ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 140

EPA-R09-OW-2010-####; FRL-####-#]

RIN 2009-AA04

Marine Sanitation Devices (MSDs): Proposed Regulation to Establish a No

Discharge Zone (NDZ) for California State Marine Waters

AGENCY: Environmental Protection Agency (EPA)

ACTION:  Proposed Rule

 into such waters.  California State marine waters would be defined as
the territorial sea measured from the baseline, as  determined in
accordance with the Convention on the Territorial Sea and the Contiguous
Zone, and extending seaward a distance of three nautical miles, and
would also include all enclosed bays and estuaries subject to tidal
influences from the Oregon border to the Mexican border.  State marine
waters also extend three nautical miles from State islands, including
the Farallones and the Northern and Southern Channel Islands.  A map of
California State marine waters can be obtained or viewed at the EPA’s
website at “ HYPERLINK
"http://www.epa.gov/region09/water/no-discharge/index.html"
http://www.epa.gov/region09/water/no-discharge/index.html ”, or by
calling<PHONE_NUMBER>.   It should be noted that effective March 2009,
the National Oceanic and Atmospheric Administration (NOAA) established
prohibitions on the discharge of sewage from large vessels in waters
within the boundaries of the four National Marine Sanctuaries along the
California coast.  73 FR 70487.

DATES: Comments must be submitted to EPA on or before (insert date 60
days from date of publication).

ADDRESSES: Submit comments, identified by docket number
EPA–R09–OW–2010–####, by one of the following methods: 1.
Federal eRulemaking Portal:http://www.regulations.gov. Follow the
on-line instructions. 2. E-mail:  HYPERLINK<EMAIL_ADDRESS><EMAIL_ADDRESS>. 3. Mail or deliver: Allan Ota (WTR-8), U.S.
Environmental Protection Agency Region IX, 75 Hawthorne Street, San
Francisco, CA 94105–3901.

Instructions: All comments will be included in the public docket without
change and may be made available online at  HYPERLINK
"http://www.regulations.gov" http://www.regulations.gov , including any
personal information provided, unless the comment includes Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Information that you consider CBI or otherwise
protected should be clearly identified as such and should not be
submitted through http://www.regulations.gov or e-mail.
http://www.regulations.gov is an ‘‘anonymous access’’ system,
and EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send email directly to
EPA, your e-mail address will be automatically captured and included as
part of the public comment. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA may
not be able to consider your comment.

Docket: The index to the docket for this action is available
electronically at http://www.regulations.gov and in hard copy at EPA
Region IX, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed in the index, some information may be
publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available in either location
(e.g., CBI). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed in the
FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT Allan Ota, Wetlands Office, Water
Division, EPA Region 9, 75 Hawthorne Street (WTR-8), San Francisco, CA
94105, ( HYPERLINK<EMAIL_ADDRESS><EMAIL_ADDRESS>).

SUPPLEMENTARY INFORMATION:

I. Background of Clean Water Act Section 312

Clean Water Act Section 312, 33 U.S.C. § 1322, (hereafter referred to
as "Section 312"), regulates the discharge of sewage from vessels into
the navigable waters of the United States.  Pollutants most frequently
associated with sewage discharges include solids, nutrients, pathogens,
petroleum products, heavy metals, pesticides, pharmaceuticals, and other
potentially harmful compounds.  Sewage discharges also contaminate
shellfish beds, pollute drinking water supplies, harm fish and other
aquatic wildlife, and cause damage to coral reefs.

 These data include exposures to pathogens at beaches and other natural
swimming locations, but pathogen sources were not specifically
identified.

.

There are three types of MSDs:

•	Type I MSDs are flow-through treatment devices that commonly use
maceration and disinfection for the treatment of sewage.  Type I devices
may be used installed only on vessels less than or equal to 65 feet in
length.  The performance standard applied to Type I MSDs is to produce
an effluent with no more than 1000 fecal coliform count per 100 mL, with
no visible floating solids.

•	Type II MSDs are also flow-through treatment devices, which may
employ biological treatment and disinfection, although some Type II MSDs
use maceration and disinfection.  Type II MSDs may be used installed on
vessels of any length.  The performance standard applied to Type II MSDs
is to produce an effluent with no more than 200 fecal coliform per 100
mL, and no more than 150 mg total suspended solids per liter.

•	Type III MSDs are holding tanks, where sewage is stored until it can
be disposed of shore-side or at sea (beyond three milesnautical miles
from shore).  Type III MSDs may be used installed on vessels of any
length. [33 U.S.C. 1322(b and h), 40 CFR 140.3; 33 CFR Part 159]

Lastly, a State may apply under section 312(f)(4)(bB) for EPA to
establish, by regulation, a drinking water intake zone which prohibits
the discharge of sewage into that zone. [33 U.S.C. 1322(f), 40 CFR
140.4]

or greater and (2) large oceangoing vessels weighingof 300 gross
registered tonstonnage or greater with ability to hold two days or more
of sewage while in State marine waters.  holding capacity.  As discussed
in Sections V and VI of the preamble, the proposed NDZ will not alter
existing NDZs in California, all of which were enacted pursuant to
312(f)(3).  Those NDZs remain in effect for all vessels. These NDZs
cover a relatively small portion of California’s marine waters,
although as discussed below, certain discharges of sewage are also
prohibited under NOAA regulations for marine sanctuaries in California
waters.

II. Enforcement

The U.S. Coast Guard and the States are authorized to enforce the
requirements of Section 312. 33 U.S.C. 1322(k).  Persons who sell a
vessel having an installed toilet facility without an installed
certified MSD, or tamper with an installed certified MSD,s or sell a
non-certified MSDs, or who operate vessels subject to section 312
without operable MSDs, are subject to civil penalties of up to $5,000
and $2,000, respectively, for each violation.  33 U.S.C. 1322(j).   For
more information see 33 U.S.C. 1322(j) and the U.S. Coast Guard’s
description of MSD Requirementsregulations in 33 CFR Part 159.

 and older systems is not well documented.

 with respect to such vessels.

III. The State’s Application for this NDZ

The State of California declared the importance of protecting and
enhancing coastal water quality when it enacted legislation in 2003-2004
to limit pollution from large passenger vessels AB 121, AB 906, AB 2093,
and AB 2672 (available in the docket for today’s proposal).  The new
legislation required a number of actions to address and reduce sewage
and other pollution discharges from large vessels.  Specifically, AB
2672 required the State Water Resources Control Board (State Board) to
submit an application to the EPA seeking Federal prohibition of
discharges of sewage from large passenger vessels to State waters.
Similarly, the State enacted the California Clean Coast Act of 2005 (SB
771) to address and reduce sewage and other pollution discharges from
large oceangoing vessels with sufficient holding tank capacity.  SB 771
directed the State Board to submit an application to the EPA seeking
prohibition of sewage discharges from large oceangoing vessels with
“sufficient holding tank capacity” to contain sewage while the
oceangoing ship is within the marine waters of the State. In enacting
this legislation, the State found that California’s coastal waters
warrant a higher level of protection and determined that protection and
enhancement of coastal water quality requires a reduction in vessel
sewage discharges to the State’s coastal waters.  The legislation also
provided that “[i]t is not the Legislature’s intent to establish for
the marine waters of the state a no discharge zone for sewage from all
vessels, but only for a class of vessels.”

The information submitted by the State in its application for this NDZ
(available in the docket for today’s proposal) documents the
importance of California’s marine waters, the sensitivity of all of
California’s marine waters to sewage discharges, and the need for the
proposed NDZ to protect and enhance those waters.

IV. Who is affected by this rule?

.

V. EPA’s determination that the protection and enhancement of the
quality of California Coastal Waters requires this NDZ

Importance of California Waters: California’s coastal waters contain a
wide variety of unique, nationally important marine environments that
support rich biological communities and a wide range of recreational,
commercial, conservation, research, educational, and aesthetic values.
Coastal areas contain the greatest variety of habitats in California,
including tidepools, estuaries, embayments, headlands, sandy beaches,
mudflats, tidal wetlands, eelgrass beds, kelp forests, and deep ocean
floor.  California’s highly varied marine environments support high
levels of biological diversity and habitat for several dozen species
listed as endangered, threatened, or of concern under Federal or State
law, including 10 species of marine mammals, 4 species of anadromous
fish, and 9 species of sea birds.  The State has also established
essential habitat along much of the coast for nearly 100 species of
fish.

that adequate pump out facilities are reasonably available in the areas
of the NDZs.

.   NOAA stated that both treated and untreated vessel sewage are more
concentrated than domestic land-based sewage and may introduce disease
causing microorganisms into the marine environment and increase
nutrients that can lead to eutrophication and oxygen-depleted “dead
zones.”  As shown in Table 1, the four National Marine Sanctuaries
combined with the ten existing NDZs account for over 33 percent of State
marine waters (38 percent including proposed expansions at the Gulf of
the Farallones and Cordell Bank).  These protected areas account for
approximately 51 percent of the 1,624 milenautical mile California
coastline.     The proposed NDZ would apply to all State marine waters
and would increase protections by prohibiting treated sewage discharges
from the regulated classclasses of vessels in the remaining 67 percent
of State marine waters.  A map illustrating these areas can be obtained
or viewed at the EPA’s website at “ HYPERLINK
"http://www.epa.gov/region09/water/no-discharge/index.html"
http://www.epa.gov/region09/water/no-discharge/index.html ”, or by
calling<PHONE_NUMBER>.

Table 1. Status of California Marine Waters and Treated Sewage
Protection

California Marine Protected Area	Area of California Marine Waters
(milesnautical miles2)	Percent of California Marine Waters 	Sewage
Discharges Prohibited

National Marine Sanctuaries* 	1,726	33.05%	Yes

Existing NDZs**	29	0.5%	Yes

Proposed NDZ	5,222	100%	Proposed

*Office of NMS – NOAA, 2009

Waters along the California coastline (including islands) support
equally important economic, recreational, and aesthetic values. Many of
these values are heavily dependent upon clean water.  California’s
ocean economy is the largest in the nation and in 2000 alone, directly
provided approximately 408,000 jobs and contributed $42.9 billion to
gross State product. Seventy-seven percent of the State’s population
lives on or near the coast and annually, over 150 million visitor-days
are spent at California beaches. California ranks first in the nation as
a travel destination and its beaches are the leading destination for
tourists.  Coastal tourism and recreation generate more than $10 billion
per year in wages and more than $20 billion per year in gross State
product. In 2000, California’s commercial marine fishing industry
generated more than $400 million.

.

.

.  Information on impaired waters in California can be found at EPA’s
National Summary of Impaired Waters and TMDLs website at
“http://www.epa.gov/owow/tmdl/”, or by calling<PHONE_NUMBER>.

Of the 671 impairments, at least 162 are for pollutants commonly
associated with sewage, including nutrients, fecal coliform, and
pathogens.  Pathogens alone account for approximately 120 milesnautical
miles of impaired coast line in the State.

Table 2. California Marine Impaired Water Body Segments and TMDLs*

Impaired Water Body Segments	Total Waterbody/Pollutant
CombinationsImpairments	Waterbody/Pollutant CombinationsImpairments
Associated with Sewage	Approved TMDLsfor Waterbody/Pollutant
Combinations

222	592671	162	79

*2006 CWA 303(d) list

.

 to California ports and spent an average of one day in port per
arrival.  As illustrated in Table 3, at an estimated 24,360 gallons per
day and an average stay of one day, these vessels could potentially
generate 19.2 million gallons of treated sewage annually while in State
marine waters.  EPA has no way of verifying how much treated large
passenger vessel sewage is actually discharged in State marine waters;
this depends on actual numbers of passengers and crew and how much
treated sewage is discharged to treatment facilities on land and/or held
for discharge outside State waters.  However, it is likely that a
significant portion of this estimated 19.2 million gallons is in fact
currently being discharged in State waters. but thetThe intent of this
proposed rule is to prohibit all sewage generated from large passenger
vessels from entering State marine waters.

Table 3. California Large Passenger Vessel (LPV) Data for 2008

LPVs*	Passengers & Crew**	Port Calls*	Average Port Days**	Estimated
Sewage Generation

(g/day)***	Estimated Treated Vessel Sewage Discharged Generated while in
State Waters (g/year)***

48	2,900	788	1	24,360	19,195,680

* State’s January 27, 2009 Application Addendum

**State Lands Commission 2006 Vessel Survey Data

***EPA calculations

Treated sewage discharges from vessels generally contain higher
concentrations of pollutants than discharges of treated sewage from
land-based wastewater treatment plants and can cause or contribute to
water quality impairments and impacts to highly sensitive marine
habitats.  This can be attributed to lower dilution rates for large
passenger vessel sewage discharges, especially in cases where these
vessels employ vacuum flushing and conveyance to reduce water use.

.

.

.  Data for residual chlorine concentrations from Type II MSDs and
advanced wastewater treatment systems (AWTs) also exceeded levels that
would violate NWRQC standards if found in the ambient water.
Site-specific evaluations would be needed to determine whether these
vessel discharges would cause, have the potential to cause, or
contribute to non-attainment of water quality standards.

Table 4. Fecal Coliform Concentrations in Large Passenger Vessel
Effluent*

Number of Samples   	Federal Type II MSD Standard (MPN/100 ml)	Samples
>200 MPN/100 ml	Samples >100,000 MPN/100 ml	Samples >1,000,000 MPN/100
ml

92	<200	51	35	22

*2000 Alaska Cruise Ship Initiative, reported in 2008 EPA Cruise Ship
Discharge Assessment Report

Some large passenger vessels, especially those traveling to Alaska, have
installed AWTs that provide sewage treatment effectiveness greater than
Type I and II MSDs; however, the extent to which vessels operating in
California waters operate AWTs is unknown.  In 2006, 23 of 28 large
passenger vessels that operated in Alaskan waters had AWTs to treat both
sewage and graywater in order to meet the more stringent discharge
requirements in effect there.  Analyses of  sampling results from
2003-2005 indicate that AWTs are very effective in removing pathogens,
oxygen demanding substances, suspended solids, oil and grease, and
particulate metals.  AWTs can remove some of the dissolved metals, and
can remove most volatile and semi-volatile organics to levels below
detection limits but achieve moderate nutrient removals and do not
remove all contaminants. According to EPA study results of a
representative vessel, toxic pollutants such as ammonia, copper, nickel,
selenium, and zinc were still discharged at concentrations above their
toxicity criteria.  Again, site specific evaluations would be needed to
determine whether these vessel discharges would cause, have the
potential to cause, or contribute to non-attainment of water quality
standards

.

 intent of the proposed rule is to prohibit all of the estimated 1.2
million gallons per year of treated sewage from large oceangoing vessels
with adequate holding capacity from being discharged to State marine
waters.    Unlike for large passenger vessels, EPA does not have treated
sewage sampling data for large oceangoing vessels, but lacking any data
that would demonstrate otherwise, we assume large oceangoing vessels to
have similar pollutant levels per gallon as large passenger vessels.

Table 5. California Large Oceangoing Vessel (LOV) Data for 2008

LOVs*	Port Calls*	Port Calls by LOVs with Sufficient  Holding Tank
Capacity***	Crew**	Average Port Days**	Sewage

(g/day)***	Estimate of Potential Discharge of Sewage Generated while in
State Waters (g/year)***

1,753	9,620	3,367	21	2	176	1,185,184

* State’s January 27, 2009 Application Addendum

**State Lands Commission 2006 Vessel Survey Data

  ***EPA calculations

.  San Pedro Bay Ports in Los Angeles and Long Beach comprise the
highest volume port complex in the nation and project a 44 percent
increase in the volume of container throughput between 2010 and 2020.
Vessel container capacity will increase with larger ships, but port
calls are still projected to increase from nearly 3,600 in 2007 to as
many as 5,600 in 2020.  The Port of Oakland, the second highest volume
port in the State and fourth in the nation, hosted nearly 2,000
container ship calls in 2008 and is forecast to increase cargo
throughput approximately 5 percent each year between now and 2017.  This
increase in vessel traffic will result in increased generation of
treated vessel sewage that could potentially be discharged to State
marine waters.

.

The EPA and the State are aware that smaller vessels, including
recreational and smaller commercial vessels, also discharge sewage to
the State’s coastal water.  In deciding to request designation of an
NDZ applicable only to larger vessels as specified above, but applicable
to the entire California coast, the State legislature determined that
prohibiting discharge from the largest vessels would provide a
relatively efficient approach to reducing the vessel sewage waste stream
along the entire coast because these vessels generate a significant
amount of sewage compared to smaller vessels.  All vVessels vessels
equipped with installed toilets are currently prohibited from
discharging untreated sewage in any navigable waters within 3
milesnautical miles from shore.  Based on State estimates for 2006,
approximately 80 percent of the 841,000 recreational vessels in
California did not have Type I (flow through treatment device for
vessels 65 feet or less) or Type II MSDs and therefore would be
prohibited from discharging sewage to State marine waters.  The
remaining 20 percent (168,200) can discharge treated sewage from their
MSDs to State waters.  Applying the State’s data for small vessel
usage, two persons per vessel, an average of one full “recreation
day” (four 6-hour trips per year), and an 8.4 gallons of sewage per
person per day, the total amount of treated sewage potentially
discharged from recreational vessels to State marine waters in one year
could amount to approximately 2.8 million gallons, if all discharges
were within State waters.

.

VI. Effect on Current Vessel Sewage Controls

Today’s proposed rule does not alter existing vessel sewage discharge
prohibitions in California waters.  All existing NDZs in California
remain in effect for all vessels operating in those waters.

The proposed rule complements the discharge prohibitions recently passed
by NOAA for all four of California’s NMSs.  Those discharge
prohibitions were adopted pursuant to California’s application to NOAA
and became effective March 9, 2009 for the Gulf of the Farallones,
Monterey Bay, and Cordell Bank National Marine Sanctuaries (74 FR 12088
(Mar. 23, 2009)) and March 19, 2009 for the Channel Islands National
Marine Sanctuary (74 FR 12087 (Mar. 23, 2009)).  The new Sanctuary
management plans prohibit “discharges/deposits of treated and
untreated sewage from vessels 300 gross registered tonstonnage or
greater, except oceangoing ships without sufficient holding tank
capacity to hold sewage and graywater, respectively, while within the
Sanctuary.  Large passenger vessels are not provided an exception and,
therefore, are prohibited from discharging/depositing treated or
untreated sewage and graywater in the Sanctuary.”  See Gulf of the
Farallones National Marine Sanctuary Regulations; Monterey Bay National
Marine Sanctuary Regulations; and Cordell Bank National Marine Sanctuary
Regulations; Final Rule, 73 FR 70488 (Nov. 20, 2008) and Channel Islands
National Marine Sanctuary Regulations; Final Rule, 74 FR 3216 (Jan. 16,
2009).  Like the Sanctuary prohibitions, today’s proposed rule would
not require large oceangoing vessels without sufficient holding tank
capacity, as defined, to hold properly treated vessel sewage while
within State marine waters.

Other Existing Vessel Pollutant Controls: Following several confirmed
sewage discharge violations, the Cruise Lines International Association
(CLIA), representing the 25 major cruise lines serving North America,
adopted voluntary industry standards to address cruise industry waste
management.  Under the CLIA 2006 “Cruise Industry Waste Management
Practices and Procedures”, Association members have agreed to comply
with requirements to process all sewage through an MSD certified in
accordance with U.S. or international regulations prior to discharge.
For ships that do not have AWTs traveling regularly on itineraries
beyond territorial coastal waters, (CLIA) standards provide that
discharge will take place only when the ship is more than four
milesnautical miles from shore and when the ship is traveling at a speed
of not less than six knots (for vessels operating under sail, or a
combination of sail and motor propulsion, the speed shall not be less
than four knots).  For vessels whose itineraries are fully within U.S.
territorial waters, CLIA standards provide that discharge shall comply
fully with U.S. and individual state legislation and regulations.

To EPA’s knowledge, CLIA voluntary measures are not monitored or
reported and the degree of compliance with these voluntary measures is
unknown.  The State of California states that existing MSD requirements
and voluntary discharge limitations are not fully effective.  While the
number of vessels actually discharging partially or untreated sewage in
State marine waters can only be estimated, the Government Accountability
Office 2000 report to Congress and the State confirm discharges of
untreated sewage from large passenger vessels and other large oceangoing
vessels in State marine waters.

A majority of large oceangoing vessels operating in U.S. waters are
registered in foreign countries and subject to the “International
Convention for the Prevention of Pollution from Ships, 1973 as modified
by the Protocol of 1978 relating thereto” (“MARPOL”).  The
principal international instrument regulating discharges of sewage from
vessels is Annex IV to MARPOL. While the United States is not a Party to
MARPOL Annex IV, and thus is not bound by its provisions, a vessel
flying the flag of a country who is a Party to Annex IV remains subject
to the Annex’s requirements (as implemented and enforced by the flag
state) no matter where the vessel sails, including when the vessel is
operating in U.S. waters.

Annex IV applies to subject vessels engaged in international voyages of
400 gross tonnage and above, and to subject vessels of less than 400
gross tonnage which are certified to carry more than 15 persons
(passengers and crew).  The Annex contains, among other requirements,
limits on the discharge of sewage into the sea, and provisions for the
survey and certification of a vessel’s sewage treatment device.  In
particular, Annex IV prohibits the discharge of sewage into the sea
except when:

·	The vessel is discharging comminuted and disinfected sewage from an
approved system at a distance of more than three milesnautical miles
(nm) from the nearest land; or

·	The vessel is discharging sewage which is not comminuted or
disinfected (i.e., untreated sewage), at a distance of more than 12 nm
from the nearest land, provided that sewage that has been stored in
holding tanks, or sewage originating from spaces containing living
animals, is not discharged instantaneously but at a moderate rate when
the ship is en route and proceeding at a speed of at least four knots;
or

·	The vessel is using a type-approved sewage treatment plant (STP) that
has been certified to meet the applicable International Maritime
Organization’s recommendations and regulations, the test results are
laid down in the ship’s International Sewage Pollution Prevention
Certificate, and the effluent does not produce visible floating solids
or cause discoloration of the surrounding water.

VII. Conclusion

.

Table 6. California Vessel Sewage Contributions and NDZ Prohibitions

Sewage Source	Treated Vessel Sewage Generation in State Waters
(gallons/year)	Treated Vessel Sewage Prohibited by this proposed NDZ
(gallons/year)

Large Passenger Vessels	19.2 million	19.2 million

Large Oceangoing Vessels (with two days or more sewage holding capacity)

1.2 million

1.2 million

Combined Large Passenger and Oceangoing Vessels

20.4 million

20.4 million

Not addressed by this rule

Large Oceangoing Vessels without holding capacity

2.2 million

No Change

Recreational Vessels	2.8 million	No Change

Section 312(f)(4)(A) states “If the EPA Administrator determines upon
application by a State that the protection and enhancement of the
quality of specified waters within such State requires such a
prohibition, he shall, by regulation completely prohibit the discharge
from a vessel of any sewage (whether treated or not) into such
waters.”  This authority has been delegated to EPA Regional
Administrators.  On April 5, 2006, the California State Water Resources
Control Board, pursuant to State statutory mandates, requested that EPA
Region 9 establish an NDZ for all State waters along the California
coast that applies to large passenger vessels weighingof 300 gross
registered tonstonnage or greater, and large oceangoing vessels
weighingof 300 gross registered tonstonnage or greater that have two
days or more of sewage holding capacity.  For the reasons discussed
above, the EPA Region 9 Administrator finds that the protection and
enhancement of the quality of California’s marine waters requires the
requested NDZ.

VIII. Public Comment

	EPA invites public comment on all aspects of the proposed rule and will
accept all comments for the next 60 days.  Particular parts of the rule
may benefit from attention and comment from reviewers with expertise and
knowledge and opinions on the following subjects:  EPA’s conclusion
that the protection and enhancement of California State marine waters
require the requested prohibition on sewage discharges; EPA’s use of a
two-day sewage holding capacity, and the generation rate of 8.4 gallons
per day per person, as the basis for applying the proposed rule to Large
Oceangoing Vessels; EPA’s economic analysis for vessel retrofit and
operational costs; whether vessels subject to the proposed rule are
owned by companies that are not “small entities” under the
Regulatory Flexibility Act.

IX. Statutory and Executive Order Reviews

A.  Executive Order 12866:  Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, Oct. 4, 1993), this action is
a "significant regulatory action.” because it may raise novel legal or
policy issues.  Accordingly, EPA submitted this action to the Office of
Management and Budget (OMB) for review under EO 12866 and any changes
made in response to OMB recommendations have been documented in the
docket for this action.

In addition, EPA prepared an analysis, summarized in Table 7, of the
potential costs associated with this action to determine whether the
rule would have an annual effect on the economy of $100 million or more,
or adversely affect in a material way the economy or a sector of the
economy.

  All vVessels vessels that are equipped with MSDs and that navigate
throughout California State Waters are already subject to the EPA MSD
Standard at 40 CFR Part 140 and the U.S. Coast Guard MSD Standard at 33
CFR Part 159.  These standards prohibit the overboard discharge of
untreated vessel sewage in State waters and require that vessels with
on-boardinstalled toilets be equipped with U.S. Coast Guard certified
MSDs which either retain sewage or treat sewage to the applicable
standards.  There are three types of MSDs certified by the U.S. Coast
Guard, but only Type II and Type III MSDs apply to vessels affected by
this rule.

 Vessels subject to this rule include large passenger vessels weighingof
300 gross registered tonstonnage or greater and large oceangoing vessels
weighingof 300 gross registered tonstonnage or greater with two days or
more sewage holding capacity.  According to the State’s 2006 Vessel
Survey data, approximately 35 percent of large oceangoing vessels that
made port calls in California had holding capacity for at least two days
and, therefore, would be subject to the proposed rule.  Based on an
average two-day port call, EPA does not anticipate large oceangoing
vessels subject to the proposed rule would be required to employ
operational or structural changes, such as making special trips beyond
State marine waters to discharge, or increasing their holding capacity.
If vessels subject to the proposed rule were to stay in State marine
waters for a period of time beyond their sewage holding capacity
operators may choose to make additional trips to discharge beyond State
waters, and/or vessel owners may decide to retrofit their current
holding tank capacities in order to comply with the rule.

  Although the proposed rule would not require vessel owners to retrofit
any large oceangoing vessels, EPA evaluated the potential costs of
retrofitting holding tanks to increase capacity.  Based on an industry
estimate obtained by the EPA, the cost of holding tank retrofits could
be approximately $100,000 each but would vary from vessel to vessel.
EPA was unable to estimate an annual cost of retrofits for large
oceangoing vessels subject to the proposed rule.  Data was not available
for determining how many large oceangoing vessel owners with vessels
subject to the proposed rule might choose to implement retrofits.

According to responses to EPA’s 2004 cruise ship survey, large
passenger vessels operating in Alaska had an average of 62 hours of
sewage holding capacity greatly exceeding average port stays of one day
.  However, according to the State’s 2006 Vessel Survey 40 percent of
the large passenger vessels had less than one day holding capacity.  As
a result, some large passenger vessels may need to install sewage
holding capacity retrofits to avoid discharging sewage in State marine
waters.   Based on 2008 vessel calls, if 40 percent, or 48, large
passenger vessels chose to retrofit their vessels at a cost of $200,000
per vessel, the resulting cost would be approximately $3.8 million.

 2008 data, if all 788 port calls required special trips to discharge
sewage outside State marine waters, the total fuel cost would be
approximately $1.6 million per year.  This is likely a conservative
estimate considering there are volunteer vessel speed reduction programs
in place and under development along the California coast that provide
incentives to vessel operators to reduce speeds within 20 nautical miles
of the coast to reduce air pollutant emissions. Lower speeds could
reduce fuel consumption costs by as much as 30 percent.

EPA was unable to estimate an annual cost of special trips for large
oceangoing vessels to discharge beyond State marine waters.  Data was
not available for determining how many large oceangoing vessel owners
with vessels subject to the proposed rule might choose to implement
these operational changes.

Table 7. Potential Industry Costs from the Proposed Rule

	Expansion of holding tank ** 	Discharging outside of state marine
waters ***

Large Oceangoing Vessels (with two days or more sewage holding
capacity)*	$100,000/vessel	$2,000/ trip

Large Passenger Vessels	$3.8 million	$1.6 million

* Large oceangoing vessels subject to proposed rule that would make
operational or structural changes could not be determined.

** One-time cost estimate

*** Annual cost estimates

B.  Paperwork Reduction Act

This action does not impose an information collection burden under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b).  Since today's rule would not
establish or modify any information and record keeping requirements, it
is not subject to the requirements of the Paperwork Reduction Act.

C.  Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities.  Small entities include small businesses, small organizations,
and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities,
small entity is defined as: (1) a small business as defined by the Small
Business Administration’s (SBA) regulations at 13 CFR 121.201; (2) a
small governmental jurisdiction that is a government of a city, county,
town, school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not dominant
in its field.

After considering the economic impacts of this proposed regulation/rule
on small entities, EPA certifies that this action will not have a
significant economic impact on a substantial number of small entities.
The small entities subject to the requirements of this proposed rule
fall under Deep Sea Freight Transportation (NAICS Code 483111) and Deep
Sea Passenger Transportation (NAICS 483112) classifications.  The US
Small Business Administration size standard for these businesses is 500
or fewer employees.  To determine the size of companies that own large
passenger and large oceangoing vessels that call at California ports,
the EPA reviewed owner profiles for all large passenger vessels and
several large oceangoing vessels that responded to the 2006 vessel
survey.  Based on this review, it was determined that no large passenger
and large oceangoing vessels that call at California ports are owned by
companies that employ 500 or fewer people.

We continue to be interested in the potential impacts of the proposed
rule on small entities and welcome comments on issues related to such
impacts.

D. Unfunded Mandates Reform Act

This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year, as
demonstrated above in section A, Executive Order 12866:  Regulatory
Planning and Review.

Because the rule contains no regulatory requirements that might
significantly or uniquely affect small governments, it is also not
subject to the requirements of section 203 of the Act.  Small
governments are subject to the same requirements as other entities whose
duties result from this rule and they have the same ability as other
entities to retain and pump out treated sewage or discharge outside of
the designated zones.

E.  Executive Order 13132:  Federalism

This action does not have Federalism implications.  It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132.  Section 312(f) of the CWA generally
preempts State regulation of sewage discharges in State waters.  An NDZ
allows the State to seek protection of its State waters that it would
otherwise be preempted from doing providing on its own.  The State of
California is requesting that EPA take action to designate all State
waters as an NDZ under CWA §312(f)(4)(A).  Therefore, Executive Order
13132 does not apply to this action.

 In the spirit of Executive Order 13132, and consistent with EPA policy
to promote communications between EPA and State and local governments,
EPA specifically solicits comment on this proposed action from State and
local officials.

F.  Executive Order 13175:  Consultation and Coordination with Indian
Tribal Governments

	This action does not have any known tribal implications, as specified
in Executive Order 13175 (65 FR 67249, Nov. 9, 2000).  The only expected
impact on tribal rights or responsibilities is the improvement of ocean
water quality.  EPA has notified all California tribes with coastal
reservations of this proposed action.  EPA will consider any comments on
this proposed action from tribal officials.

G.  Executive Order 13045:  Protection of Children from Environmental
Health Risks & Safety Risks

H.  Executive Order 13211:  Actions that Significantly Affect Energy
Supply, Distribution, or Use

This action is not a “significant energy action” as defined in
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not
likely to have a significant adverse effect on the supply, distribution,
or use of energy.

I.  National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of
1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs
EPA to use voluntary consensus standards in its regulatory activities
unless to do so would be inconsistent with applicable law or otherwise
impractical.  Voluntary consensus standards are technical standards
(e.g., materials specifications, test methods, sampling procedures, and
business practices) that are developed or adopted by voluntary consensus
standards bodies.  NTTAA directs EPA to provide Congress, through OMB,
explanations when the Agency decides not to use available and applicable
voluntary consensus standards.

	This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.

J.  Executive Order 12898:  Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations

	Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal
executive policy on environmental justice.  Its main provision directs
federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States.

		EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or
low-income population.  The proposed rule would further regulate and
reduce pollutants from sewage in California marine waters thus reducing
the risk of exposure to all populations, including those covered under
this Executive order.

Lists of Subjects in 40 CFR Part 140

	Environmental protection, Sewage disposal, Vessels.

__________________________

Dated:

__________________________

Regional Administrator, Jared Blumenfeld

	In consideration of the foregoing, EPA is amending part 140, chapter 1
of title 40 of the Code of Federal Regulations as follows:

PART 140 – [AMENDED]

1. The authority citation for part 140 continues to read as follows:

Authority: 33 U.S.C. 1322.

 read as follows:

Sec. 140.4 Complete prohibition.

* * * * *

	(b) * * *

):

 all enclosed bays and estuaries subject to tidal influences from the
Oregon border (41.999325 North Latitude, 124.212110 West Longitude,
decimal degrees, NAD 1983) to the Mexican border (32.471231 North
Latitude, 117.137814 West Longitude, decimal degrees, NAD 1983).  A map
illustrating these areas can be obtained or viewed at the EPA’s
website at  HYPERLINK
"http://www.epa.gov/region09/water/no-discharge/index.html"
http://www.epa.gov/region09/water/no-discharge/index.html .

, at least two days or more of sewage per the vessel’s crew capacity
at a generation rate of 8.4 gallons per day per person.

 PAGE   3

 Federal Clean Water Act Section 502(8)

 Page 33 of the April 5, 2006 State Application

 Yoder, et al., 2008, Surveillance for Waterborne Disease and Outbreaks
Associated with Recreational Water Use and Other Aquatic
Facility-Associated Health Events --- United States, 2005-2006. Centers
for Disease Control, Surveillance Summaries, 57(SS09), September 12,
2008.

 Yoder, et al., 2008

 Yoder, et al., 2008

 EPA, 2009, National Summary: 2008 Swimming Season Update. EPA
823-F-09-005, May 2009

 EPA, 2009, National Summary: 2008 Swimming Season Update. EPA
823-F-09-005, May 2009

 EPA, 2009, National Summary: 2008 Swimming Season Update. EPA
823-F-09-005, May 2009

 U.S. Coast Guard MSD Requirements:
http://www.uscg.mil/hq/cg5/cg5213/msd.asp

 U.S. Coast Guard Systems Engineering Division (CG-5213):
http://www.uscg.mil/hq/cg5/cg5213/

 California State Assembly Bill 2672, Section 1(c).

 California SB 771, Chapter 588, Section 21.

 California SB 771, Chapter 588, Section 6 (72401(a)).

 California State Lands Commission 2006 Vessel Survey

 EPA’s December 29, 2008 Cruise Ship Discharge Assessment Report found
that average reported sewage generation rates were 8.4
gallons/day/person

 EPA’s December 29, 2008 Cruise Ship Discharge Assessment Report found
that average reported sewage generation rates were 8.4
gallons/day/person

 Department of Commerce, NOAA, Federal Register /Vol. 73, No. 225
Published November 20, 2008/15 CFR Part 922 and Federal Register / Vol.
74, No. 11 / Friday, January 16, 2009 / Rules and Regulations

 California’s Ocean Economy, Report to the Resources Agency, State of
California, The National Ocean Economics Program , 2005

 June 2007 Pacific Institute Desalination Report

 April 5, 2006 State Application

 April 5, 2006 State Application

 2006 CWA 303(d) List

 2006 CWA 303(d) List

 Royal Caribbean Press Release– Fast Facts Oasis of the Seas/Allure of
the Seas- http://www.oasisoftheseas.com/press-materials.php

 California State Lands Commission 2006 Vessel Survey data was dictated
under SB 771

 California State Lands Commission 2006 Vessel Survey reported 33 large
passenger vessels making port calls in California with an average 709
crew and 2,154 passengers for an average of 2,864 people on board.

 Number and frequency of port calls for large passenger vessels based on
the January 27, 2009 State Application Addendum.

 2000 Alaska Cruise Ship Initiative, reported in 2008 EPA Cruise Ship
Discharge Assessment Report.  Two of the 21 vessels sampled were using
reverse osmosis treatment systems.

 2003 Metcalf & Eddy Wastewater Engineering

 2000 Alaska Cruise Ship Initiative, reported in 2008 EPA Cruise Ship
Discharge Assessment Report.

 Sampling results used include EPA sampled wastewater from cruise ships
in 2004 and 2005, cruise ship compliance monitoring data for AWT
effluent provided by the Alaska Department of Environmental Conservation
and the Coast Guard for 2003-2005, and self-monitoring data for AWT
effluent submitted by the cruise industry in response to EPA’s 2004
cruise ship survey.

 March 2006, EPA Sampling Episode Report Princess Cruise Lines –
Island Princess, Sampling Episode 6505

 July 8, 2009  letter from Congress to Administrator Jackson

 GlobalSecurity.org

 According to the California State Lands Commission 2006 Vessel Survey,
35 percent of vessels had sewage capacity of two days or more.  This was
extrapolated to estimate sewage capacity of vessels calling in 2008 as
reported in the State’s January 27, 2009 Application Addendum.

California State Lands Commission 2006 Vessel Survey

 January 27,2009 State Application Addendum

 Port of Oakland Website:
http://www.portofoakland.com/portnyou/50ftdred.asp

 San Pedro Bay Ports Long-Term Cargo Forecast, Mercer Management
Consulting, 2001

 Container Vessel Forecast for San Pedro Bay Ports, Mercator Transport
Group, 2000.

 Port of Oakland Website: http://www.portofoakland.com

 California State Lands Commission 2006 Vessel Survey

 January 27, 2009 State Application Addendum

 January 27, 2009 State Application Addendum

 USEPA No Discharge Zones for Vessel Sewage:
HTTP://www.epa.gov/region09/water/no-discharge/index.html

 April 5, 2006 State Application

 Marine Pollution, Progress Made to Reduce Marine Pollution by Cruise
Ships but Important Issues Remain, GAO 2000

 Estimate from third party industry group, 11/3/2009

 2008 EPA Cruise Ship Discharge Assessment Report

 Cunard Queen Elizabeth 2 Technical Information estimated fuel
consumption rate of 49.5 feet per gallon:
http://www.cunard.com/uploads/QE2_Tech.pdf

 Ports of Los Angeles and Long Beach Vessel Speed Reduction Program:
HYPERLINK "http://www.portoflosangeles.org/environment/ogv.asp"
http://www.portoflosangeles.org/environment/ogv.asp .

Port of San Diego Voluntary Vessel Speed Reduction Program Showing Signs
of Success:  HYPERLINK
"http://www.portofsandiego.org/environment/1728-voluntary-vessel-speed-r
eduction-program-showing-signs-of-success.html"
http://www.portofsandiego.org/environment/1728-voluntary-vessel-speed-re
duction-program-showing-signs-of-success.html .

 New York Times, February 16, 2010, Slow Trip Across Sea Aids Profit and
Environment:  HYPERLINK
"http://www.nytimes.com/2010/02/17/business/energy-environment/17speed.h
tml"
http://www.nytimes.com/2010/02/17/business/energy-environment/17speed.ht
ml

 U.S. Small Business Administration Table of Small Business Size
Standards, North American Industry Classification System (NAICS)),
www.sba.gov/size)

**********

  PAGE   \* MERGEFORMAT  40

*******************************

CEQ: On the whole, this seems like a barely adequate package that
responds to the CA state request for the no discharge finding.

A key issue not really addressed in the rule is whether the CWA provides
a legal basis for a prohibition that is limited to a subset of vessels
(ie large vessels) rather than all vessels…this may be a legal
vulnerability, but it is not clear that CA cruise lines would care
enough to fight this…or would want to be seen as fighting it… Cruise
lines more generally, however, may be concerned about other States
following the CA lead once the precedent is established.  The rule
could be clearer in asserting out authority here.

USCG: adding the comma after “vessels” and before “and” to make
it sufficiently clear that holding capacity applies only to large
oceangoing vessels.

DoD recommends that military vessels be exempted from the Proposed
Regulation to Establish a No Discharge Zone (NDZ) for California State
Marine Waters through a definition of “large oceangoing vessel” that
does not include vessels owned and operated by the Department of Defense
subject to the authority of the Clean Water Act Section 312 (d).

 OMB: It would be more relevant to this rule making to include data
specifically for CA.

CEQ: It is not clear what these are with respect to pathogen levels,
i.e., when ambient water concentrations of fecal coliform exceed  X…

CEQ: Shellfish bed closures comes up later and we should provide some
national info here.

OMB: Again, data specific to CA would be more relevant here.

USCG: CWA 312(h) is applicable to a vessel subject to such standards,
but not all vessels in the strictest sense.

USCG certifies, but does not approve, MSDs.

USCG does not certify Type III devices that operate at ambient air
pressure and temperature.

DOD: Almost all current DoD vessels over 300 tons have either Type III
MSDs on board and therefore do not discharge sewage within 3 nm of land,
or have Type II MSDs with less than 2 days holding capacity and would
not be affected by this rule.  However, 2 new classes of vessels, the
Littoral Combat Ship (LCS) and the Joint High Speed Vessel (JHSV), are
currently slated to have Type II MSDs with greater than two days of
holding capacity.  LCS and JHSV vessels are being designed for multi-day
near shore operations and need to be able to discharge treated sewage in
order to perform their national security missions.  If the NDZ were to
apply to DoD vessels, then LCS and JHSV vessels would not be able to
perform necessary training and/or operations in CA state waters.

Retaining the definition of “large oceangoing vessel”, that includes
military vessels, would unnecessarily interfere with the authority
granted to the Secretary of Defense to determine when compliance with
standards and regulations under CWA 312 would not be in the interest of
national security.  Pursuant to Section 312 (d), the Secretary of
Defense promulgated DoD 4715.06-R1 Regulations on Vessels Owned or
Operated by the Department of Defense (January 2005).  This reg. allows,
at certain times and under certain circumstances, exemptions for some
vessels from the sewage discharge requirements of the CWA when
compliance “would excessively and unreasonably detract from their
military characteristics, effectiveness, or safety to not be in the
interest of national security.”  Commanding officers whose vessels are
subject to the exemption are nonetheless required to limit discharge of
vessel-generated sewage into U.S. navigable waters, territorial seas,
and EPA delineated “No Discharge Zones” designated under the CWA to
the maximum extent practicable without endangering the health, safety,
or welfare of the crew or other personnel aboard.

DoD vessels undergo rigorous system design qualifications to ensure that
a MSD installed on a ship will continuously meet or exceed designed
performance standards.  DoD shipboard technical experts regularly
inspect and test vessels and their systems to meet designed performance
requirements.  When systems do not perform to specification, the
technicians conduct the necessary maintenance or repairs to bring the
system back to specification.  DoD installs, tests, and certifies a Type
II MSD onboard a DoD vessel to provide a consistent discharge at or
below Type II MSD specifications.

CEQ: Need to explain here how an action under (3) is different from an
action under (4)(a)…ie…does the option to use 4(a) simply obviate
the need to make a showing re pumping stations under (3)?...need to
explain EPA view of this…

CEQ: Need to explain EPA view of whether the CWA language allows for a
prohibition that applies to a subset of “vessels”….is there
legislative history to support this?    Do EPA regs address this?  Have
we ever denied an application on the grounds that it would only apply to
a subset?  Rule should request comment on this question.

USCG: Tonnage is a function of displacement, not weight.

USCG: GRT refers to a U.S. domestic tonnage scheme, and does not equate
to Intl' tonnage schemes (ITC) for foreign ships.  The term "gross tons"
carries both meanings (GRT and ITC) as dictated by the Intl' tonnage
Convention.

USCG: AWTS are typically installed on cruise ships, which have
comprehensive maintenance programs in place.  What is the source of this
information/cite?

CEQ: Please explain…the “enforcement mechanism” is 312(k) …which
applies to (f) prohibitions but does not allow for penalties…The new
NDZ provides a new prohibition which might be enforced but not a new
mechanism for enforcement….A state can enforce the prohibition under
(k) but would need State authorities that are not mentioned…

USCG: For purposes of this Federal regulation, recommend inserting in
the preamble the full text of what constitutes and is excluded from the
definition of a large passenger vessel and large commercial vessels,
rather than rely on a reference to a definition established elsewhere in
State law.

USCG: I agree. The entire State definition being used should be included
in the text, with a footnote citing where in State law the definition
came from.

USCG: Also, it would be best to include the definition of large
passenger vessel within the reg text.

USCG: Not all vessels have a holding tank suitable for the storage of
treated and untreated sewage.  A suitable holding tank is a tank that
was designed, constructed, and certified by the ship’s flag
Administration to hold sewage.  Most integral tanks on large ships are
designated ballast water tanks and may not be suitable for the storage
of sewage.

USCG: Rob –great point.  I slightly reworded the following sentence
from your comment above (my words in caps): “A suitable holding tank
IS a tank that was designed, constructed, and certified by the ship’s
flag Administration TO HOLD SEWAGE.”

USCG: Recommend the insertion of the following sentence here:  A
suitable holding tank is a tank that was designed, constructed, and
certified by the ship’s flag Administration to hold sewage.

OMB: If port calls “averaged” two days in duration, this means a
significant number of port calls would be longer than two days.  Did CA
suggest using this duration to implement their statute?

CEQ: Is “crew capacity” pretty fixed per vessel…or could a vessel
claim a very high “capacity” in order to avoid coverage?

CEQ: Is there any data specific to ocean going vessels rather than
cruise ships?

NOAA: The National Marine Fisheries Service at NOAA recommends extending
the justification for closures to include or reflect Essential Fish
Habitat and that the limits on sewage discharge should be extended to
Essential Fish Habitat designated in state waters in the 0-3 mile zone
or inland.  It is the National Marine Fisheries Service’s opinion
that those habitats share a heightened level of importance along with
other areas recognized or designated by NOAA programs.

NOAA: NOAA’s National Ocean Service, Office of National Marine
Sanctuaries, believes the proposed rule will complement the existing
federal regulations at the four California national marine sanctuaries
which overlap with nearly 30 percent of state waters.  The Office of
Coastal and Ocean Resources Management would like to point out that
there is no direct mention of the three National Estuarine Research
Reserves in California that would benefit from a no discharge zone and
that have a strong constituency base.  Designated pursuant to Section
315 of the Coastal Zone Management Act, and part of a partnership
program between NOAA and coastal states, the Reserves are: San Francisco
Bay; Elkhorn Slough; and Tijuana River.  They are managed by San
Francisco State University, the California Department of Fish and Game,
and the State's Department of Parks and Recreation, respectively.

CEQ: Please insert a reference.

NOAA: should read “with or without sufficient holding tank capacity”

CEQ: How can vessels be required to hold sewage while within the
Sanctuaries if they lack sufficient holding tank capacity?

CEQ: Need to add reference to 8000 sq miles of marine waters protected
by NMS outside of state waters…

CEQ: Need to add Ca beach closure data here

CEQ: Need to explain what the harm is here…do desal plants have a
problem with pathogen removal?  Is there greater desal operational
costs?  Greater health risks?

CEQ: Also, need to add info on CA shellfishing bed closures including
any association with sewage/pathogens…OST has this data..

CEQ: Also, conclusion statement refers to fish consumption and  some
info on CA fish consumption advisories should be added here…

CEQ: Need to address any linkage between these impaired segments and
port of call locations that would be impacted by discharges to be
prohibited.

CEQ: Need to add number of these 79 segments that are now restored and
attaining standards.

CEQ: These two sentences seem really hypothetical, especially in light
of following analysis that is better focused…

OMB: This statistic is misleading as it does not represent actual or
projected operation in CA marine waters.

CEQ: Of but can we provide some assurance that this is a good estimate
as opposed to a not typical year?

USCG: Recommend MPN be defined.

CEQ: Can we clarify that the performance standard is for concentration
measures in effluent rather than ambient water

CEQ: Given the surprising range of this data, we need to provide some
further discussion of the basis for the range…first, do we believe
this data?  Were there method collection issues?  If data is sound, why
we the levels so high?  Was there bypass of the treatment systems?    Or
did the treatment systems malfunction?

OMB: f I am reading this correctly, it means there is massive
non-compliance with the Federal standard.  Why isn’t the standard
enforced?

CEQ: Explain…in receiving / ambient water or in effluent?

CEQ: Need to explain how the NRWQC relates to state adopted WQ standard
under the CWA

OMB: This is irrelevant for determining compliance with the ambient
standard.

OMB: Not clear what this means.  First of all, how can a value be
greater than a narrative standard?  Also, again, you are comparing
discharge levels to ambient standards.  Suggest rewriting consistent
with suggested language in the para above.

OMB: This phrase is confusing as the statistic later in the sentence
appears to apply to the nation, not CA.

CEQ: This is your hypothetical extension of the past rate…is there any
actual projection of the future change in some measure of growth in the
CA cruise industry…ie passengers…ships etc…

USCG: Some responses may have incorrectly included non-sewage holding
tanks, such as ballast water tanks.  See earlier comment on suitability
of tank design/construction.

CEQ: Need to explain that all of this amount might be discharged and
that all of this amount might be retained and discharged legally outside
3 miles…or discharged to a pumpout facility

OMB: These national statistics are confusing as they are not fully
consistent with the state specific statistics that follow, suggest
deleting.

CEQ: Has EPA considered proposing large oceangoing vessels with less
than two days of holding capacity be required to retrofit given these
large volumes?

CEQ: Need to briefly describe these measures

NOAA: delete “remaining 3,467” and insert in its place “entire
5,222”. EPA’s regulation would apply to the entire California coast.
(NOAA’s regulations apply only to the sanctuaries.)

USCG: We need to be careful about the “nautical miles” in this
context. I agree when talking distance it is nm, but I’m not sure that
is true in this context…

USCG: The source data should be consulted to verify if “miles” or
“nautical miles” was used.

CEQ: This statement is not well supported by the preamble as
drafted…no info on fish consumption of the impact of vessel discharges
on fish consumption…or for shellfish beds…or for harm to desal..

CEQ: Add Combined LOVs and Rec Vessels…so that this matches the table
above in structure

CEQ: Note that depending on the location of the port of call, a trip to
the outside of a NDZ could be much more than 3 miles as a result of the
NMS NDZs that are well beyond state waters….see map…

OMB: I would add a sentence summarizing specifically what EO 13045
requires, and then note that these requirements only apply to rules that
are economically significant under EO 12866, rather than saying this
rule is “not subject” to EO 13045.

OMB: The first full para on p 4 says “Direct contact with these
pollutants can have serious human health effects, with children, the
elderly, and individuals with compromised immune systems being most
susceptible.”  This appears inconsistent with the statement here.  Not
sure which is correct, but I note that you do not need to say this here,
as the fact that the rule is not economically significant is sufficient
to determine that analytic requirements of EO 13045 do not apply.

CEQ: Why not (b)(2)?

NOAA: In sec. 140.4(b)(2), should the term ”large” be deleted in the
two places it appears? It does not seem intended to add anything beyond
“weighing 300 gross tons or greater” and therefore its inclusion
raises a legal issue as to what is meant by it.

Also, we suggest you insert “from” before “[large] oceangoing
vessel” to remove the argument (ambiguity) that the qualifier “that
have two days or more holding capacity” applies to passenger vessels
as well as oceangoing vessels.

NOAA: see above comment.

CEQ: Note that without the definition of passenger vessel from the Ca
law, there is nothing to prevent a passenger vessel from claiming to be
a large ocean going vessel and avoiding the prohibition on the grounds
of lacking 2 days or more of holding capacity…

NOAA: In sec. 140.4(b)(2)(i), delete “would also include” and insert
in its place “also includes”.

USCG: See comments on page 10 for justification of this addition.


[Federal Register Volume 83, Number 19 (Monday, January 29, 2018)]
[Notices]
[Pages 4092-4097]
[FR Doc No: 2018-01534]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-82567; File No. SR-BX-2018-005]

Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Amend Its Fees
at Rule 7023

January 23, 2018.
    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 January 18, 2018, Nasdaq BX, Inc. (``BX'' or ``Exchange'') filed
with the Securities and Exchange Commission (``SEC'' or ``Commission'')
the proposed rule change as described in Items I, II, and III below,
which Items have been prepared by the Exchange. The Commission is
publishing this notice to solicit comments on the proposed rule change
from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

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

    The Exchange proposes to amend its fees at Rule 7023 to modify the
fee schedule for BX TotalView to reflect substantial enhancements to
this product since the current BX TotalView fees were set in 2010.
    The text of the proposed rule change is available on the Exchange's
website at http://nasdaqbx.cchwallstreet.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 these

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 aspects of such statements.

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

1. Purpose
    The Exchange proposes to adjust the fee schedule for BX TotalView
to reflect substantial enhancements to this product since the current
non-display usage fees and enterprise license fees were set in 2010.\3\
Specifically, the Exchange proposes to: (i) Introduce a monthly non-
display usage \4\ fee of $55 per Professional Subscriber \5\ for BX
TotalView based upon Direct Access; and (ii) increase the monthly
enterprise license fee for non-display usage of BX TotalView based upon
Direct Access from $16,000 to $20,000.
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release No. 62001 (April 29,
2010), 75 FR 25014 (May 6, 2010) (SR-BX-2010-027).
    \4\ Non-Display usage is any method of accessing Exchange
information that does not involve the display of such data on a
screen or other mechanism designed for access or use by a natural
person or persons. Non-Display usage applies to automated order
generation and program trading, algorithmic trading and order
routing, and back office processes such as surveillance, order
verification, and risk management. See Id. (establishing a Non-
Display usage cap for internal distributors of BX TotalView).
    \5\ A ``Subscriber'' is any access that a distributor of data
entitlement package(s) provides to: (1) Access the information in
the data entitlement package(s); or (2) communicate with the
distributor so as to cause the distributor to access the information
in the data entitlement package(s). See BX Rule 7023(c).
---------------------------------------------------------------------------

BX TotalView
    BX TotalView, like Nasdaq and PSX TotalView, is a real-time market
data feed that provides access to every displayed quote and order at
every price level in Nasdaq-, NYSE-, NYSE American-, NYSE Arca-, CBOE-,
and IEX-listed securities. The product also provides anonymous interest
and administrative messages relating to trading halts and symbol
directory messages.\6\
---------------------------------------------------------------------------

    \6\ Symbol directory messages include basic security data such
as the market tier and Financial Status Indicator.
---------------------------------------------------------------------------

    BX TotalView is available for a monthly per Subscriber fee of $20
for either display or non-display usage of Nasdaq issues, and an
additional monthly per Subscriber fee of $20 for NYSE and regional
issues. A ``Subscriber'' is ``any access that a distributor of the data
entitlement package(s) provides to: (1) Access the information in the
data entitlement package(s); or (2) communicate with the distributor so
as to cause the distributor to access the information in the data
entitlement package(s).'' \7\ The current monthly charges are based on
the number of Subscribers, without regard to whether a Subscriber is
used for non-display or display usage.
---------------------------------------------------------------------------

    \7\ See Note 5.
---------------------------------------------------------------------------

    For firms that utilize BX TotalView internally for non-display
purposes, the product may also be purchased through an enterprise
license fee of $16,000 per month for unlimited internal use of non-
display data. This enterprise license, which provides an alternative to
monthly per Subscriber fees, is designed to relieve firms with a large
number of internal Subscribers from the administrative burden of
identifying, tracking and reporting such Subscribers.
Proposed Changes
    BX TotalView is one of a number of market information services
offered by the Exchange. Such services are inextricably connected to
trade execution: Market information services require trade orders to
provide useful information, and investors utilize market information to
make trading decisions. Over the seven years that have elapsed since
the current fee schedule for non-display usage and enterprise licenses
for BX TotalView were introduced,\8\ the Exchange has invested in an
array of upgrades to both its trade execution and market information
services, which have increased the value of these services overall, and
BX TotalView in particular.\9\
---------------------------------------------------------------------------

    \8\ See Securities Exchange Act Release No. 62001 (April 29,
2010), 75 FR 25014 (May 6, 2010) (SR-BX-2010-027).
    \9\ Many of these upgrades are common to several Nasdaq-
affiliated exchanges, as improvements to the products and services
of one exchange are reproduced in other exchanges.
---------------------------------------------------------------------------

    The Exchange proposes to adjust its fee schedule for BX TotalView
to reflect the value of the many investments improving the product,
which include:
     Glimpse Snapshot Facility. In 2013, the Exchange
substantially updated the Glimpse snapshot facility, which allows firms
to obtain a snapshot of the order book at any point during the trading
day. The service may be used to validate order book displays or to
recover from data gaps during the trading day.\10\
---------------------------------------------------------------------------

    \10\ See http://www.nasdaqtrader.com/TraderNews.aspx?id=dtn2013-33.
---------------------------------------------------------------------------

     Enhanced Data Feed. In 2014, the Exchange enhanced the BX
TotalView data feed by: (i) Converting to binary codes to make more
efficient use of bandwidth and to provide greater timestamp
granularity; (ii) adding a symbol directory message to identify a
security and its key characteristics; and (iii) adding the Market Wide
Circuit Breaker (``MWCB'') Decline Level message to inform recipients
of the setting for MWCB breach points for the trading day, and an MWCB
Status Level Message to inform data recipients when an MWCB has
breached an established level.\11\
---------------------------------------------------------------------------

    \11\ See http://www.nasdaqtrader.com/TraderNews.aspx?id=dtn2013-45 and http://www.nasdaqtrader.com/TraderNews.aspx?id=dtn2013-33.
---------------------------------------------------------------------------

     Reg SHO Circuit breaker. In 2010, the Exchange instituted
a Regulation SHO restricted indicator message. This message is
disseminated if the price of the security declines by 10 percent or
more from the prior closing value during normal market hours.\12\
---------------------------------------------------------------------------

    \12\ See http://www.nasdaqtrader.com/TraderNews.aspx?id=dtn2010-023.
---------------------------------------------------------------------------

     Geographic Diversity. In 2015, all of the Nasdaq Exchanges
moved their Disaster Recovery (``DR'') center from Ashburn, Virginia,
to Chicago, Illinois. As a result, customers can both receive market
data and send orders through the Chicago facility, potentially reducing
overall networking costs. Adding such geographic diversity helps
protect the market in the event of a catastrophic event impacting the
entire East Coast.\13\
---------------------------------------------------------------------------

    \13\ See http://www.nasdaqtrader.com/TraderNews.aspx?id=dtn2015-17.
---------------------------------------------------------------------------

     Chicago ``B'' Feeds. In 2017, all of the Nasdaq exchanges
added a multicast IP address for proprietary equity and options data
feeds in Chicago, allowing firms the choice of having additional
redundancy to ensure data continuity.\14\
---------------------------------------------------------------------------

    \14\ See http://www.nasdaqtrader.com/TraderNews.aspx?id=dtn2017-02.
---------------------------------------------------------------------------

     Extended Transmission Hours. In 2014, the Exchange began
to transmit data between 3:00 and 4:00 a.m. Eastern, approximately
three hours earlier than previously, to provide customers with an
opportunity to test connectivity before pre-market sessions open at
7:00 a.m. Eastern.\15\
---------------------------------------------------------------------------

    \15\ The extended schedule for data transmission did not extend
pre-market trading hours. See http://www.nasdaqtrader.com/TraderNews.aspx?id=dtn2014-08.
---------------------------------------------------------------------------

    This proposed fee change for BX TotalView differs from the
corresponding fee change recently proposed for PSX TotalView \16\ in
that: (i) The monthly non-display usage fee for Professional
Subscribers is proposed to be $50 for PSX TotalView, and $55 for BX
TotalView, and (ii) the proposed monthly enterprise license fee for
non-display usage of PSX TotalView is $17,000, while the corresponding
fee proposal for BX TotalView is $20,000.

These differences are justified by differences in the usage of the two
exchanges, as well as certain network investments that are unique to
BX.
---------------------------------------------------------------------------

    \16\ See SR-PHLX-2018-10.
---------------------------------------------------------------------------

    BX has approximately 25 percent more market participants than PSX,
as measured by Market Participant Identifier (``MPID''). This greater
number of market participants results in more trades: BX processed
approximately twice the number of trading messages as PSX in 2017, and,
as of February 2017, BX had nearly 5 times more add/remove liquidity
than PSX. These differences in usage are reflected in significantly
different growth rates: The peak one second transaction rate for BX
increased by 78 percent between 2012 and 2017, while the same measure
for PSX increased by only 20 percent over the same period.
    BX also has invested in two network enhancements that are unique to
that Exchange:
     Price Improvement Indicator. In 2014, the Exchange
introduced a Price Improvement Indicator (``PII'') \17\ message. The
purpose of this indicator is to denote when a Retail Price Improvement
order better than the best displayed bid and/or offer price for a given
security is available.\18\
---------------------------------------------------------------------------

    \17\ See Securities Exchange Act Release No. 73410 (October 23,
2014), 79 FR 64447 (October 29, 2014) (SR-BX-2014-048).
    \18\ See http://www.nasdaqtrader.com/TraderNews.aspx?id=dtn2014-18.
---------------------------------------------------------------------------

     Additional Data Feed at Carteret. In 2017, the Exchange
added a new source IP address for the BX data feeds at its Carteret
facility, providing additional redundancy to ensure data
continuity.\19\
---------------------------------------------------------------------------

    \19\ See http://www.nasdaqtrader.com/TraderNews.aspx?id=dtn2017-16.
---------------------------------------------------------------------------

    The proposed price increases are also justified by the fact that,
while usage of the BX exchange increased and the Exchange invested in a
number of enhancements to its data feed, fees for BX fell in real terms
as a result of price inflation.\20\ The proposed increase to the
monthly non-display usage fee amounts to an annual increase of
approximately 4.65 percent over the relevant period, and the proposed
enterprise license fee increase translates to an annual increase of
approximately 3.24 percent over the relevant period, both of which are
partially offset by inflation.
---------------------------------------------------------------------------

    \20\ The Consumer Price Index indicates a price increase of
approximately 13 percent between April 2010 and November 2017. See
https://www.bls.gov/data/inflation_calculator.htm.
---------------------------------------------------------------------------

    As a result of these substantial upgrades, the Exchange proposes
two substantive changes to the BX TotalView fee schedule: (i) Introduce
a monthly non-display usage fee of $55 per Subscriber based upon Direct
Access; and (ii) increase the monthly enterprise license fee for non-
display usage based upon Direct Access from $16,000 to $20,000.\21\
---------------------------------------------------------------------------

    \21\ In addition to these two substantive changes, the Exchange
proposes four technical changes. First, the Exchange proposes to add
the phrase ``for display usage'' to Rule 7023(a)(1) to distinguish
between display usage fees, which shall remain unchanged, and non-
display usage fees, which will increase. Second, the Exchange
proposes to change the reference to per Subscriber fees in new Rule
7023(a)(3) from (a)(1) to (a)(2) because non-display fees have been
moved from section (a)(1) to (a)(2) for Professionals that take the
feed through Direct Access. Third, the Exchange proposes to renumber
former Rules 7023(a)(2) and (a)(3) to Rules 7023(a)(3) and (a)(4),
respectively, to reflect the introduction of new Rule 7023(a)(2).
Fourth, the Exchange proposes to revise proposed Rule 7023(a)(4)
(``Free-Trial Offers'') to reflect the new fee set forth in proposed
Rule 7023(a)(2).
---------------------------------------------------------------------------

    The current fee structure allows firms to purchase BX TotalView for
all issues for display or non-display usage by professionals for a per
Subscriber monthly charge of $40 ($20 for Nasdaq issues and $20 for
NYSE and regional issues). The Exchange proposes to remove non-display
usage based upon Direct Access from those fees, and institute a
separate fee for non-display usage based upon Direct Access for all
Nasdaq, NYSE and regional issues.\22\ Fees for non-professionals will
not change. The effect of this proposal would be to leave the total
fees for display usage and non-display usage not based upon Direct
Access by professionals for all issues unchanged at $40, but to
increase the monthly fee to $55 per month for non-display usage by
professionals based upon Direct Access.\23\ With this change, the
pricing structure for BX TotalView will conform to the pricing
structure for Nasdaq TotalView (which has differential fees for display
and non-display usage),\24\ the proposed pricing structure for PSX
TotalView (proposed in a separate filing for the PSX Exchange),\25\ as
well as the non-display fee structure for NYSE and other exchanges.\26\
As noted elsewhere, differential pricing for display and non-display
usage has become the industry norm.
---------------------------------------------------------------------------

    \22\ Any Subscriber within a firm that obtains Exchange data
through a Subscriber from that same firm with Direct Access has
obtained such data ``based upon Direct Access.''
    \23\ ``Direct Access'' means a telecommunications interface with
the Exchange for receiving Exchange data, or receiving an Exchange
data feed within the Exchange co-location facility, or receiving
Exchange data via an Extranet access provider or other such provider
that is fee-liable under Rule 7025. See BX Rule 7019(c).
    \24\ See Nasdaq Rule 7023(b)(2).
    \25\ See SR-PHLX-2018-10. BX fees are higher than PSX fees
because of differences in usage between the two exchanges, as well
as differences in infrastructure investments, as described above.
    \26\ See, e.g., NYSE PDP Market Data Pricing (November 3, 2017),
found at https://www.nyse.com/publicdocs/nyse/data/NYSE_Market_Data_Pricing.pdf.
---------------------------------------------------------------------------

    The second proposal will increase the monthly enterprise license
fee for internal non-display usage based upon Direct Access from
$16,000 to $20,000.
    BX TotalView is optional in that the Exchange is not required to
offer it and broker-dealers are not required to purchase it. Firms can
discontinue use at any time and for any reason, including an assessment
of the fees charged.
    The proposed change does not change the cost of any other Exchange
product.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\27\ in general, and furthers the objectives of
Sections 6(b)(4) and 6(b)(5) of the Act,\28\ in particular, in that it
provides for the equitable allocation of reasonable dues, fees and
other charges among members and issuers and other persons using any
facility, and is not designed to permit unfair discrimination between
customers, issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \27\ 15 U.S.C. 78f(b).
    \28\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------

    The Commission and the courts have repeatedly expressed their
preference for competition over regulatory intervention in determining
prices, products, and services in the securities markets. In Regulation
NMS, while adopting a series of steps to improve the current market
model, the Commission highlighted the importance of market forces in
determining prices and SRO revenues and, also, recognized that current
regulation of the market system ``has been remarkably successful in
promoting market competition in its broader forms that are most
important to investors and listed companies.'' \29\
---------------------------------------------------------------------------

    \29\ Securities Exchange Act Release No. 51808 (June 9, 2005),
70 FR 37496, 37499 (June 29, 2005).
---------------------------------------------------------------------------

    Likewise, in NetCoalition v. Securities and Exchange Commission
\30\ (``NetCoalition'') the D.C. Circuit upheld the Commission's use of
a market-based approach in evaluating the fairness of market data fees
against a challenge claiming that Congress mandated a cost-based
approach.\31\ As the court emphasized, the Commission ``intended in
Regulation NMS that `market forces, rather than regulatory
requirements' play a role in determining the market data . . . to be
made available to investors and at what cost.'' \32\
---------------------------------------------------------------------------

    \30\ NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010).
    \31\ See NetCoalition, at 534-535.
    \32\ Id. at 537.
---------------------------------------------------------------------------

    Further, ``[n]o one disputes that competition for order flow is
`fierce.'

. . . As the SEC explained, `[i]n the U.S. national market system,
buyers and sellers of securities, and the broker-dealers that act as
their order-routing agents, have a wide range of choices of where to
route orders for execution'; [and] `no exchange can afford to take its
market share percentages for granted' because `no exchange possesses a
monopoly, regulatory or otherwise, in the execution of order flow from
broker dealers'. . . .'' \33\
---------------------------------------------------------------------------

    \33\ Id. at 539 (quoting Securities Exchange Act Release No.
59039 (December 2, 2008), 73 FR 74770, 74782-83 (December 9, 2008)
(SR-NYSEArca-2006-21)).
---------------------------------------------------------------------------

    The Exchange believes that the proposed fee changes are equitable
allocations of reasonable dues, fees and other charges in accordance
with Section 6(b)(4) of the Act, and not designed to permit unfair
discrimination between customers, issuers, brokers, or dealers in
accordance with Section 6(b)(5) of the Act. Both the monthly non-
display per Subscriber usage fee and the monthly enterprise license fee
for non-display usage are equitable allocations because, as has been
widely recognized, display and non-display functions provide different
value to the consumer, and it has become standard industry practice to
charge differing fees for these two different modes of data
consumption. In addition, discounts based on high levels of usage such
as the enterprise license for non-display usage have routinely been
adopted by exchanges and approved as equitable allocations of
reasonable dues, fees and other charges.\34\ As such, the proposed fees
vary solely based on reasonable and well-established industry norms
regarding types of data usage, as discussed above.
---------------------------------------------------------------------------

    \34\ For example, the Commission has approved pricing discounts
for market data under Nasdaq Rule 7023.
---------------------------------------------------------------------------

    The proposed changes do not permit unfair discrimination between
customers, issuers, brokers, or dealers because the Exchange makes all
services and products subject to these fees available on a non-
discriminatory basis to similarly-situated recipients. The proposed
fees are structured in a manner comparable to the corresponding fees of
Nasdaq already in effect, and compare favorably to fees charged by
Nasdaq for the same product. The fees are uniform except with respect
to reasonable and well-established distinctions among classes of data
as discussed above.
    The Exchange also distinguishes between usage based on Direct
Access and other methods of connection: Non-display usage that is based
upon Direct Access will be charged $55 per month, while other non-
display usage will be charged a total of $40 per month for all issues.
This distinction is an equitable allocation of reasonable dues, fees
and other charges because Direct Access provides the customer with
source information in the original raw format, which provides customers
with certainty that they are receiving data without conflation or
manipulation. This distinction does not permit unfair discrimination
between customers, issuers, brokers, or dealers because the price
differential is based on the difference in value to the customer.
    In addition, the Exchange proposes to introduce clarifying language
stating that the enterprise license for non-display data will be
available only to firms with Direct Access. This is an equitable
allocation of reasonable dues, fees and other charges because firms
with sufficient activity to purchase an enterprise license have a
Direct Access connection. As such, the proposed language simply
clarifies how the enterprise license will be used with respect to
Direct Access, in a similar manner to the way that Direct Access is
addressed in proposed Rules 7023(a)(1) and (a)(2), without affecting
the service of any specific customer. This proposed change does not
permit unfair discrimination between customers, issuers, brokers, or
dealers for the same reason: The proposed language is simply a
clarification that will not lead to any actual difference in usage.
    The Act does not prohibit all distinctions among customers, but
rather discrimination that is unfair. As the Commission has recognized,
``[i]f competitive forces are operative, the self-interest of the
exchanges themselves will work powerfully to constrain unreasonable or
unfair behavior.'' \35\ Accordingly, ``the existence of significant
competition provides a substantial basis for finding that the terms of
an exchange's fee proposal are equitable, fair, reasonable, and not
unreasonably or unfairly discriminatory.'' \36\ The proposed fees, like
all market data fees, are constrained by the Exchange's need to compete
for order flow as discussed below, and are subject to competition from
other exchanges and among broker-dealers for customers. If the Exchange
is incorrect in its assessment of price, it may lose market share as a
result.
---------------------------------------------------------------------------

    \35\ Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770 (December 9, 2008) (SR-NYSEArca-2006-21).
    \36\ Id.
---------------------------------------------------------------------------

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act. In terms of inter-market
competition, the Exchange notes that it operates in a highly
competitive market in which market participants can readily favor
competing venues if they deem fee levels at a particular venue to be
excessive, or rebate opportunities available at other venues to be more
favorable. In such an environment, the Exchange must continually adjust
its fees to remain competitive with other exchanges and with
alternative trading systems that have been exempted from compliance
with the statutory standards applicable to exchanges. Because
competitors are free to modify their own fees in response, and because
market participants may readily adjust their order routing practices,
the Exchange believes that the degree to which fee changes in this
market may impose any burden on competition is extremely limited.
    BX TotalView is a type of depth-of-book product, which consists of
``outstanding limit orders to buy stock at prices lower than, or to
sell stocks at prices higher than, the best prices on each exchange.''
\37\ The question of whether the prices of depth-of-book products are
constrained by competitive forces was examined in 2016 by an
Administrative Law Judge in an application for review by the Securities
Industry and Financial Markets Association of actions taken by Self-
Regulatory Organizations.\38\ After a four-day hearing and presentation
of substantial evidence, the administrative law judge stated that
``competition plays a significant role in restraining exchange pricing
of depth-of-book products'' \39\ because ``depth-of-book products from
different exchanges function as substitutes for each other,'' \40\ and,
as such, ``the threat of substitution from depth-of-book customers
constrains their depth-of-book prices.'' \41\ As a result, ``[s]hifts
in order flow and threats of shifting order flow provide a significant
competitive force in the

pricing of . . . depth-of-book data.'' \42\ The judge concluded that
``[u]nder the standards articulated by the Commission and D.C. Circuit,
the Exchanges have shown that they are subject to significant
competitive forces in setting fees for depth-of-book data: The
availability of alternatives to the Exchanges' depth-of-book products,
and the Exchanges' need to attract order flow from market participants
constrains prices.'' \43\
---------------------------------------------------------------------------

    \37\ Securities Industry and Financial Markets Association,
Initial Decision Release No. 1015, 2016 SEC LEXIS 2278 at 4 (A.L.J.
June 1, 2016) (quoting NetCoalition v. SEC, 615F3d 525, 529-30 (D.C.
Cir. 2010)).
    \38\ Id.
    \39\ Id. at 92.
    \40\ Id.
    \41\ Id. at 93.
    \42\ Id. at 104.
    \43\ Id. at 86.
---------------------------------------------------------------------------

    The proposed changes will: (i) Introduce a monthly non-display
usage fee of $55 per Subscriber for BX TotalView based upon Direct
Access; and (ii) increase the monthly enterprise license fee for non-
display usage of BX TotalView based upon Direct Access from $16,000 to
$20,000. These proposed price changes will not impose any burden on
competition because market data fees are but one aspect of the overall
competition among exchanges to solicit order flow; if the overall price
of interacting with the Exchange rises above competitive levels because
of market data fees, market forces would cause the Exchange to lose
market share.
    Market forces constrain fees for BX TotalView, as well as other
market data fees, in the competition among exchanges and other entities
to attract order flow and in the competition among Distributors for
customers. Order flow is the ``life blood'' of the exchanges. Broker-
dealers currently have numerous alternative venues for their order
flow, including self-regulatory organization (``SRO'') markets, as well
as internalizing broker-dealers (``BDs'') and various forms of
alternative trading systems (``ATSs''), including dark pools and
electronic communication networks (``ECNs''). Each SRO market competes
to produce transaction reports via trade executions, and two FINRA-
regulated Trade Reporting Facilities (``TRFs'') compete to attract
internalized transaction reports. The existence of fierce competition
for order flow implies a high degree of price sensitivity on the part
of BDs, which may readily reduce costs by directing orders toward the
lowest-cost trading venues.
    The level of competition and contestability in the market for order
flow is demonstrated by the numerous examples of entrants that swiftly
grew into some of the largest electronic trading platforms and
proprietary data producers: Archipelago, Bloomberg Tradebook, Island,
RediBook, Attain, TracECN, BATS Trading and BATS/Direct Edge. A
proliferation of dark pools and other ATSs operate profitably with
fragmentary shares of consolidated market volume. For a variety of
reasons, competition from new entrants, especially for order execution,
has increased dramatically over the last decade.
    Each SRO, TRF, ATS, and BD that competes for order flow is
permitted to produce proprietary data products. Many currently do or
have announced plans to do so, including NYSE, NYSE American, NYSE
Arca, CBOE, and IEX. This is because Regulation NMS deregulated the
market for proprietary data. While BDs had previously published their
proprietary data individually, Regulation NMS encourages market data
vendors and BDs to produce proprietary products cooperatively in a
manner never before possible. Order routers and market data vendors can
facilitate production of proprietary data products for single or
multiple BDs. The potential sources of proprietary products are
virtually limitless.
    The markets for order flow and proprietary data are inextricably
linked: A trading platform cannot generate market information unless it
receives trade orders. As a result, the competition for order flow
constrains the prices that platforms can charge for proprietary data
products. Firms make decisions on how much and what types of data to
consume based on the total cost of interacting with BX and other
exchanges. Data fees are but one factor in a total platform analysis.
If the cost of the product exceeds its expected value, the broker-
dealer will choose not to buy it. A supracompetitive increase in the
fees charged for either transactions or proprietary data has the
potential to impair revenues from both products. In this manner, the
competition for order flow will constrain prices for proprietary data
products.
    Competition among Distributors provides another form of price
discipline for proprietary data products. If the price of BX TotalView
were set above competitive levels, Distributors purchasing BX TotalView
would be at a disadvantage relative to their competitors, and would
therefore either curtail their purchase or forego the product
altogether.
    Market forces constrain the price of depth-of-book data such as BX
TotalView through the competition for order flow and in the competition
among vendors for customers. If the changes proposed herein are
unattractive to market participants, it is likely that the Exchange
will lose market share as a result. Accordingly, the Exchange does not
believe that the proposed changes will impair the ability of members or
competing order execution venues to maintain their competitive standing
in the financial markets.

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

    No written comments were either solicited or received.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act.\44\
---------------------------------------------------------------------------

    \44\ 15 U.S.C. 78s(b)(3)(A)(ii).
---------------------------------------------------------------------------

    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: (i)
Necessary or appropriate in the public interest; (ii) for the
protection of investors; or (iii) otherwise in furtherance of the
purposes of the Act. If the Commission takes such action, the
Commission shall institute proceedings to determine whether the
proposed rule should be approved or disapproved.

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 protected]. Please include
File Number SR-BX-2018-005 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-BX-2018-005. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (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 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-BX-2018-005 and should be submitted on
or before February 20, 2018.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\45\
---------------------------------------------------------------------------

    \45\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-01534 Filed 1-26-18; 8:45 am]
 BILLING CODE 8011-01-P