[Federal Register Volume 77, Number 174 (Friday, September 7, 2012)]
[Notices]
[Pages 55251-55254]
[FR Doc No: 2012-22016]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67766; File No. SR-EDGX-2012-37]

Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change Relating to
Edge Routed Liquidity Report

August 31, 2012.
    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 August 21, 2012, EDGX Exchange, Inc. (the ``Exchange'' or
``EDGX'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which items have been prepared by the 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

    The Exchange proposes to offer a new Exchange market data product,
Edge Routed Liquidity Report (``Edge Routed Liquidity Report'' or the
``Service'') to Members \3\ and non-Members of the Exchange
(collectively referred to as ``Subscribers''). The Exchange proposes to
add a description of the Edge Routed Liquidity Report to new Rule 13.9.
The text of the proposed rule change is attached as Exhibit 5 and is
available on the Exchange's Web site at www.directedge.com, at the
Exchange's principal office, and at the Public Reference Room of the
Commission.
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    \3\ A Member is any registered broker or dealer that has been
admitted to membership in the Exchange.
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II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the 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 these statements may be examined at the places specified in
Item IV below. The self-regulatory organization has prepared summaries,
set forth in Sections A, B and C below, of the most significant aspects
of such statements.

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

1. Purpose
    The purpose of the proposed rule change is to begin offering Edge
Routed Liquidity Report, a data feed that contains historical order
information for orders routed to away destinations by the Exchange.
Edge Routed Liquidity Report will be a data feed product that provides
routed order information to Subscribers on the morning of the following
trading day (T + 1), including: Limit price, routed quantity, symbol,
side (bid/offer), time of routing, and the National Best Bid and Offer
(NBBO) at the time of routing.
    The Exchange will make Edge Routed Liquidity Report available to
all Subscribers via subscription through secure Internet connections.
Edge Routed Liquidity Report will be offered as either a standard
report (the ``Standard Report'') or a premium report (the ``Premium
Report''). Both the Standard Report and the Premium Report will provide
Subscribers with a view of all marketable orders that are routed to
away destinations by the Exchange. However, the Premium Report will
also identify the routing destination as either directed to a
destination that is not an exchange (``Non-Exchange Destination'') or
directed to another exchange. For orders that are routed to a Non-
Exchange Destination, the Premium Report will indicate the nature of
any liquidity the originating routing strategy seeks.
    Purchasers of Edge Routed Liquidity Report will be able to elect to
obtain data on a rolling thirty (30) day subscription or a calendar
month request for as many months as desired.
    The Exchange is proposing to charge Subscribers a fee in the amount
of $500.00/month for a rolling thirty (30) day Standard Report and
$500.00/month for a calendar month request. With respect to the Premium
Report, the Exchange is proposing to charge Subscribers a fee in the
amount of $1,500.00/month for a rolling thirty (30) day Premium Report
and $1,500.00/month for a calendar month request.

Edge Routed Liquidity Report will be provided to Subscribers for
internal use only, and thus, no redistribution will be permitted. Edge
Routed Liquidity Report can be used by market participants to improve
their trading and order routing strategies by being able to discern
missed trading opportunities if a Member had been present on the EDGX
book.
    Edge Routed Liquidity Report will provide an indication of the
quantity/quality of the order flow that Members of the Exchange could
have interacted with if they had additional posted liquidity on the
Exchange's book. The purpose of Edge Routed Liquidity Report is to
allow Subscribers to identify missed opportunities so that they can
make the necessary trading system changes to better interact with
missed liquidity. By making the Edge Routed Liquidity Report data
available, the Exchange enhances market transparency and fosters
competition among orders and markets.
    Historical data can be used for a variety of purposes, such as to
support financial market research and analysis as well as back-testing
of new trading strategies to gauge effectiveness. The Exchange notes
that various historical data products are offered by the Exchange and
other market centers as discussed below.\4\
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    \4\ See Securities Exchange Act Release No. 61885 (April 9,
2010), 75 FR 20018 (April 16, 2010) (SR-BATS-2010-002) (adopting
BATS market data products, including BATS Historical Data Products);
see also, NYSE Technologies, Market Data, www.nyxdata.com (providing
information regarding historical data products offered by the New
York Stock Exchange (``NYSE''); see also, NASDAQ Rules 7022 and 7023
(establishing fees for Historical Research and Administrative
Reports and NASDAQ Depth-of-Book Data); see also, Securities
Exchange Act Release No. 61416 (January 25, 2010), 75 FR 5821
(February 4, 2010) (SR-NASDAQ-2010-010) (relating to NASDAQ rule
governing Historical ModelView product); see also, Securities
Exchange Act Release No. 66403 (February 15, 2012), 77 FR 10593
(February 22, 2012) (SR-EDGA-2012-05) (adopting EdgeBook Cloud
service); see also, Securities Exchange Act Release No. 66402
(February 15, 2012), 77 FR 10595 (February 22, 2012) (SR-EDGX-2012-
05) (adopting EdgeBook Cloud service).
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    The Exchange intends to implement the proposed rule change on or
about September 4, 2012 and will announce its availability via an
information circular to be posted on the Exchange's Web site.
2. Statutory Basis
    The proposed rule change is consistent with the requirements of the
Act \5\ and the rules and regulations thereunder that are applicable to
a national securities exchange. The bases under the Act for the
proposed rule change are: (1) The requirement under Section 6(b)(4) \6\
that an exchange have rules that provide for the equitable allocation
of reasonable dues, fees and other charges among its members and other
persons using its facilities; and (2) the requirement under Section
6(b)(5) \7\ that the rules of an exchange be designed to promote just
and equitable principles of trade and not to permit unfair
discrimination between customers, issuers, brokers or dealers.
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    \5\ 15 U.S.C. 78f.
    \6\ 15 U.S.C. 78f(b)(4).
    \7\ 15 U.S.C. 78f(b)(5).
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    Indeed, the Exchange believes that the proposed change is
consistent with Section 6(b)(4) of the Act \8\ because it provides an
equitable allocation of reasonable dues, fees and other charges among
the Subscribers of the Exchange data. Edge Routed Liquidity Report is
optional and fees charged for the Service will be the same for both
Member and non-Member Subscribers.
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    \8\ 15 U.S.C. 78f(b)(4).
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    Furthermore, as the Service will be provided in multiple packages,
the Exchange intends to allow the purchase of such access in the manner
that best meets the needs of, and is most cost efficient for, each
respective Subscriber. The fees for Edge Routed Liquidity Report are
uniform except with respect to reasonable distinctions with respect to
Standard Report and the Premium Report. The Exchange proposes charging
more for the Premium Report than for the Standard Report because of the
additional features provided on the Premium Report, as described above.
The fees reflect the differing offerings that a Subscriber may choose
and are reasonable in light of the benefits of market transparency and
additional information to aid Subscribers in developing or modifying
their trading strategies.
    The revenue generated by Edge Routed Liquidity Report will pay for
the development, marketing, technical infrastructure and operating
costs of the Service, an important tool for market participants to use
for purposes of analysis, research and testing. Profits generated above
these costs will help offset the costs that the Exchange incurs in
operating and regulating a highly efficient and reliable platform for
the trading of U.S. equities. This increased revenue stream will allow
the Exchange to offer an innovative Service at a reasonable rate,
consistent with other self-regulatory organizations (``SROs'') who
provide similar types of historical market data products.\9\
Furthermore, the fees are fair and reasonable because competition
provides an effective constraint on the market data fees that the
Exchange has the ability and incentive to charge for its market data
products.\10\
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    \9\ See Securities Exchange Act Release No. 61885 (April 9,
2010), 75 FR 20018 (April 16, 2010) (SR-BATS-2010-002) (adopting
BATS market data products, including BATS Historical Data Products);
see also, NYSE Technologies, Market Data, www.nyxdata.com (providing
information regarding historical data products offered by the NYSE;
see also, NASDAQ Rules 7022 and 7023 (establishing fees for
Historical Research and Administrative Reports and NASDAQ Depth-of-
Book Data); see also, Securities Exchange Act Release No. 61416
(January 25, 2010), 75 FR 5821 (February 4, 2010) (SR-NASDAQ-2010-
010) (relating to NASDAQ rule governing Historical ModelView
product); see also, Securities Exchange Act Release No. 66403
(February 15, 2012), 77 FR 10593 (February 22, 2012) (SR-EDGA-2012-
05) (adopting EdgeBook Cloud service); see also, Securities Exchange
Act Release No. 66402 (February 15, 2012), 77 FR 10595 (February 22,
2012) (SR-EDGX-2012-05) (adopting EdgeBook Cloud service).
    \10\ Id.
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    The Exchange believes that the proposed rule change is also
consistent with the objectives of Section 6(b)(5) of the Act,\11\ which
requires, among other things, that the Exchange's rules are not
designed to unfairly discriminate between customers, issuers, brokers
or dealers and are designed to prevent fraudulent and manipulative acts
and practices, to promote just and equitable principles of trade, to
foster cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general, to protect investors and the public interest.
The Exchange believes that this proposal is in keeping with those
principles by promoting increased transparency through the
dissemination of an additional market data product and by announcing
its availability via information circular. In addition, the Exchange is
making a voluntary decision to make this Service available and through
the dissemination of such market data, the Exchange will provide market
participants with the opportunity to obtain additional data in
furtherance of their investment decisions. Purchase of the Service is
not a prerequisite for participation on the Exchange, nor is membership
to the Exchange a prerequisite to purchase of the Service. Only those
Subscribers that deem this market data product to be of sufficient
overall value and usefulness will purchase it. Moreover, the fees will
apply uniformly to all Subscribers of the Standard Report and Premium
Report,

respectively, irrespective of whether the Subscriber is a Member of the
Exchange.
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    \11\ 15 U.S.C. 78f(b)(5).
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    The Exchange is not required by the Act in the first instance to
make the Service available. The Exchange chooses to make the Service
available as proposed in order to improve market quality, to attract
order flow, and to increase market transparency. Once this filing
becomes effective, the Exchange will be required to continue making the
Service available until such time as the Exchange changes its rule.
    In adopting Regulation NMS, the Commission granted SROs and broker-
dealers (``BDs'') increased authority and flexibility to offer new and
unique market data services to the public. The Commission believed this
authority would expand the amount of data available to market
participants, and also spur innovation and competition for the
provision of market data. Edge Routed Liquidity Report appears to be
precisely the sort of market data service that the Commission
envisioned when it adopted Regulation NMS.\12\ The Service will offer
routed order-specific data in a form not previously available to market
data consumers, yet the Service will act in a manner functionally
similar to market data products offered by the Exchange and other
market centers.\13\ The Service offers a new, alternative, innovative,
useful and cost-effective market data product that is consistent with
existing historical type market data products. It will allow market
participants to purchase useful historical data from the Exchange while
at the same time enabling the Exchange to better cover its
infrastructure costs and to improve its market technology and services.
Finally, Edge Routed Liquidity Report will better enable market
participants to conduct trading/investment analyses and discern useful
market data concerning routed order flow to better meet their needs.
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    \12\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496 (June 29, 2005) (``[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.'').
    \13\ See Securities Exchange Act Release No. 61885 (April 9,
2010), 75 FR 20018 (April 16, 2010) (SR-BATS-2010-002) (adopting
BATS market data products, including BATS Historical Data Products);
see also, NYSE Technologies, Market Data, www.nyxdata.com (providing
information regarding historical data products offered by the NYSE;
see also, NASDAQ Rules 7022 and 7023 (establishing fees for
Historical Research and Administrative Reports and NASDAQ Depth-of-
Book Data); see also, Securities Exchange Act Release No. 61416
(January 25, 2010), 75 FR 5821 (February 4, 2010) (SR-NASDAQ-2010-
010) (relating to NASDAQ rule governing Historical ModelView
product); see also, Securities Exchange Act Release No. 66403
(February 15, 2012), 77 FR 10593 (February 22, 2012) (SR-EDGA-2012-
05) (adopting EdgeBook Cloud service); see also, Securities Exchange
Act Release No. 66402 (February 15, 2012), 77 FR 10595 (February 22,
2012) (SR-EDGX-2012-05) (adopting EdgeBook Cloud service).
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    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 BDs at
all, it follows that the price at which such data is sold should be set
by the market as well.
    The recent decision of the United States Court of Appeals for the
District of Columbia Circuit in NetCoalition v. SEC, 615 F.3d 525 (D.C.
Cir. 2010), 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.' \14\ The court agreed with the
Commission's conclusion that ``Congress intended that `competitive
forces should dictate the services and practices that constitute the
U.S. national market system for trading equity securities.' '' \15\
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    \14\ NetCoalition, at 535 (quoting H.R. Rep. No. 94-229, at 92
(1975), as reprinted in 1975 U.S.C.C.A.N. 321, 323).
    \15\ Id.
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    The Court in NetCoalition, while upholding the Commission's
conclusion that competitive forces may be relied upon to establish the
fairness of prices, nevertheless concluded that the record in that case
did not adequately support the Commission's conclusions as to the
competitive nature of the market for NYSEArca's data product at issue
in that case. The Exchange believes that there is substantial evidence
of competition in the marketplace for data that was not in the record
in the NetCoalition case, and that the Commission is entitled to rely
upon such evidence in concluding that the fees established in this
filing are the product of competition, and therefore in accordance with
the relevant statutory standards.\16\ Moreover, the Exchange further
notes that the product at issue in this filing, a historical data
product that is functionally similar to other historical data products
whose fees have been reviewed and filed with the Commission,\17\ is
quite different from the NYSEArca depth-of-book data product at issue
in NetCoalition. Accordingly, any findings of the court with respect to
that product may not be relevant to the product at issue in this
filing.
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    \16\ It should also be noted that Section 916 of the Dodd-Frank
Wall Street Reform and Consumer Protection Act of 2010 (``Dodd-Frank
Act'') has amended paragraph (A) of Section 19(b)(3) of the Act, 15
U.S.C. 78s(b)(3), to make it clear that all exchange fees, including
fees for market data, may be filed by exchanges on an immediately
effective basis. Although this change in the law does not alter the
Commission's authority to evaluate and ultimately disapprove
exchange rules if it concludes that they are not consistent with the
Act, it unambiguously reflects a conclusion that market data fee
changes do not require prior Commission review before taking effect,
and that a proceeding with regard to a particular fee change is
required only if the Commission determines that it is necessary or
appropriate to suspend the fee and institute such a proceeding.
    \17\ See Securities Exchange Act Release No. 61885 (April 9,
2010), 75 FR 20018 (April 16, 2010) (SR-BATS-2010-002) (adopting
BATS market data products, including BATS Historical Data Products);
see also, NYSE Technologies, Market Data, www.nyxdata.com (providing
information regarding historical data products offered by the NYSE;
see also, NASDAQ Rules 7022 and 7023 (establishing fees for
Historical Research and Administrative Reports and NASDAQ Depth-of-
Book Data); see also, Securities Exchange Act Release No. 61416
(January 25, 2010), 75 FR 5821 (February 4, 2010) (SR-NASDAQ-2010-
010) (relating to NASDAQ rule governing Historical ModelView
product); see also, Securities Exchange Act Release No. 66403
(February 15, 2012), 77 FR 10593 (February 22, 2012) (SR-EDGA-2012-
05) (adopting EdgeBook Cloud service); see also, Securities Exchange
Act Release No. 66402 (February 15, 2012), 77 FR 10595 (February 22,
2012) (SR-EDGX-2012-05) (adopting EdgeBook Cloud service).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act, as amended.
    There is significant competition for the provision of market data
to market participants, as well as competition for the orders that
generate that data. In introducing the proposed Service, the Exchange
would be providing an additional market data product to those already
offered by other market centers.\18\
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    \18\ Id.
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    The Service is purely optional and can be used by Subscribers who
see value in the format in which the Service presents historical data.
Given this, the Exchange does not believe that the Service will result
in 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 its Members or other interested
parties.

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

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A) of the Act \19\ and Rule 19b-
4(f)(6) thereunder.\20\
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    \19\ 15 U.S.C. 78s(b)(3)(A).
    \20\ 17 CFR 240.19b-4(f)(6).
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    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.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-EDGX-2012-37 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-EDGX-2012-37. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet 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, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available
for inspection and copying at the principal office of EDGX. 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-EDGX-2012-37 and should be
submitted on or before September 28, 2012.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\21\
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    \21\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-22016 Filed 9-6-12; 8:45 am]
BILLING CODE 8011-01-P


of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NYSEArca-2021-37 and should be submitted
on or before June 17, 2021.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\100\
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    \100\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-11172 Filed 5-26-21; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: July 1, 2009 (Volume 74, Number 125)]
[Rules and Regulations]
[Page 31354-31356]
[DOCID:fr01jy09-5]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 110

[Docket No. USCG-2009-0045]
RIN 1625-AA01

Anchorage Regulations; Port of New York

AGENCY: Coast Guard, DHS.

ACTION: Direct final rule; request for comments.

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SUMMARY: By this direct final rule, the Coast Guard is revising the
southern boundary of Anchorage Ground No. 20-F in Upper New York Bay.
This action is necessary so that the Anchorage Ground does not extend
into the Port Jersey Federal Channel that is being expanded as part of
the Port of New York/New Jersey Harbor Deepening Project. This action
is intended to increase the safety of life and property for the Port of
New York/New Jersey, improve the safety of anchored vessels, and
provide for the overall safe and efficient flow of commercial vessels
and commerce.

DATES: This rule is effective September 29, 2009, unless an adverse
comment, or notice of intent to submit an adverse comment, is either
submitted to our online docket via http://www.regulations.gov on or
before August 31, 2009 or reaches the Docket Management Facility by
that date. If an adverse comment, or notice of intent to submit an
adverse comment, is received by August 31, 2009, we will withdraw this
direct final rule and publish a timely notice of withdrawal in the
Federal Register.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-0045 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax:<PHONE_NUMBER>.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is<PHONE_NUMBER>.
    To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section below for instructions on
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, e-
mail or call Mr. Jeff Yunker, Waterways Management Division, telephone
718-354-4195, e-mail<EMAIL_ADDRESS>If you have questions on
viewing or submitting material to the docket, call Renee V. Wright,
Program Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting
comments and related materials. All comments received will be posted,
without change, to http://www.regulations.gov and will include any
personal information you have provided.
    Submitting comments:
    If you submit a comment, please include the docket number for this
rulemaking (USCG-2009-0045), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online, or by fax, mail or hand delivery, but please use only one of
these means. We recommend that you include your name and a mailing
address, an e-mail address, or a phone number in the body of your
document so that we can contact you if we have questions regarding your
submission.
    To submit your comment online, go to http://www.regulations.gov,
select the Advanced Docket Search option on the right side of the
screen, insert ``USCG-2009-0045'' in the Docket ID box, press Enter,
and then click on the balloon shape in the Actions column. If you
submit your comments by mail or hand delivery, submit them in an
unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit them by mail and would
like to know that they reached the Facility, please enclose a stamped,
self-addressed postcard or envelope. We will consider all comments and
material received during the comment period.
    Viewing comments and documents:
    To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov,
select the Advanced Docket Search option on the right side of the
screen, insert USCG-2009-0045 in the Docket ID box, press Enter, and
then click on the item in the Docket ID column. If you do not have
access to the internet, you may also view the docket online by visiting
the Docket Management Facility in Room W12-140 on the ground floor of
the Department of Transportation, West Building, 1200 New Jersey
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays. We have an agreement with the
Department of Transportation to use the Docket Management Facility.
    Privacy Act:
    Anyone can search the electronic form of comments received into any
of our dockets by the name of the individual submitting the comment (or
signing the comment, if submitted on behalf of an association,
business, labor union, etc.). You may review a Privacy Act notice
regarding our public dockets in the January 17, 2008 issue of the
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a
request for one to the docket using one of the methods specified under
ADDRESSES. In your request, explain why you believe a public meeting
would be beneficial. If we determine that one would aid this
rulemaking, we will hold one at a time

and place announced by a later notice in the Federal Register.

Regulatory Information

    We are publishing this direct final rule under 33 CFR 1.05-55
because we do not expect an adverse comment. If no adverse comment or
notice of intent to submit an adverse comment is received by August 31,
2009, this rule will become effective as stated in the DATES section.
In that case, approximately 30 days before the effective date, we will
publish a document in the Federal Register stating that no adverse
comment was received and confirming that this rule will become
effective as scheduled. However, if we receive an adverse comment or
notice of intent to submit an adverse comment, we will publish a
document in the Federal Register announcing the withdrawal of all or
part of this direct final rule. If an adverse comment applies only to
part of this rule (e.g., to an amendment, a paragraph, or a section)
and it is possible to remove that part without defeating the purpose of
this rule, we may adopt, as final, those parts of this rule on which no
adverse comment was received. We will withdraw the part of this rule
that was the subject of an adverse comment. If we decide to proceed
with a rulemaking following receipt of an adverse comment, we will
publish a separate notice of proposed rulemaking (NPRM) and provide a
new opportunity for comment.
    A comment is considered ``adverse'' if the comment explains why
this rule or a part of this rule would be inappropriate, including a
challenge to its underlying premise or approach, or would be
ineffective or unacceptable without a change.

Background

    This rule is necessary to ensure the safety of navigation for
vessels operating in the area as well as for vessels involved with the
Port Jersey Federal Channel deepening project. The current boundary of
Anchorage Ground No. 20-F overlaps the expanded boundary of Port Jersey
Federal Channel that is being deepened as part of the U.S. Army Corps
of Engineers Port of New York/New Jersey harbor deepening project.
Without the changes implemented by this rule, vessels could mistakenly
anchor within the expanded Port Jersey Federal Channel while other
vessels are dredging the channel in preparation for larger vessels with
a deeper draft to moor at facilities adjacent to Port Jersey Federal
Channel. Revising the southern boundary of Anchorage Ground No. 20-F to
where it no longer interferes with the Port Jersey Federal Channel will
remove the current authorization for vessels to mistakenly anchor
within a Federal Channel, and therefore remove this hazardous condition
for vessels navigating in this area.
    In addition to revising the southern boundary of the anchorage
zone, the two geographic coordinates that make up the northern boundary
are being updated to datum NAD 83. The physical location of these
points are not moving, however there are slight changes in the
coordinates that reflect the update in datum.

Discussion of the Rule

    This rule revises the southern boundary of Anchorage Ground No. 20-
F in Upper New York Bay by moving it northward, thus reducing the
overall size of the anchorage. This change to the boundary is necessary
because the adjacent Port Jersey Federal Channel is being expanded into
the current Anchorage Ground No. 20-F boundary as part of the Port of
New York/New Jersey harbor deepening project. The revised southern
boundary would be moved to the north by approximately 130 yards. This
rule further modifies the geographic coordinates of the two northern
points of the anchorage so as to conform with datum NAD 83. The
physical location of the two northern points do not change and there
will be no resulting change in these two points on the current
navigational charts, only the geographic position descriptions are
revised based on the updated reference datum.

Regulatory Analysis

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

Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, and does not
require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order.
    This determination is based on the fact that the expansion of the
Port Jersey Federal Channel has already been approved through the U.S.
Army Corps of Engineers permitting process. Due to the progress of this
channel expansion, the southern area of this Anchorage Ground is no
longer available for vessels to anchor within as vessels under contract
to the U.S. Army Corps of Engineers have been, and continue to dredge
in what is the south end of the current boundary of Anchorage Ground
No. 20-F.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
    This rule will affect the following entities, some of which may be
small entities: The owners and operators of vessels intending to anchor
within the southern portion of Anchorage Ground No. 20-F.
    This rule will not have a significant economic impact on a
substantial number of small entities for the following reasons: Vessels
will still be able anchor, or stem the tide, to the east of the two
charted commercial mooring buoys located within the northern portion of
Anchorage Ground No. 20-F. This revision is due to the Port of New
York/New Jersey harbor deepening project that includes the expansion of
the Port Jersey Federal Channel. This project has been well publicized
to the maritime community through the Local Notice to Mariners, Coast
Guard Homeport Web site at http://homeport.uscg.mil/newyork, monthly
project update meetings held by the U.S. Army Corps of Engineers, and
regularly scheduled Harbor Safety, Navigation and Operations Committee
meetings.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that
this rule will not have a significant economic impact on a substantial
number of small entities. Comments submitted in response to this
finding will be evaluated under the criteria in the ``Regulatory
Information'' section of this preamble.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding the rule so that they can better evaluate its
effects on them and participate in the rulemaking. If the rule will
affect your small business, organization, or governmental jurisdiction
and you have questions concerning its provisions or options or
compliance, please consult Mr. Jeff Yunker at the address listed under

ADDRESSES. The Coast Guard will not retaliate against small entities
that question or complain about this rule or any policy or action of
the Coast Guard.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).

Collection of Information

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

Federalism

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

Unfunded Mandates Reform Act

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

Taking of Private Property

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

Civil Justice Reform

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

Protection of Children

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

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination With Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.

Energy Effects

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

Technical Standards

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

Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
that this action is one of a category of actions which do not
individually or cumulatively have a significant effect on the human
environment. This rule is categorically excluded under section 2.B.2,
figure 2-1, paragraph (34)(f) of the Instruction. This rule involves
the reduction in the size of an existing anchorage area. Under figure
2-1, paragraph (34)(f) of the Instruction, an environmental analysis
checklist and a categorical exclusion determination are not required
for this rule.

List of Subjects in 33 CFR Part 110

    Anchorage grounds.

0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 110 as follows:

PART 110--ANCHORAGE REGULATIONS

0
1. The authority citation for part 110 continues to read as follows:

    Authority:  33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071;
33 CFR 1.05-1; Department of Homeland Security Delegation No.
0170.1.

0
2. Amend Sec.  110.155, by revising paragraph (d)(7) to read as
follows:

Sec.  110.155  Port of New York.

* * * * *
    (d) * * *
    (7) Anchorage No. 20-F. All waters bound by the following points:
40[deg]40'12.2'' N, 074[deg]03'39.9'' W; thence to 40[deg]39'53.9'' N,
074[deg]03'09.6'' W; thence to 40[deg]39'38.9'' N, 074[deg]03'19.5'' W;
thence to 40[deg]39'53.5'' N, 074[deg]03'53.7'' W; thence to the point
of origin (NAD 83).
    (i) See 33 CFR 110.155 (d)(9), (d)(16), and (l).
    (ii) [Reserved]
* * * * *

    Dated: May 28, 2009.
Dale G. Gabel,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. E9-15603 Filed 6-30-09; 8:45 am]

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