[Federal Register: December 19, 2008 (Volume 73, Number 245)]
[Notices]
[Page 77680]
[DOCID:fr19de08-78]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket Nos. EL03-166-005; EL03-199-005]

Powerex Corp.; Notice of Filing

December 15, 2008.
    Take notice that on December 12, 2008, Powerex Corp. filed an
amendment to the Agreement and Stipulation jointly filed with the
Commission Trial Staff on October 31, 2003 in compliance with the
Commission's November 14, 2008, Order Denying Rehearing. Aquila
Merchant Services, Inc., 125 FERC ] 61,175, further order denying
reh'g, 125 FERC ] 61,218 (2008).
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211, 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed on or before the comment date.
Anyone filing a motion to intervene or protest must serve a copy of
that document on the Applicant and all the parties in this proceeding.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://
www.ferc.gov. Persons unable to file electronically should submit an
original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the
``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For
TTY, call<PHONE_NUMBER>.
    Comment Date: 5 p.m. Eastern Time on January 2, 2009.

Kimberly D. Bose,
Secretary.
 [FR Doc. E8-30224 Filed 12-18-08; 8:45 am]

BILLING CODE 6717-01-P


FACT SHEET  SEQ CHAPTER \h \r 1

District Court Decision Vacating the Federal Regulation Excluding
Discharges Incidental to Normal Vessel Operations from Clean Water Act
Permitting as of September 30, 2008

How did the lawsuit get started and what is it about?

In January 1999, a number of interested parties submitted a rulemaking
petition to EPA asking the Agency to repeal its long-standing regulation
at 40 C.F.R. 122.3(a) that excludes certain discharges incidental to the
normal operation of vessels, including ballast water, from the
requirement to obtain a National Pollutant Discharge Elimination System
(NPDES) permit under the Clean Water Act (CWA).  The petition seeking
repeal expressed concern over discharges of ships’ ballast water
containing invasive species and other matter.  In September 2003, EPA
denied the petition.  Among its bases for denial, the Agency determined
that actions by the federal government under other statutes specific to
ballast water were likely to be more effective and efficient in
addressing the concerns raised in the petition than reliance on NPDES
permits.  The denial also noted that the regulation had existed
unchallenged since its initial issuance in May 1973, and that
Congressional enactment of subsequent statutory schemes and amendments
indicated Congress was aware of, and accepted, the regulatory exclusion.
 Following EPA’s denial decision, several groups filed a lawsuit in
December 2003 in the U.S. District Court for the Northern District of
California (Northwest Environmental Advocates et al. v. EPA, No. CV
03-05760 SI).

What was the court’s ruling?

On March 30, 2005, the District Court ruled that the EPA regulation
excluding discharges incidental to the normal operation of a vessel from
NPDES permitting exceeded the Agency’s authority under the CWA.  In
subsequent proceedings before the Court, EPA argued that any relief
granted by the Court should be limited to ballast water matters alone.
However, on September 18, 2006, the Court issued an order vacating
(revoking) the regulatory exclusions at 40 C.F.R. 122.3(a) as of
September 30, 2008.  The Court reasoned that delaying the vacatur by two
years would give the Agency time to address the ramifications of the
vacatur.  Because the Agency respectfully disagrees with the District
Court’s decision, on November 16, 2006, the United States filed a
notice of appeal with the U.S. Court of Appeals for the Ninth Circuit
and that appeal is currently pending.

What types of vessels and discharges might become subject to CWA
permitting?

Because the Court’s decision is not limited to vessels with ballast
water tanks, it appears to implicate an extremely large number of
vessels and a range of discharges.  Information available from the U.S.
Coast Guard indicates that in 2005, vessels equipped with ballast water
tanks alone accounted for 8,400 ships reporting over 86,000 port calls.
However, there are also 13 million State-registered recreational boats,
81,000 commercial fishing vessels, and 53,000 freight and tank barges
operating in U.S. waters.  A final rulemaking undertaken specific to the
authority of CWA § 312(n) with respect to vessels of the Armed Forces
is illustrative as to the potential variety of operational discharges.
For purposes of CWA § 312(n), that rulemaking identified 39 such
discharges in the context of military vessels, and it would appear that
besides ballast water, non-military vessels could generate approximately
two dozen, or perhaps more, of these kinds of operational discharges
(e.g., bilgewater, deck runoff, graywater).  See, 40 CFR 1700.4; 1700.5.

Are there any exemptions relevant to vessel discharges unaffected by the
Court’s ruling?

The Court’s ruling would not affect vessel discharge exemptions from
permitting that are specifically provided for in the CWA itself.  For
example, § 502(6)(A) excludes from the Act’s definition of
“pollutant” sewage from vessels (including graywater in the case of
commercial vessels operating on the Great Lakes) and discharges
incidental to the normal operation of a vessel of the Armed Forces
within the meaning of the CWA § 312.  As another example, the CWA
provides in § 502(12)(B) that discharges from vessels (i.e., discharges
other than those when the vessel is operating in a capacity other than
as a means of transportation) do not constitute the “discharge of a
pollutant” when such discharges occur beyond the limit of the three
mile territorial sea.  Because both “a pollutant” and a “discharge
of a pollutant” are prerequisites to the requirement to obtain an
NPDES permit, these two statutory provisions have the effect of
exempting the vessel discharges they address from the requirement to
obtain an NPDES permit.

What are the implications of the Court’s ruling and what is EPA doing
in response?

Section 301(a) of the CWA generally prohibits the “discharge of a
pollutant” without an NPDES permit.  If the District Court’s order
remains unchanged, the regulatory exclusion allowing for the discharge
of pollutants incidental to the normal operation of a vessel without an
NPDES permit will be vacated by the court on September 30, 2008.  This
means that, as of that date, that regulatory exclusion will no longer
exempt such discharges from the prohibition in CWA section 301(a).  The
CWA authorizes civil and criminal penalties for violations of the
prohibition against the discharge of a pollutant without a permit, and
also allows for citizen suits against violators.

Because discharges of pollutants incidental to the normal operation of
vessels have been exempt from the NPDES permitting requirement for over
30 years, the Agency lacks practical experience permitting them.  These
types of discharges pose unique challenges, because vessels are highly
mobile and the vessel universe is extremely diverse.  In order to
address the above ramifications of the Court’s ruling, EPA is
exploring all available options, including establishment of an
appropriate permitting program, and plans to solicit public input as it
does so.

For more information:

Ruby Cooper, Water Permits Division,<PHONE_NUMBER>,   HYPERLINK
<EMAIL_ADDRESS><EMAIL_ADDRESS>or

John Lishman, Oceans and Coastal Protection Division,<PHONE_NUMBER>,
HYPERLINK<EMAIL_ADDRESS><EMAIL_ADDRESS>.

Documents related to the rulemaking petition and the Court’s ruling
are available on-line at:

  HYPERLINK
"http://www.epa.gov/owow/invasive_species/ballast_water.html"
http://www.epa.gov/owow/invasive_species/ballast_water.html

# 	# 	#

*** FOR INFORMATIONAL PURPOSES ONLY  ***

*** FOR INFORMATIONAL PURPOSES ONLY  ***

United States Environmental Protection Agency

Office of Water

Office of Wastewater Management

Water Permits Division

April 2007


[Federal Register Volume 84, Number 158 (Thursday, August 15, 2019)]
[Notices]
[Pages 41769-41771]
[FR Doc No: 2019-17490]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-86619; File No. SR-IEX-2019-05]

Self-Regulatory Organizations; Investors Exchange LLC; Order
Granting Approval of a Proposed Rule Change to Establish a Retail Price
Improvement Program

August 9, 2019.

I. Introduction

    On June 20, 2019, Investors Exchange LLC (``IEX'' or ``Exchange'')
filed with the Securities and Exchange Commission (``Commission''),
pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Exchange Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule
change to establish a Retail Price Improvement Program (``Retail
Program'') on the Exchange. The proposed rule change was published for
comment in the Federal Register on July 5, 2019.\3\ The Commission has
received no comments on the proposed rule change. This order approves
the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 86241 (June 28,
2019), 84 FR 32238 (``Notice'').
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II. Description of the Proposed Rule Change

    IEX proposes to adopt Exchange Rule 11.232 to establish the Retail
Program, which the Exchange intends will incentivize IEX Members to add
midpoint liquidity to the Exchange to provide additional opportunities
for retail investors to obtain price improvement.
    Specifically, under the Retail Program, IEX Members could apply to
become a Retail Member Organization (``RMO''), which designation would
permit them to submit certain agency or riskless principal orders that
reflect trading interest of a natural person and that are designated
with a ``Retail Order'' modifier. Any IEX Member will be able to submit
a new liquidity-providing order type, a Retail Liquidity Provider
(``RLP'') order, that would only be eligible to execute against an
incoming ``Retail Order'' from a RMO, generally at the midpoint price
of the National Best Bid and National Best Offer (``Midpoint Price'').

A. New Definitions

    In connection with the Retail Program, the Exchange proposes three
new defined terms. First, under existing Exchange Rule 11.190 (Orders
and Modifiers), the term ``Retail Order'' would be defined as an agency
order, or a riskless principal order that satisfies the criteria of
FINRA Rule 5320.03, submitted by a Retail Member Organization, that is
designated with a ``Retail Order'' modifier and reflects trading
interest of a natural person, with no change made to the terms of the
underlying order of the natural person with respect to price (except in
the case of a market order that is changed to a marketable limit order)
or side of market, and that does not originate from a trading algorithm
or any other computerized methodology. Retail Orders could either be
Discretionary Peg or Midpoint Peg orders \4\ with a time-in-force of
Immediate-or-Cancel (``IOC'') or Fill-or-Kill (``FOK''). Second, IEX
proposes to amend Rule 11.190 to add the defined term ``Retail
Liquidity Provider order,'' which would be defined as a Discretionary
Peg order that is only eligible to execute against incoming Retail
Orders through the execution process described in proposed new IEX Rule
11.232(e). Finally, under proposed IEX Rule 11.232(a), IEX would define
the term ``Retail Member Organization'' as an IEX Member (or division
thereof) that has been approved by the Exchange to submit Retail
Orders.
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    \4\ Both Discretionary Peg and Midpoint Peg orders are non-
displayed trading interest on the Exchange. See IEX Rule
11.190(a)(9) and (10).
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B. Retail Member Organizations

    Under proposed Rule 11.232(b), any IEX Member (or a division
thereof) could qualify as an RMO if it conducts a retail business or
handles retail orders on behalf of another broker-dealer. An IEX Member
would be required to submit: (1) An application form; (2) supporting
documentation sufficient to demonstrate the retail nature and
characteristics of the applicant's order flow, such as sample marketing
literature, website screenshots, or other publicly disclosed material
describing the Member's retail order flow; and (3) an attestation, in a
form prescribed by the Exchange, that substantially all orders
submitted as Retail Orders would meet the qualifications under the
Retail Program.
    If approved as a RMO, the IEX Member would be required to have
written policies and procedures reasonably designed to assure that it
will only designate orders as Retail Orders if all requirements of a
Retail Order are met. Such written policies and procedures must require
the IEX Member to: (i) Exercise due diligence before entering a Retail
Order to assure

that entry as a Retail Order is in compliance with the requirements the
Retail Program; and (ii) monitor whether orders entered as Retail
Orders meet the applicable requirements under the Retail Program. If a
RMO does not itself conduct a retail business--but routes Retail Orders
on behalf of another broker-dealer--the RMO's supervisory procedures
must be reasonably designed to assure that the orders it receives from
such other broker-dealer that are designated as Retail Orders meet the
definition of a Retail Order. Additionally, the RMO must: (i) obtain an
annual written representation, in a form acceptable to the Exchange,
from each other broker-dealer that sends the RMO orders to be
designated as Retail Orders that entry of such orders as Retail Orders
will be in compliance with the requirements of the Retail Program; and
(ii) monitor whether Retail Order flow routed on behalf of such other
broker-dealers meets the applicable requirements of the Retail
Program.\5\ The Exchange also proposes rules setting forth procedures
for addressing a RMO's failure to comply with the Retail Program
requirements.\6\
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    \5\ The Exchange represents that FINRA, on behalf of the
Exchange, will review an RMO's compliance with these requirements
through an exam-based review of the RMO's internal controls. See
id., at 32239 n.17.
    \6\ New IEX Rules 11.232(b), (c), and (d) would set forth the
procedures governing the Exchange's review of an RMO application,
how the Exchange would reject an RMO application or disqualify a
Member that has already been approved as an RMO, and how a Member
could appeal a rejected RMO application or disqualification. See
Notice, supra note 3, at 32239-40.
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C. Priority and Allocation

    Proposed IEX Rule 11.232(e) sets forth the rules governing priority
and order allocation for the Retail Program. Specifically, Retail
Liquidity Provider orders in the same security would be ranked and
allocated according first to price and then to time of entry into the
IEX System. Upon entry into the IEX System, a Retail Order would seek
to execute against resting contra-side orders in price/time priority in
accordance with current IEX Rule 11.230 (Order Execution) and also
subject to the following provisions set forth in new IEX Rule
11.232(e):
     A Retail Order to buy (sell) will execute upon entry
against sell (buy) orders resting on the IEX Order Book in the
following order:
    1. displayed sell (buy) orders at the National Best Offer (National
Best Bid) during a locked or crossed market;
    2. non-displayed orders priced to trade at the Midpoint Price;
followed by
    3. Retail Liquidity Provider orders priced to trade at the Midpoint
Price.\7\
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    \7\ In the Notice, the Exchange provides examples illustrating
how these priority rules would operate. See id., at 32240.

Thus, RLP orders would have last priority when interacting with an
incoming Retail Order. As noted earlier, Retail Orders are either IOC
or FOK. Therefore, any Retail Orders not executed pursuant to the above
execution priority would be cancelled.

D. Conforming Changes

    Finally, the Exchange proposed to delete current IEX Rule
11.340(d)(4), which, in relevant part, states that the Exchange does
not operate a retail liquidity program.\8\
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    \8\ IEX Rule 11.340 governs the Tick Size Pilot Plan and
currently is not in effect due to the expiration of the Tick Size
Pilot.
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E. Comparison to Other Retail Programs

    In the Notice,\9\ the Exchange discusses how its Retail Program
compares to, among others, the retail programs of the New York Stock
Exchange (``NYSE'') and Nasdaq BX (``BX''), which the Commission
recently approved to become permanent during the pilot periods for each
respective program.\10\ IEX highlights the substantive differences
between several features of its program and the programs of other
exchanges.\11\ Among other things, for example, the Exchange explains
that the price improvement offered by its Retail Program would be a
Midpoint Price execution instead of a minimum $0.001 above the NBBO or
exchange best bid and offer. IEX also notes that any of its Members
would be eligible to submit an RLP order, whereas use of a similar
order type on NYSE is restricted, and that RLP orders on IEX would not
have higher execution priority over non-RLP orders.\12\
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    \9\ See id., at 32240-42.
    \10\ See Securities Exchange Act Release Nos. 85160 (February
15, 2019), 84 FR 5754 (February 22, 2019) (SR-NYSE-2018-28)
(approving NYSE Retail Liquidity Program on a permanent basis);
86194 (June 25, 2019), 84 FR 31385 (July 1, 2019) (SR-BX-2019-011)
(approving Nasdaq BX Retail Price Improvement Program on a permanent
basis). The Commission notes that at the time that this proposed
rule change was filed, the Nasdaq BX Retail Price Improvement
Program had not yet been approved on a permanent basis.
    \11\ See Notice, supra note 3, at 32240-42.
    \12\ See id., at 32240.
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III. Discussion and Commission Findings

    After careful review, the Commission finds that the Exchange's
proposal to establish the Retail Program is consistent with the
requirements of the Exchange Act and the rules and regulations
thereunder applicable to a national securities exchange.\13\ In
particular, the Commission finds that the proposed rule change is
consistent with Sections 6(b)(5) \14\ and 6(b)(8) \15\ of the Exchange
Act. Section 6(b)(5) of the Exchange Act requires that the rules of a
national securities exchange be designed, among other things, to
promote just and equitable principles of trade, to remove impediments
to and perfect the mechanism of a free and open market and a national
market system and, in general, to protect investors and the public
interest, and not be designed to permit unfair discrimination between
customers, issuers, brokers, or dealers. Section 6(b)(8) of the
Exchange Act requires that the rules of a national securities exchange
not impose any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Exchange Act.
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    \13\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \14\ 15 U.S.C. 78f(b)(5).
    \15\ 15 U.S.C. 78f(b)(8).
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    Under IEX's proposed Retail Program, IEX will operate a process by
which Members could qualify to become RMOs, thereby permissioning them
to submit certain liquidity-taking Retail Orders to IEX for execution,
generally, at the Midpoint Price. Any Member could submit liquidity-
providing RLP orders, which will be Discretionary Peg orders that are
only eligible to execute against the designated Retail Orders. Retail
Orders would be able to execute against the proposed RLP orders as well
as certain other orders on the Exchange's order book as specified in
proposed IEX Rule 1.232(e).
    The Commission notes that the Exchange's proposed Retail Program is
substantively different in several respects than the retail liquidity
programs operated by certain other national securities exchanges and,
thus, does not present all of the same issues raised by those programs.
The Commission notes that IEX provided a fulsome discussion of the
distinctions between its proposed Retail Program and the programs
operated by other exchanges. In particular, IEX described its proposed
Retail Program as ``leverage[ing] IEX's existing market structure'' and
discussed how IEX will: (1) Allow executions at Midpoint Prices instead
of any subpenny price; (2) not disseminate when an RLP order is on the
book, which could serve as an incentive to only route Retail Orders to
IEX when the presence of an RLP order is disseminated; (3) have no
impact on order book priority and give RLP orders

lower priority than other liquidity providing orders priced to trade at
the midpoint; and (4) operate within existing tick size trading
increments.\16\
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    \16\ See Notice, supra note 3, at 32241.
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    The proposal includes qualification and application rules for RMOs,
an appeal process for disapproved RMOs, requirements for RMOs to
include written policies and procedures to ensure that Retail Orders
are bona fide, required annual attestations from RMOs with respect to
Retail Orders, and a process for disqualification of RMOs with appeal
procedures. The Commission believes that the proposal with respect to
RMOs is consistent with the Exchange Act as it is reasonably designed
to ensure that RMOs submit only bona fide Retail Orders to the program
and, thus, helps ensure that the program is operated in the interests
of investor protection and consistent with the public interest. All IEX
Members would have an opportunity to become a RMO if desired, and the
Commission believes that the proposal sets forth a fair and reasonable
process to become and remain a RMO.
    The Exchange asserts that while the Retail Program would
differentiate among its Members, it believes that such differentiation
is not unfairly discriminatory because the Retail Program is designed
to promote a competitive process for retail executions on a registered
exchange while providing retail investors with the potential to receive
meaningful price improvement.\17\ The Exchange notes that, under the
respective retail programs of NYSE, BX, and others, there is existing
precedent for differentiation and limited segmentation of incoming
retail order flow and liquidity providing order flow that seeks to
execute against such incoming retail flow.\18\ IEX also asserts that,
as with the NYSE and BX programs, its Retail Program is designed to
provide an additional competitive alternative for retail orders by
offering certain incentives for broker-dealers to bring more of their
retail order flow onto a public exchange.\19\
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    \17\ See Notice, supra note 3, at 32242.
    \18\ See supra notes 9-12 and accompanying text.
    \19\ See Notice, supra note 3, at 32242.
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    The Commission believes that proposals involving segmentation of
order flow on a national securities exchange--even if such order flow
is retail or offers price improvement to retail orders- must be
carefully evaluated. In this instance, the Commission believes that the
Retail Program is reasonably designed, within the Exchange's existing
market structure, to attract retail order flow to a registered national
securities exchange, while offering the opportunity for retail
investors to potentially benefit from midpoint executions.\20\
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    \20\ The Commission has previously recognized that market
participants and some exchanges distinguish between individual
retail investors, whose orders are considered desirable by liquidity
providers because such retail investors are presumed on average to
be less informed about short-term price movements, and professional
traders, whose orders are presumed on average to be more informed
about short term price movements. The Commission has also recognized
that, because of this distinction, some liquidity providers may be
more inclined to offer price improvement to retail orders. See
Securities Exchange Act Release Nos. 73702 (November 28, 2014), 79
FR 72049 (December 4, 2014) (SR-BX-2014-048) (approving the BX
Retail Price Improvement Program on a pilot basis).
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    The Commission also believes that providing RLP orders lower
execution priority against Retail orders than other orders priced to
trade at the Midpoint Price is not designed to permit unfair
discrimination or impose an unnecessary or inappropriate burden on
competition. The Commission notes that the RLP order type would be
available to all IEX Members, and Members seeking to interact with
retail order flow on IEX also would be able to submit non-RLP orders
for Midpoint Price executions, which would be given higher priority
than RLP orders. Given the restrictions on RLP orders (i.e., they would
only interact with incoming Retail Orders), it is appropriate that RLP
orders would not impact order book priority and not enjoy a competitive
advantage, in the form of enhanced priority or execution opportunities,
over other resting orders, but rather would yield priority to them.
Further, IEX will allow any Member to submit RLP orders, which provides
fair and broad access to this new order type and should promote
competition by removing barriers to its use on the Exchange.
    Further, the Exchange explains that requiring a Retail Order to be
either a Discretionary Peg order or Midpoint Peg order with a time-in-
force of IOC or FOK is designed to maximize the opportunity for such
orders to be executed on IEX with Midpoint Price improvement.\21\ This
approach provides for potentially meaningful price improvement while
utilizing order types that operate within the current minimum trading
increment rules. To the extent it is successful, the proposal could
facilitate and promote competition between exchanges and the over-the-
counter market and potentially bring more retail order flow to a public
exchange. As such, the proposal is designed to remove impediments to
and perfect the mechanism of a free and open market and a national
market system, and further the investor protection and public interest
objectives of Section 6(b) of the Act.
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    \21\ See Notice, supra note 3, at 32243.
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    Accordingly, the Commission finds the design of the Retail Program
within the current market structure to be consistent with the Act,
including the requirements of Section 6(b)(5) and Section 6(b)(8) of
the Act.

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Exchange Act,\22\ that the proposed rule change (SR-IEX-2019-05), be,
and it hereby is, approved.
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    \22\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\23\
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    \23\ 17 CFR 200.30-3(a)(12).
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Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2019-17490 Filed 8-14-19; 8:45 am]
 BILLING CODE 8011-01-P