exchanges are subject to severe pressure in the current market
environment.'' \15\ In order for ISE to maintain its market share, it
must compete vigorously for order flow. Given the portability of order
flow from one exchange to another, a pricing misstep can easily result
in loss of order flow, customers and ultimately, revenue.
---------------------------------------------------------------------------

    \15\ Id. at p. 53.
---------------------------------------------------------------------------

    Moreover, absent certain exclusively licensed monopolistic
products, market participants have the ability to send their order to
any of the seven options exchanges since nearly all underlying
securities whose options are available for trading are offered at each
of the seven exchanges. For example, of the more than 2,000 underlying
securities whose options are traded on ISE, only 41 products (two
percent) are singly-listed on ISE, which collectively represents less
than .02 percent of ISE's total contract volume. Of those 41 products,
16 are proprietary ISE index options, all of which are available for
licensing by ISE to any other exchange; four are index products that
ISE has non-exclusively licensed from index providers and which are
available to other exchanges to license; 10 are Exchange Traded Funds
that other exchanges have chosen not to list; and the remaining 11
products are equities that either the other exchanges have chosen not
to list or are in the process of being de-listed and thus are available
for closing only transactions on ISE.
    With regards to the 16 proprietary index options, ISE notes that
they are traded exclusively on ISE not due to any type of monopoly
control, but rather due to lack of interest by other exchanges. ISE
further notes that when

another exchange has shown interest in trading a proprietary ISE
product, the Exchange has licensed the trading in that product to other
exchanges. For example, NYSE Arca recently signed a license agreement
with ISE to list and trade ISE's foreign currency options and that ISE
proprietary product is now multiply listed. Although this introduces
competition for order flow, ISE believes options that are listed on
multiple exchanges provide investors with better markets for execution
and lower fees. It also tends to raise overall industry trading volume
in the product. We are ready, willing, and able to license our
proprietary index products for trading on other exchanges on
commercially reasonable terms.
    The Exchange further notes that there are a number of alternative
``non-core'' products available to investors. The ISE Depth of Market
does not provide a complete picture of the full market for options on a
security. Rather, an investor has a number of different information
sources to choose from in determining which exchange has the best
market. The other exchanges, all of whom can produce their own depth of
market products, as well independent distribution of order data by
securities firms and data vendors, all pose a competitive threat.
Moreover, the Exchange believes that the great majority of investors do
not believe that it is necessary to purchase a depth-of-book product.
    Currently, of nearly 200 firms that are members of the Exchange,
less than 15 percent currently access Depth of Market, which the
Exchange is offering at no cost, pending approval of this proposed rule
change. The lack of committed members affirms the Exchange's view that
Depth of Market, while it may serve a beneficial purpose and would be
`nice to have', does not contain information that is so critical that
it would adversely impact trading decisions made by investors. Further,
while Depth of Market is available to non-professional or ``retail''
subscribers, the Exchange, despite the low level of subscription by
professional subscribers, believes that Depth of Market is primarily a
product for market professionals, who have access to other sources of
market data and will purchase Depth of Market only if they determine
that the perceived benefits outweigh the costs. The Exchange believes
the Commission concurs with this sentiment, when it said in the NYSE
ArcaBook Approval Order, ``the fact that 95% of the professional users
of [Nasdaq] core data choose not to purchase the depth-of-book order
data of a major exchange strongly suggests that no exchange has
monopoly pricing power for its depth-of-book order data.'' \16\
---------------------------------------------------------------------------

    \16\ Id. at p. 64.
---------------------------------------------------------------------------

    In sum, the availability of alternative sources of information
coupled with the Exchange's critical need to attract order flow impose
significant competitive pressure on ISE to act equitably, fairly, and
reasonably in setting fees for Depth of Market. The introduction of
this new market data offering is, in part, a response to that pressure.
For the reasons cited above, the Exchange believes that the Depth of
Market offering, including the proposed fees, is equitable, fair,
reasonable and not unreasonably discriminatory. In addition, the
Exchange believes that no substantial countervailing basis exists to
support a finding that the proposed terms and fees for Depth of Market
fails to meet the requirement of the Exchange Act.
2. Statutory Basis
    The basis under the Exchange Act for this proposed rule change is
the requirement under Section 6(b)(4),\17\ that an exchange have an
equitable allocation of reasonable dues, fees and other charges among
its members and other persons using its facilities; with Section
6(b)(5) \18\ of the Act, which requires, among other things, that the
rules of a national securities exchange be designed to promote just and
equitable principles of trade, to remove impediments to and perfect the
mechanism of a free and open market and a national market system and,
in general, to protect investors and the public interest; and with
Section 6(b)(8) \19\ of the Act, which requires that the rules of a
national securities exchange not impose any burden on competition not
necessary or appropriate in furtherance of the purposes of the Act. The
Exchange developed and conducted a comprehensive survey of a cross-
section of participants in the financial services industry regarding
their level of interest in a number of proprietary ``non-core'' market
data offerings. Based on the results of that survey, the Exchange
developed a business plan to create and offer a number of proprietary
market data products targeted to potential user groups, e.g.,
individual investors, institutional investors, broker-dealers, etc. The
Exchange also retained a consultant to validate the business plan and
to provide advice on the structure and amount of fees to charge for
these products. Based on all of this information, the Exchange
established a pricing structure for its Depth of Market offering for
professional and non-professional subscribers. The Exchange believes
the proposed rule filing provides market participants with added
transparency to help improve trading efficiency.
---------------------------------------------------------------------------

    \17\ 15 U.S.C. 78f(b)(4).
    \18\ 15 U.S.C. 78f(b)(5).
    \19\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

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

    The proposed rule change does not impose any burden on competition
that is not necessary or appropriate in furtherance of the purposes of
the Act.

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

    The Exchange has not solicited, and does not intend to solicit,
comments on this proposed rule change. The Exchange has not received
any unsolicited written comments from members or other interested
parties.

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

    Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
    (A) By order approve the proposed rule change, or
    (B) Institute proceedings to determine whether the proposed rule
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. In particular, the Commission notes
that unlike the market data fees approved by the Commission in the NYSE
ArcaBook Approval Order, ISE's fees would apply to securities that are
traded only on ISE. Would the inclusion of data for such products in
the ISE Depth of Market feed undermine a finding, consistent with the
approach set forth in the NYSE ArcaBook Approval Order, that ISE was
subject to significant competitive forces in setting the terms of its
fee proposal for non-core data products? Should the Commission evaluate
those singly-listed securities for which another exchange would be
required to obtain a license to

trade differently than singly-listed securities that do not require a
license? Does it matter whether any such required license must be
obtained from ISE or a third party? ISE represents that it would
license its proprietary index products to any other exchange on
commercially reasonable terms. How should this representation be
factored into the Commission's evaluation? What impact, if any, would
the trading volume represented by such singly-listed securities have on
the analysis? Are there any factors with respect to singly-listed
securities that would impact an analysis of whether ISE's proposed fees
are 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-ISE-2007-97 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.

All submissions should refer to File Number SR-ISE-2007-97. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/
sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of such 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-ISE-2007-97 and should be
submitted on or before April 28, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\20\
---------------------------------------------------------------------------

    \20\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-7836 Filed 4-6-09; 8:45 am]

BILLING CODE 8010-01-P