[Federal Register Volume 84, Number 151 (Tuesday, August 6, 2019)]
[Notices]
[Pages 38316-38319]
[FR Doc No: 2019-16719]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-86534; File No. SR-MIAX-2019-33]

Self-Regulatory Organizations; Miami International Securities
Exchange, LLC; Notice of Filing and Immediate Effectiveness of a
Proposed Rule Change To Amend Exchange Rule 520, Limitations on Orders

July 31, 2019.
    Pursuant to the provisions of 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 July 18, 2019, Miami International Securities
Exchange, LLC (``MIAX Options'' or the ``Exchange'') filed with the
Securities and Exchange Commission (``Commission'') a proposed rule
change as described in Items I and II below, which Items have been
prepared by the Exchange. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange is filing a proposal to amend Exchange Rule 520,
Limitations on Orders, to remove certain order entry restrictions
prohibiting Electronic Exchange Members \3\ from effectively operating
as Market Makers \4\ on the Exchange.
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    \3\ The term ``Electronic Exchange Member'' or ``EEM'' means the
holder of a Trading Permit who is not a Market Maker. Electronic
Exchange Members are deemed ``members'' under the Exchange Act. See
Exchange Rule 100.
    \4\ The term ``Market Makers'' refers to ``Lead Market Makers'',
``Primary Lead Market Makers'' and ``Registered Market Makers''
collectively. See Exchange Rule 100.
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    The text of the proposed rule change is available on the Exchange's
website at http://www.miaxoptions.com/rule-filings/ at MIAX Options'
principal office, 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 amend Exchange Rule 520, Limitations on
Orders, to remove certain order entry restrictions prohibiting EEMs
from effectively operating as Market Makers on the Exchange. Currently,
subsection (a)(1) of Exchange Rule 520 provides that the Exchange shall
designate classes in which EEMs may enter into the System,\5\ as
principal or as agent, buy and sell limit orders in the same option
series, for the account or accounts of the same or related beneficial
owners. Currently, subsection (a)(2) of Exchange Rule 520 provides
that, in all other classes, EEMs shall not enter into the System, as
principal or agent, limit orders in the same options series, for the
account or accounts of the same or related beneficial owners, in such a
manner that the EEM or the beneficial owner(s) effectively is operating
as a market maker by holding itself out as willing to buy and sell such
option contract on a regular or continuous basis. Subsection (a)(2)
further provides that in determining whether an EEM or beneficial owner
effectively is operating as a Market Maker, the Exchange will consider,
among other things: the simultaneous or near-simultaneous entry of
limit orders to buy and sell the same option contract; the multiple
acquisition and liquidation of positions in the same options series
during the same day; and the entry of multiple limit orders at
different prices in the same options series.
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    \5\ The term ``System'' means the automated trading system used
by the Exchange for the trading of securities. See Exchange Rule
100.
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    The Exchange now proposes to amend Exchange Rule 520(a) to delete
current subsection (a)(1) and to modify current subsection (a)(2) such
that, for all option classes, the restrictions prohibiting EEMs from
effectively operating as Market Makers will only be applicable to
Priority Customer Orders \6\ since Priority Customer Orders have
priority at any price over the bids and offers of non-Priority Customer
Orders. Current Exchange Rule 520(a)(2) was adopted to limit the
ability of Members that are not Market Makers to compete on
preferential terms within the Exchange's System. Because Priority
Customer Orders are provided with certain benefits such as priority of
bids and offers, the Exchange believes that Priority Customer Orders
should continue to be subject to the restrictions set out in current
Exchange Rule 520(a)(2). However, because broker-dealer orders do not
have priority over bids and offers of Market Makers, the Exchange no
longer believes it is necessary to impose the restrictions set out in
current Exchange Rule 520(a)(2) on the entry of broker-dealer orders.
Similarly, because Voluntary Professional orders do not have priority
over bids and offers of Market Makers, the Exchange does not believe it
is necessary to impose the restrictions set out in current Exchange
Rule 520(a)(2) on Voluntary Professional orders.\7\
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    \6\ The term ``Priority Customer Order'' means an order for the
account of a Priority Customer. See Exchange Rule 100. The term
``Priority Customer'' means a person or entity that (i) is not a
broker or dealer in securities, and (ii) does not place more than
390 orders in listed options per day on average during a calendar
month for its own beneficial account(s). The number of orders shall
be counted in accordance with Interpretation and Policy .01 of
Exchange Rule 100.
    \7\ The Exchange notes that this rule change would only
eliminate the restrictions of Exchange Rule 520(a)(2) in the manner
proposed. Members would continue to remain subject to the
requirements of Exchange Rule 303 (which requires Members to
establish, maintain and enforce written policies and procedures
reasonably designed, taking into consideration the nature of such
Member's business, to prevent the misuse of material, nonpublic
information by such Member or persons associated with such Member),
Exchange Rule 301, Interpretation and Policy .02 (which considers it
conduct inconsistent with just and equitable principles of trade for
any person associated with a Member who has knowledge of all
material terms and conditions of: (a) An order and a solicited
order, (b) an order being facilitated, or (c) orders being crossed,
the execution of which are imminent, to enter, based on such
knowledge, an order to buy or sell an option for the same underlying
security as any option that is the subject of the order, or an order
to buy or sell the security underlying such class, or any order to
buy or sell any related instrument until (1) the terms of the order
and any changes in the terms of the order of which the person
associated with the Member has knowledge are disclosed to the
trading crowd, or (2) the trade can no longer reasonably be
considered imminent in view of the passage of time since the order
was received); Exchange Rule 520(b) (which provides that EEMs may
not execute as principal orders they represent as agent unless (i)
agency orders are first exposed on the Exchange for at least one (1)
second, (ii) the EEM has been bidding or offering on the Exchange
for at least one (1) second prior to receiving an agency order that
is executable against such bid or offer, or (iii) the EEM utilizes
the MIAX PRIME pursuant to Rule 515A); and Exchange Rule 520(c)
(which provides that EEMs may not execute orders they represent as
agent on the Exchange against orders solicited from Members and non-
member broker-dealers to transact with such orders unless the
unsolicited order is first exposed on the Exchange for at least one
(1) second, or the EEM utilizes the MIAX PRIME or the PRIME
Solicitation Mechanism pursuant to Rule 515A).
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    Pursuant to this proposal, the Exchange will allow EEMs to enter
buy and sell limit orders in the same options series for the account or
accounts of the same beneficial owners, other than for

the account(s) of Priority Customers, and will no longer need to
designate specific classes for EEMs to engage in this type of activity.
Accordingly, the Exchange believes that subsection (a)(1) of the
current rule is no longer necessary and is redundant. Therefore, the
Exchange proposes to delete subsection (a)(1). Similarly, the Exchange
proposes to delete the beginning text of subsection (a)(2), which
states ``In all other classes,'' as this rule text is no longer
necessary in accordance with the Exchange's proposal to also delete
subsection (a)(1).
    Additionally, the Exchange proposes to insert text into the first
sentence of current Exchange Rule 520(a)(2) to specify that Priority
Customer Orders would continue to be subject to the restrictions of
that subsection. The Exchange proposes to delete the text in the first
sentence of current subsection (a)(2) regarding limit orders entered by
EEMs as principal or agent to clarify that all Priority Customer Orders
are subject to the restrictions of that subsection. The Exchange also
proposes to amend the hierarchical scheme in the first sentence of
current subsection (a)(2) to insert romanettes ``(i)'' and ``(ii)'' to
clarify the two conditions that must exist for the entry of Priority
Customer Orders to be subject to the restrictions of current subsection
(a)(2). The Exchange further proposes to delete the text in the first
sentence of current subsection (a)(2) that states ``or related'' when
referring to the account or accounts of the same beneficial owner. The
purpose of this change is to remove outdated rule text and to align the
Exchange's proposed rule with a competing options exchange that has a
rule consistent with this proposal.\8\ The Exchange believes this is a
non-substantive change and is consistent with the Exchange's proposal
to delete subsection (a)(1) of the rule. The Exchange does not believe
that deleting the text ``or related'' will not [sic] have any impact to
Members as the remaining text continues to apply to ``the account or
accounts of the same beneficial owner(s).'' The Exchange also proposes
to capitalize the term ``Market Maker'' throughout current subsection
(a)(2) to harmonize the rule text to the definition of Market Maker in
Exchange Rule 100 and clarify that the rule text of current subsection
(a)(2) refers to Market Makers on the Exchange. The Exchange proposes
to delete the term ``Electronic Exchange Member'' in the second
sentence of current subsection (a)(2) as the purpose of this proposed
rule change is to remove the restrictions of current subsection (a)(2)
as they currently pertain to EEMs effectively operating as Market
Makers. Additionally, the Exchange proposes to replace the term
``option contract'' throughout current subsection (a)(2) with the term
``security'' or ``securities,'' where appropriately used in the
singular or plural. The purpose of these proposed changes are to align
the Exchange's proposed rule with competing options exchanges that have
rules consistent with this proposal.\9\
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    \8\ See Cboe Exchange, Inc. Rules, CHAPTER VI. DOING BUSINESS ON
THE EXCHANGE FLOOR, Rule 6.8, Prohibition Against Customers
Functioning as Market-Makers; Securities Exchange Act Release No.
59700 (April 2, 2009), 67 FR 16246 (April 9, 2009)(SR-CBOE-2009-009)
(Order Approving a Proposed Rule Change To Amend its Rules
Prohibiting Members From Functioning as Market Makers).
    \9\ See id.; see also Nasdaq ISE, LLC, Options 3 Options Trading
Rules, Section 22(a); Securities Exchange Act Release No. 63017
(September 29, 2010), 75 FR 61795 (October 6, 2010)(SR-ISE-2010-95).
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    Further, Exchange Rule 520(a)(2) currently provides that, in
determining whether an EEM or beneficial owner effectively is operating
as a Market Maker, the Exchange will consider, among other things: The
simultaneous or near-simultaneous entry of limit orders to buy and sell
the same option contract; the multiple acquisition and liquidation of
positions in the same options during the same day; and the entry of
multiple limit orders at different prices in the same options series.
The Exchange proposes to remove the second condition pertaining to the
multiple acquisition and liquidation of positions from its list of
factors used for determining whether an EEM or beneficial owner is
operating as a Market Maker. In light of the proliferation of day
trading activity and the fact that such a prohibition does not exist on
other markets,\10\ the Exchange no longer believes this activity should
be considered a factor in determining whether an EEM or beneficial
owner is effectively acting as a Market Maker.
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    \10\ See id.
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    With the proposed changes, Exchange Rule 520(a) would be amended to
state as follows:

    Electronic Exchange Members shall not enter into the System
Priority Customer Orders in the same options series if (i) the orders
are limit orders for the account or accounts of the same beneficial
owner(s) and (ii) the limit orders are entered in such a manner that
the beneficial owner(s) effectively is operating as a Market Maker by
holding itself out as willing to buy and sell such securities on a
regular or continuous basis. In determining whether a beneficial owner
effectively is operating as a Market Maker, the Exchange will consider,
among other things, the simultaneous or near-simultaneous entry of
limit orders to buy and sell the same security and the entry of
multiple limit orders at different prices in the same security.

    Accordingly, the restrictions contained in current Exchange Rule
520(a)(2) against entering limit orders into the System would no longer
be applicable to EEMs, except when entering Priority Customer Orders
for account of the same beneficial owner. Further, current Exchange
Rule 520(a)(1) would be deleted in its entirety.
2. Statutory Basis
    The Exchange believes that its proposed rule change is consistent
with Section 6(b) of the Act \11\ in general, and furthers the
objectives of Section 6(b)(5) of the Act \12\ in particular, in that it
is designed to prevent fraudulent and manipulative acts and practices,
to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, to remove impediments to and
perfect the mechanisms of a free and open market and a national market
system and, in general, to protect investors and the public interest.
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    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes its proposal promotes just and equitable
principles of trade, removes impediments to and perfects the mechanisms
of a free and open market and a national market system, and in general,
protects investors and the public interest by removing the prohibition
on EEMs from entering limit orders in such a manner to effectively
operate as Market Makers will more freely permit the entry of orders by
EEMs, resulting in more orders on the Exchange. The increase in more
orders on the Exchange should increase liquidity on the Exchange, which
would benefit all market participants.
    The Exchange believes its proposal to prohibit EEMs from entering
Priority Customer Orders for the account of the same beneficial owner
such that the beneficial owner is effectively operating as a Market
Maker continues to promote just and equitable principles of trade
because Priority Customer Orders have priority over the bids and offers
of non-Priority Customer Orders. Because Priority Customers are
provided with

certain benefits such as priority of bids and offers, the Exchange
believes its proposal to continue to subject Priority Customer Orders
to the restrictions of current Exchange Rule 520(a)(2) will protect
investors and the public interest. The Exchange believes its proposal
to remove the restrictions of current subsection (a)(2) on EEMs
entering broker-dealer and Voluntary Professional orders in such a
manner that the EEM is effectively operating as a Market Maker promotes
just and equitable principles of trade because those orders do not
receive the same benefits as Priority Customer Orders, such as priority
of bids and offers.
    Similarly, the Exchange believes its proposal to delete subsection
(a)(1) and specific text in subsection (a)(2) promotes just and
equitable principles of trade, removes impediments to and perfects the
mechanisms of a free and open market and a national market system, and
in general, protects investors and the public interest by removing
provisions of the rule text that no longer apply in light of the
Exchange's proposal to allow EEMs to enter buy and sell limit orders in
the same options series for the account or accounts of the same
beneficial owners, other than for the account(s) of Priority Customers.
Accordingly, the Exchange will no longer need to designate specific
classes for EEMs to engage in this type of market making activity
pursuant to subsection (a)(1). This proposed change will provide
greater clarity to Members and the public regarding the Exchange's
rules and it is in the public interest for rules to be accurate and
concise so as to eliminate the potential for confusion.
    The Exchange believes its proposal to remove the second condition
pertaining to the multiple acquisition and liquidation of positions
from its list of factors used for determining whether an EEM or
beneficial owner is operating as a Market Maker promotes just and
equitable principles of trade, removes impediments to and perfects the
mechanisms of a free and open market and a national market system, and
in general, protects investors and the public interest because of the
proliferation of day trading activity and the fact that such a
prohibition does not exist on other markets.\13\
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    \13\ See supra note 9.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.
Intra-Market Competition
    Specifically, the Exchange believes that removing the prohibition
on EEMs from entering limit orders such that EEMs may enter limit
orders in such a manner to effectively operate as Market Makers will
further promote competition on the Exchange, increase order flow and
liquidity, leading to tighter, more efficient markets to the benefit of
all market participants.
    The Exchange believes that the prohibition on EEMs from entering
Priority Customer Orders for the account of the same beneficial owner
such that the beneficial owner is effectively operating as a Market
Maker does not impose any burden on competition that is not necessary
or appropriate because Priority Customers are provided with certain
benefits such as priority of bids and offers that are not shared by
other market participants.
Inter-Market Competition
    The Exchange believes that its proposal to remove the prohibition
on EEMs from entering limit orders such that EEMs may enter limit
orders in such a manner to effectively operate as Market Makers will
not impose any burden on intermarket competition not necessary or
appropriate in furtherance of the purposes of the Act because of the
proliferation of day trading activity and the fact that such a
prohibition does not exist on other markets.

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

    Written comments were neither solicited nor received.

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

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A) of the Act \14\ and Rule 19b-
4(f)(6) thereunder.\15\
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    \14\ 15 U.S.C. 78s(b)(3)(A).
    \15\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of the proposed rule change, at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
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    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act \16\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6)(iii) \17\ permits the
Commission to designate a shorter time if such action is consistent
with the protection of investors and the public interest. The Exchange
has requested that the Commission waive the 30-day operative delay so
that the proposed rule change may become operative upon filing. Waiver
of the operative delay would allow the Exchange to immediately
harmonize with similar rules on other exchanges that allow EEMs to
effectively operate as Market Makers. Therefore, the Commission
believes that waiver of the 30-day operative delay is consistent with
the protection of investors and the public interest. Accordingly, the
Commission hereby waives the operative delay and designates the
proposed rule change operative upon filing.\18\
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    \16\ 17 CFR 240.19b-4(f)(6).
    \17\ 17 CFR 240.19b-4(f)(6)(iii).
    \18\ For purposes only of waiving the 30-day operative delay,
the Commission also has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule change 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_ADDRESS>Please include
File Number SR-MIAX-2019-33 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-MIAX-2019-33. 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-MIAX-2019-33, and should be submitted on
or before August 27, 2019.
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    \19\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\19\
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2019-16719 Filed 8-5-19; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 85, Number 191 (Thursday, October 1, 2020)]
[Notices]
[Pages 62011-62012]
[FR Doc No: 2020-21682]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2020-0087]

Qualification of Drivers; Exemption Applications; Implantable
Cardioverter Defibrillator

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of denials.

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SUMMARY: FMCSA announces its decision to deny applications from five
individuals treated with Implantable Cardioverter Defibrillators (ICDs)
who requested an exemption from the Federal Motor Carrier Safety
Regulations (FMCSRs) prohibiting operation of a commercial motor
vehicle (CMV) in interstate commerce by persons with a current clinical
diagnosis of myocardial infarction, angina pectoris, coronary
insufficiency, thrombosis, or any other cardiovascular disease of a
variety known to be accompanied by syncope (transient loss of
consciousness), dyspnea (shortness of breath), collapse, or congestive
heart failure.

FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief,
Medical Programs Division,<PHONE_NUMBER><EMAIL_ADDRESS>FMCSA,
Department of Transportation, 1200 New Jersey Avenue SE, Room W64-224,
Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m.,
ET, Monday through Friday, except Federal holidays. If you have
questions regarding viewing materials in the docket, contact Docket
Operations,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Public Participation

A. Viewing Documents and Comments

    To view comments, as well as any documents mentioned in this notice
as being available in the docket, go to http://www.regulations.gov/docket?D=FMCSA-2020-0087 and choose the document to review. If you do
not have access to the internet, you may view the docket online by
visiting the Docket Operations in Room W12-140 on the ground floor of
the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590,
between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal
holidays. To be sure someone is there to help you, please call (202)
366-9317 or<PHONE_NUMBER> before visiting Docket Operations.

B. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.

II. Background

    On April 15, 2020, FMCSA published a Federal Register notice (85 FR
21061) announcing receipt of applications from five individuals treated
with ICDs and requested comments from the public. These five
individuals requested an exemption from 49 CFR 391.41(b)(4) which
prohibits operation of a CMV in interstate commerce by persons with a
current clinical diagnosis of myocardial infarction, angina pectoris,
coronary insufficiency, thrombosis, or any other cardiovascular disease
of a variety known to be accompanied by syncope, dyspnea, collapse, or
congestive heart failure. The public comment period closed on May 15,
2020 and four comments were received. On May 19, 2020 FMCSA published a
correction notice in the Federal Register (85 FR 30007) to fix an error
in the April 15, 2020 notice. This correction notice extended the
comment period for an additional 30 days until June 15, 2020 and there
were no additional comments received.
    FMCSA has evaluated the eligibility of these applicants and
concluded that granting these five exemption requests would not provide
a level of safety that would be equivalent to, or greater than, the
level of safety that would be obtained by complying with Sec.
391.41(b)(4). A summary of each applicant's medical history related to
their ICD exemption request was discussed in the April 15, 2020 and May
19, 2020, Federal Register notices and will not be repeated here.
    The Agency's decision regarding these exemption applications is
based on information from the Cardiovascular Medical Advisory Criteria,
an April 2007 evidence report titled ``Cardiovascular Disease and
Commercial Motor Vehicle Driver Safety,'' and a December 2014 focused
research report titled ``Implantable Cardioverter Defibrillators and
the Impact of a Shock in a Patient When Deployed.'' \1\ Copies of these
reports are included in the docket for this notice.
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    \1\ The reports are available on the internet at https://rosap.ntl.bts.gov/view/dot/16462; https://rosap.ntl.bts.gov/view/dot/21199.
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    FMCSA has published Medical Advisory Criteria to assist medical
examiners in determining whether drivers with certain medical
conditions are qualified to operate a CMV in interstate commerce.\2\
The Medical Advisory Criteria for Sec.  391.41(b)(4) indicates that
coronary artery bypass surgery and pacemaker implantation are remedial
procedures and thus, not medically disqualifying. Implantable
cardioverter defibrillators are disqualifying due to risk of syncope.
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    \2\ These criteria may be found in 49 CFR part 391, APPENDIX A
TO PART 391--MEDICAL ADVISORY CRITERIA, section D. Cardiovascular:
Sec.  391.41(b)(4), paragraph 4, which is available on the internet
at https://www.gpo.gov/fdsys/pkg/CFR-2015-title49-vol5/pdf/CFR-2015-title49-vol5-part391-appA.pdf.
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III. Discussion of Comments

    FMCSA received four comments in this proceeding. Two of the four
commenters were favorable towards the applicants continuing to drive
CMVs with ICDs. Another commenter indicated that the cost and overall
safety impact of granting an exemption to an individual who has an ICD
would result

in financial loss for the company if the individual has a crash and
causes a casualty. The Minnesota Department of Public Safety commented
that there was no record of a CDL driver in Minnesota by the name of
Theodore J. Engelke.
    In response to the comments, FMCSA believes that a driver with an
ICD is at risk for incapacitation if the device discharges. This risk
is combined with the risks associated with the underlying
cardiovascular condition for which the ICD was implanted either as a
primary or secondary preventive measure. In the correction notice
discussed above, the State of Domicile for Mr. Theodore J. Engelke was
changed from Minnesota to Wisconsin.

IV. Basis for Exemption Determination

    Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption
from the FMCSRs for no longer than a 5-year period if it finds such
exemption would likely achieve a level of safety that is equivalent to,
or greater than, the level that would be achieved absent such
exemption. The statute also allows the Agency to renew exemptions at
the end of the 5-year period. FMCSA grants medical exemptions from the
FMCSRs for a 2-year period to align with the maximum duration of a
driver's medical certification.
    The Agency's decision regarding these exemption applications is
based on an individualized assessment of each applicant's medical
information, available medical and scientific data concerning ICDs, and
any relevant public comments received.
    In the case of persons with ICDs, the underlying condition for
which the ICD was implanted places the individual at high risk for
syncope or other unpredictable events known to result in gradual or
sudden incapacitation. ICDs may discharge, which could result in loss
of ability to safely control a CMV. The December 2014 focused research
report discussed earlier upholds the findings of the April 2007 report
and indicates that the available scientific data on persons with ICDs
and CMV driving does not support that persons with ICDs who operate
CMVs are able to meet an equal or greater level of safety.

V. Conclusion

    The Agency has determined that the available medical and scientific
literature and research provides insufficient data to enable the Agency
to conclude that granting these exemptions would achieve a level of
safety equivalent to, or greater than, the level of safety maintained
without the exemption. Therefore, the following five applicants have
been denied exemptions from the physical qualification standards in
Sec.  391.41(b)(4):

Cory Brister (MS)
Christopher K. Chrestman (MS)
Theodore J. Engelke (WI)
Charles Michaux (CA)
John Warner (CO)

    Each applicant has, prior to this notice, received a letter of
final disposition regarding his/her exemption request. Those decision
letters fully outlined the basis for the denial and constitute final
action by the Agency. The list published today summarizes the Agency's
recent denials as required under 49 U.S.C. 31315(b)(4).

Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2020-21682 Filed 9-30-20; 8:45 am]
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