[Federal Register Volume 81, Number 66 (Wednesday, April 6, 2016)]
[Notices]
[Pages 20016-20021]
[FR Doc No: 2016-07832]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-77487; File No. SR-BATS-2015-105]

Self-Regulatory Organizations; BATS Exchange, Inc.; Order
Granting Approval of Proposed Rule Change, as Modified by Amendment
Nos. 1, 2, and 3 Thereto, To List and Trade Shares of the Elkhorn S&P
GSCI Dynamic Roll Commodity ETF of Elkhorn ETF Trust

March 31, 2016.

I. Introduction

    On December 18, 2015, BATS Exchange, Inc. (``Exchange'' or
``BATS'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to list and trade shares (``Shares'') of the
Elkhorn S&P GSCI Dynamic Roll Commodity ETF (``Fund'') of Elkhorn ETF
Trust (``Trust'') under BATS Rule 14.11(i). The proposed rule change
was published for comment in the Federal Register on January 4,
2016.\3\ On February 17, 2016, pursuant to Section 19(b)(2) of the
Act,\4\ the Commission designated a longer period within which to
approve the proposed rule change, disapprove the proposed rule change,
or institute proceedings to determine whether to disapprove the
proposed rule change.\5\ On February 18, 2016, the Exchange filed
Amendment No. 1 to the proposed rule change.\6\ On February 24, 2016,
the Exchange filed Amendment No. 2 to the proposed rule change.\7\ On
March 22, 2016, the Exchange filed Amendment No. 3 to the proposed rule
change.\8\ The Commission received no comments on the proposal. This
order grants approval of the proposed rule change, as modified by
Amendment Nos. 1, 2, and 3 thereto.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 76776 (Dec. 28,
2015), 81 FR 120 (``Notice'').
    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release No. 77159, 81 FR 9041
(Feb. 23, 2016). The Commission designated April 1, 2016 as the date
by which the Commission shall either approve or disapprove, or
institute proceedings to determine whether to disapprove, the
proposed rule change. See id.
    \6\ In Amendment No. 1, which amended and replaced the proposed
rule change in its entirety, the Exchange clarified the scope of the
non-exchange-traded investment companies, futures, and exchange-
traded options on futures to be held by the Fund and the Subsidiary.
Because Amendment No. 1 to the proposed rule change does not
materially alter the substance of the proposed rule change or raise
unique or novel regulatory issues, Amendment No. 1 is not subject to
notice and comment (Amendment No. 1 to the proposed rule change is
available at: https://www.sec.gov/comments/sr-bats-2015-105/bats2015105-2.pdf).
    \7\ In Amendment No. 2, which amended and replaced the proposed
rule change, as modified by Amendment No. 1 thereto, in its
entirety, the Exchange clarified: (a) That the Fund and the
Subsidiary would not invest in leveraged or inverse leveraged
securities of investment companies; (b) that the commodity-linked
instruments in which the Fund invests will be listed and traded in
the U.S. on registered exchanges; (c) that, for surveillance, the
Exchange would be able to obtain information regarding trading in
the underlying commodity-linked instruments; and (d) the scope of
exchange-traded options on futures contracts to be held by the Fund
and Subsidiary. Because Amendment No. 2 to the proposed rule change
does not materially alter the substance of the proposed rule change
or raise unique or novel regulatory issues, Amendment No. 2 is not
subject to notice and comment (Amendment No. 2 to the proposed rule
change is available at: https://www.sec.gov/comments/sr-bats-2015-105/bats2015105-1.pdf).
    \8\ In Amendment No. 3 to the proposed rule change, the Exchange
clarified that: (a) All statements and representations made in the
proposal shall constitute continued listing requirements for listing
the Shares on the Exchange; (b) the issuer will advise the Exchange
of any failure by the Fund to comply with the continued listing
requirements; (c) pursuant to its obligations under Section 19(g)(1)
of the Act, the Exchange will surveil for compliance with the
continued listing requirements; and (d) if the Fund is not in
compliance with the applicable listing requirements, the Exchange
will commence delisting procedures under Exchange Rule 14.12.
Because Amendment No. 3 does not materially alter the substance of
the proposed rule change or raise unique or novel regulatory issues,
Amendment No. 3 is not subject to notice and comment (Amendment No.
3 to the proposed rule change is available at: https://www.sec.gov/comments/sr-bats-2015-105/bats2015105-3.pdf).

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II. Exchange's Description of the Proposed Rule Change

    The Exchange proposes to list and trade the Shares of the Fund
pursuant to BATS Rule 14.11(i), which governs the listing and trading
of Managed Fund Shares on the Exchange. The Shares will be offered by
the Trust, which was established as a Massachusetts business trust on
December 12, 2013.\9\ Elkhorn Investments, LLC will be the investment
adviser (``Adviser'') to the Fund. It is currently anticipated that
day-to-day portfolio management for the Fund will be provided by the
Adviser. However, the Fund and the Adviser may contract with an
investment sub-adviser (``Sub-Adviser'') to provide day-to-day
portfolio management for the Fund. ALPS Distributors, Inc. will be the
principal underwriter and distributor of the Fund's Shares. The Fund
will contract with unaffiliated third parties to provide
administrative, custodial and transfer agency services to the Fund. The
Exchange represents the Adviser is not a broker-dealer, but is
affiliated with a broker-dealer, and it has implemented a fire wall
with respect to its broker-dealer affiliate regarding access to
information concerning the composition of, or changes to, the Fund's
portfolio.\10\
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    \9\ The Exchange represents that the Trust is registered under
the Investment Company Act of 1940 (``1940 Act''). See Registration
Statement on Form N-1A for the Trust, dated November 10, 2015 (File
Nos. 333-201473 and 811-22926) (``Registration Statement''). The
Exchange further states that the Trust has obtained certain
exemptive relief under the 1940 Act.
    \10\ See BATS Rule 14.11(i)(7). The Exchange further represents
that, in the event that (a) the Adviser or a Sub-Adviser becomes, or
becomes newly affiliated with, a broker-dealer or registers as a
broker-dealer, or (b) any new adviser or sub-adviser is a registered
broker-dealer or becomes affiliated with a broker-dealer, it will
implement a fire wall with respect to its relevant personnel or such
broker-dealer affiliate, as applicable, regarding access to
information concerning the composition of, or changes to, the
portfolio, and will be subject to procedures designed to prevent the
use and dissemination of material, non-public information regarding
such portfolio.
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A. Exchange's Description of the Fund's Investments \11\
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    \11\ The Commission notes that additional information regarding
the Fund, the Trust, the Subsidiary (as defined herein), and the
Shares, including investment strategies, risks, creation and
redemption procedures, fees, portfolio holdings disclosure policies,
calculation of net asset value (``NAV''), distributions, and taxes,
among other things, can be found in the Notice and the Registration
Statement, as applicable. See Notice and Registration Statement,
supra notes 3 and 9, respectively.
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    According to the Exchange, the Fund's investment objective will be
to provide total return which exceeds that of the S&P GSCI Dynamic Roll
Index (``Benchmark'') \12\ consistent with prudent investment
management.\13\ The Fund will seek excess return above the Benchmark
through the active management of a short duration portfolio of highly
liquid, high quality bonds.
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    \12\ The Benchmark is developed, maintained, and sponsored by
S&P Dow Jones Indices LLC (``S&P Indices'').
    \13\ According to the Exchange, the Benchmark currently contains
24 commodity futures on physical commodities across five sectors:
energy, agriculture; livestock; industrial metals; and precious
metals. See Notice, supra note 3 (providing additional information
regarding the Benchmark and its components, including a table
describing each of the commodities underlying the futures contracts
included in the Benchmark as of October 31, 2015, and each
instrument's trading hours, exchange, and ticker symbol).
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    The Fund will be an actively managed fund that seeks to achieve its
investment objective by investing, under normal market conditions,\14\
in exchange-traded commodity futures contracts, centrally cleared and
non-centrally cleared swaps,\15\ exchange-traded options on futures
contracts, and exchange-traded commodity-linked instruments \16\
(collectively, ``Commodities'') through a wholly-owned subsidiary
controlled by the Fund and organized under the laws of the Cayman
Islands (``Subsidiary''), thereby obtaining exposure to the commodities
markets.
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    \14\ The term ``under normal market conditions'' includes, but
is not limited to, the absence of extreme volatility or trading
halts in the fixed income markets, futures markets or the financial
markets generally; operational issues causing dissemination of
inaccurate market information; or force majeure type events such as
systems failure, natural or man-made disaster, act of God, armed
conflict, act of terrorism, riot or labor disruption, or any similar
intervening circumstance.
    \15\ Investments in non-centrally cleared swaps (through the
Subsidiary) will not represent more than 20% of the Fund's net
assets. When investing in non-centrally cleared swaps, the
Subsidiary will seek, where possible, to use counterparties, as
applicable, whose financial status is such that the risk of default
is reduced; however, the risk of losses resulting from default is
still possible. The Adviser and/or a Sub-Adviser will evaluate the
creditworthiness of counterparties on an ongoing basis. In addition
to information provided by credit agencies, the Adviser's and/or a
Sub-Adviser's analysis will evaluate each approved counterparty
using various methods of analysis and may consider such factors as
the counterparty's liquidity, its reputation, the Adviser's and/or a
Sub-Adviser's past experience with the counterparty, its known
disciplinary history and its share of market participation.
    \16\ Exchange-traded commodity-linked instruments include only
the following: (1) Funds that provide exposure to commodities as
would be listed under Exchange Rules 14.11(b), (c), and (i); and (2)
pooled investment vehicles that invest primarily in commodities and
commodity-linked instruments as would be listed under Exchange Rules
14.11(d) and 14.11(e)(2), (4), (6), (7), (8), (9), and (10).
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    The Fund's Commodities investments, in part, will be comprised of
exchange-traded futures contracts on commodities that comprise the
Benchmark. Although the Fund, through the Subsidiary, will generally
hold many of the futures contracts included in the Benchmark, the Fund
and the Subsidiary will be actively managed and will not be obligated
to invest in all of (or to limit investments solely to) such futures
contracts. In addition, with respect to investments in exchange-traded
futures contracts, the Fund and the Subsidiary will not be obligated to
invest in the same amount or proportion as the Benchmark, or be
obligated to track the performance of the Benchmark. In addition to
exchange-traded futures contracts, the Fund's Commodities investments
will also be comprised of the following: centrally cleared and non-
centrally cleared swaps on commodities; exchange-traded options on
futures contracts that provide exposure to the investment returns of
the commodities markets; and exchange-traded commodity-linked
instruments, without investing directly in physical commodities.
    The Fund will invest in Commodities through investments in the
Subsidiary and will not invest directly in physical commodities. The
Fund's investment in the Subsidiary may not exceed 25% of the Fund's
total assets. In addition to Commodities, the Fund's assets will be
invested in: (1) short-term, investment grade fixed income securities,
including only the following instruments: U.S. government and agency
securities,\17\ corporate debt obligations,\18\ and repurchase
agreements;\19\ (2) money market instruments; \20\ (3) investment

companies (other than those that are commodity-linked instruments),\21\
including both exchange traded and non-exchange-traded investment
companies, that provide exposure to commodities, equity securities, and
fixed income securities to the extent permitted under the 1940 Act and
any applicable exemptive relief; \22\ (4) certain bank instruments;
\23\ and (5) cash and other cash equivalents (collectively, ``Other
Investments''). The Fund will use the Other Investments as investments,
to provide liquidity, and to collateralize the Subsidiary's commodity
exposure on a day-to-day basis.
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    \17\ Such securities are securities that are issued or
guaranteed by the U.S. Treasury, by various agencies of the U.S.
government, or by various instrumentalities, which have been
established or sponsored by the U.S. government. U.S. Treasury
obligations are backed by the ``full faith and credit'' of the U.S.
government. Securities issued or guaranteed by federal agencies and
U.S. government-sponsored instrumentalities may or may not be backed
by the full faith and credit of the U.S. government.
    \18\ At least 75% of corporate debt obligations will have a
minimum principal amount outstanding of $100 million or more.
    \19\ The Fund intends to enter into repurchase agreements only
with financial institutions and dealers believed by the Adviser and/
or a Sub-Adviser to present minimal credit risks in accordance with
criteria approved by the Trust's Board of Trustees (``Board''). The
Adviser and/or a Sub-Adviser will review and monitor the
creditworthiness of such institutions. The Adviser and/or a Sub-
Adviser will monitor the value of the collateral at the time the
transaction is entered into and at all times during the term of the
repurchase agreement.
    \20\ For the Fund's purposes, money market instruments will
include only the following instruments: short-term, high-quality
securities issued or guaranteed by non-U.S. governments, agencies
and instrumentalities; non-convertible corporate debt securities
with remaining maturities of not more than 397 days that satisfy
ratings requirements under Rule 2a-7 under the 1940 Act; money
market mutual funds; and deposits and other obligations of U.S. and
non-U.S. banks and financial institutions. In addition, the Fund may
invest in commercial paper (short-term unsecured promissory notes),
but only if the commercial paper has received the highest rating
from at least one nationally recognized statistical rating
organization or, if unrated, has been judged by the Adviser and/or a
Sub-Adviser to be of comparable quality.
    \21\ According to the Exchange, the Fund may invest in the
securities of certain other investment companies in excess of the
limits imposed under the 1940 Act pursuant to an exemptive order
obtained by the Trust and the Adviser from the Commission. The
exchange-traded investment companies in which the Fund may invest
include Index Fund Shares (as described in Rule 14.11(c)), Portfolio
Depository Receipts (as described in Rule 14.11(b)), and Managed
Fund Shares (as described in Rule 14.11(i)). The non-exchange-traded
investment companies in which the Fund may invest include all non-
exchange-traded investment companies that are not money market
mutual funds, as described above. While the Fund and the Subsidiary
may invest in inverse commodity-linked instruments and securities of
investment companies, the Fund and the Subsidiary will not invest in
leveraged or inverse leveraged (e.g., 2X or -3X) commodity-linked
instruments or securities of investment companies.
    \22\ The exchange-traded investment companies and commodity-
linked instruments in which the Fund invests will be listed and
traded in the U.S. on registered exchanges.
    \23\ The term ``certain bank instruments'' includes only the
following instruments: certificates of deposit issued against funds
deposited in a bank or savings and loan association; bankers'
acceptances, which are short-term credit instruments used to finance
commercial transactions; and bank time deposits, which are monies
kept on deposit with banks or savings and loan associations for a
stated period of time at a fixed rate of interest.
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    The Fund's investment in the Subsidiary will be designed to help
the Fund achieve exposure to commodity returns in a manner consistent
with the federal tax requirements applicable to the Fund and other
regulated investment companies. The Fund intends to qualify for, and to
elect to be treated as, a separate regulated investment company under
Subchapter M of the Internal Revenue Code.

B. Exchange's Description of the Subsidiary's Investments

    The Subsidiary will generally seek to make investments in
Commodities, and its portfolio will be managed by the Adviser or a Sub-
Adviser.\24\ The Adviser or a Sub-Adviser will use its discretion to
determine the percentage of the Fund's assets allocated to the
Commodities held by the Subsidiary that will be invested in exchange-
traded commodity futures contracts, centrally cleared and non-centrally
cleared swaps, exchange-traded options on futures contracts, and
exchange-traded commodity-linked instruments. In this regard, under
normal market conditions, the Subsidiary is expected, as a general
matter, to invest in futures contracts in proportional weights and
allocations that are similar to the Benchmark, as well as in the other
Commodities. Additionally, the Subsidiary, like the Fund, may invest in
Other Investments (e.g., as investments, to serve as margin or
collateral, or to otherwise support the Subsidiary's positions in
Commodities).
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    \24\ The Exchange states that the Subsidiary will not be
registered under the 1940 Act and will not be directly subject to
its investor protections, except as noted in the Registration
Statement. However, the Subsidiary will be wholly-owned and
controlled by the Fund. Therefore, the Fund's ownership and control
of the Subsidiary will prevent the Subsidiary from taking action
contrary to the interests of the Fund or its shareholders. The Board
will have oversight responsibility for the investment activities of
the Fund, including its expected investment in the Subsidiary, and
the Fund's role as the sole shareholder of the Subsidiary. The
Subsidiary will also enter into separate contracts for the provision
of custody, transfer agency, and accounting agent services with the
same or with affiliates of the same service providers that provide
those services to the Fund.
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    The Fund's investment in the Subsidiary is intended to provide the
Fund with exposure to commodity markets within the limits of current
federal income tax laws applicable to investment companies such as the
Fund, which limit the ability of investment companies to invest
directly in the derivative instruments. The Subsidiary will have the
same investment objective as the Fund, but unlike the Fund, it may
invest without limitation in Commodities. The Subsidiary's investments
will provide the Fund with exposure to domestic and international
markets.

C. Exchange's Description of Commodities Regulation

    The Commodity Futures Trading Commission (``CFTC'') has adopted
substantial amendments to CFTC Rule 4.5 relating to the permissible
exemptions and conditions for reliance on exemptions from registration
as a commodity pool operator. As a result of the instruments that will
be indirectly held by the Fund, the Adviser will register as a
commodity pool operator and will also become a member of the National
Futures Association (``NFA''). Any Sub-Adviser will register as a
commodity pool operator or commodity trading adviser, as required by
CFTC regulations. The Fund and the Subsidiary will be subject to
regulation by the CFTC and NFA and additional disclosure, reporting,
and recordkeeping rules imposed upon commodity pools.

D. Exchange's Description of the Fund's Investment Restrictions

    While the Fund will be permitted to borrow as permitted under the
1940 Act, the Fund's investments will not be used to seek performance
that is the multiple or inverse multiple (i.e., 2X and -3X) of the
Benchmark. In addition, the Fund may not invest more than 25% of the
value of its total assets in securities of issuers in any one industry
or group of industries. This restriction will not apply to obligations
issued or guaranteed by the U.S. government, its agencies or
instrumentalities, or securities of other investment companies.
    The Subsidiary's shares will be offered only to the Fund, and the
Fund will not sell shares of the Subsidiary to other investors. The
Fund and the Subsidiary will not invest in any non-U.S. equity
securities (other than shares of the Subsidiary). The Fund will not
purchase securities of open-end or closed-end investment companies,
except in compliance with the 1940 Act or any applicable exemptive
relief. In addition, the Exchange represents that, with respect to the
futures contracts and exchange-traded options on futures contracts in
which the Subsidiary invests, not more than 10% of the weight (to be
calculated as the value of the contract divided by the total absolute
notional value of the Subsidiary's futures and options contracts) of
the futures and options contracts held by the Subsidiary, in the
aggregate, shall consist of instruments whose principal trading market
is a market from which the Exchange may not obtain information
regarding trading in the futures contracts and exchange-traded options
on futures contracts by virtue of: (a) Its membership in the
Intermarket Surveillance Group (``ISG''); or (b) a comprehensive
surveillance sharing agreement.
    The Fund may hold up to an aggregate amount of 15% of its net
assets in illiquid assets (calculated at the time of investment),
including securities deemed illiquid by the Adviser.\25\ The

Fund will monitor its portfolio liquidity on an ongoing basis to
determine whether, in light of current circumstances, an adequate level
of liquidity is being maintained, and will consider taking appropriate
steps in order to maintain adequate liquidity if, through a change in
values, net assets, or other circumstances, more than 15% of the Fund's
net assets are held in illiquid assets. Illiquid assets include
securities subject to contractual or other restrictions on resale and
other instruments that lack readily available markets, as determined in
accordance with Commission staff guidance.
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    \25\ In reaching liquidity decisions, the Adviser may consider
the following factors: The frequency of trades and quotes for the
security; the number of dealers wishing to purchase or sell the
security and the number of other potential purchasers; dealer
undertakings to make a market in the security; and the nature of the
security and the nature of the marketplace trades (e.g., the time
needed to dispose of the security, the method of soliciting offers,
and the mechanics of transfer).
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III. Discussion and Commission's Findings

    The Commission has carefully reviewed the proposed rule change and
finds that it is consistent with the requirements of Section 6 of the
Act \26\ and the rules and regulations thereunder applicable to a
national securities exchange.\27\ In particular, the Commission finds
that the proposal is consistent with Section 6(b)(5) of the Act,\28\
which requires, among other things, that the Exchange's rules be
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 facilitating transactions in
securities, to remove impediments to and perfect the mechanism of a
free and open market and a national market system, and, in general, to
protect investors and the public interest.
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    \26\ 15 U.S.C. 78f.
    \27\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \28\ 15 U.S.C. 78f(b)(5).
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    The Commission also finds that the proposal is consistent with
Section 11A(a)(1)(C)(iii) of the Act,\29\ which sets forth the finding
of Congress that it is in the public interest and appropriate for the
protection of investors and the maintenance of fair and orderly markets
to assure the availability to brokers, dealers, and investors of
information with respect to quotations for, and transactions in,
securities. Quotation and last-sale information for the Shares will be
available on the facilities of the Consolidated Tape Association
(``CTA''). An estimated value, defined in BATS Rule 14.11(i)(3)(C) as
the Intraday Indicative Value (``IIV''), that reflects an estimated
intraday value of the Fund's portfolio (including the Subsidiary's
portfolio), will be disseminated. The IIV will be based upon the
current value for the components of the Disclosed Portfolio (as defined
below) and will be updated and widely disseminated by one or more major
market data vendors and broadly displayed at least every 15 seconds
during the Exchange's Regular Trading Hours.\30\ On each business day,
before commencement of trading in Shares during Regular Trading
Hours,\31\ the Fund will disclose on its Web site the identities and
quantities of the portfolio of securities, Commodities, and other
assets (``Disclosed Portfolio'' as defined in Rule 14.11(i)(3)(B)) held
by the Fund and the Subsidiary that will form the basis for the Fund's
calculation of NAV at the end of the business day.\32\ The NAV of the
Fund's Shares generally will be calculated once daily Monday through
Friday as of the close of regular trading on the New York Stock
Exchange, generally 4:00 p.m. Eastern Time.\33\ Additionally,
information regarding market price and volume of the Shares will be
continually available on a real-time basis throughout the day on
brokers' computer screens and other electronic services. The previous
day's closing price and trading volume information for the Shares will
also be published daily in the financial section of newspapers. Intra-
day executable price quotations on the securities and other assets held
by the Fund and the Subsidiary will be available from major broker-
dealer firms or on the exchange on which they are traded, as
applicable. Intra-day price information on the securities and other
assets held by the Fund and the Subsidiary will also be available
through subscription services,

such as Bloomberg and Thomson Reuters, which can be accessed by
authorized participants and other investors.\34\ Daily trading volume
information for the Fund will also be available in the financial
section of newspapers, through subscription services such as Bloomberg,
Thomson Reuters, and International Data Corporation, which can be
accessed by authorized participants and other investors, as well as
through other electronic services, including major public Web sites.
The Fund's Web site will include a form of the prospectus for the Fund
and additional data relating to NAV and other applicable quantitative
information. Information relating to the Benchmark, including its
constituents, weightings, and changes to its constituents, will be
available on the Web site of S&P Indices.
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    \29\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
    \30\ According to the Exchange, several major market data
vendors display and/or make widely available Intraday Indicative
Values published via the CTA or other data feeds.
    \31\ Regular Trading Hours are 9:30 a.m. to 4:00 p.m. Eastern
Time.
    \32\ According to the Exchange, the Fund's disclosure of
derivative positions in the Disclosed Portfolio will include
information that market participants can use to value these
positions intraday. On a daily basis, the Disclosed Portfolio
displayed on the Fund's Web site will include the following
information regarding each portfolio holding, as applicable to the
type of holding: Ticker symbol, CUSIP number or other identifier, if
any; a description of the holding (including the type of holding,
such as the type of swap), the identity of the security, commodity,
or other asset or instrument underlying the holding, if any; for
options, the option strike price; quantity held (as measured by, for
example, par value, notional value, or number of shares, contracts,
or units); maturity date, if any; coupon rate, if any; effective
date, if any; market value of the holding; and percentage weighting
of the holding in the Fund's portfolio. The Web site and information
will be publicly available at no charge.
    \33\ In determining the value of the assets held by the Fund and
the Subsidiary, the Fund's and the Subsidiary's investments will be
generally valued using market valuations. A market valuation
generally means a valuation (i) obtained from an exchange, a pricing
service, or a major market maker (or dealer), (ii) based on a price
quotation or other equivalent indication of value supplied by an
exchange, a pricing service, or a major market maker (or dealer), or
(iii) based on amortized cost. The Fund and the Subsidiary may use
various pricing services or discontinue the use of any pricing
service. A price obtained from a pricing service based on such
pricing service's valuation matrix may be considered a market
valuation. If available, debt securities and money market
instruments with maturities of more than 60 days will typically be
priced based on valuations provided by independent, third party
pricing agents. Such values will generally reflect the last reported
sales price if the security is actively traded. The third party
pricing agents may also value debt securities at an evaluated bid
price by employing methodologies that utilize actual market
transactions, broker supplied valuations, or other methodologies
designed to identify the market value for such securities. Debt
obligations with remaining maturities of 60 days or less may be
valued on the basis of amortized cost, which approximates market
value. If such prices are not available, the security will be valued
based on values supplied by independent brokers or by fair value
pricing, as described below. Futures contracts will be valued at the
settlement price established each day by the board or exchange on
which they are traded. Exchange-traded options will be valued at the
closing price in the market where such contracts are principally
traded. Swaps will be valued based on valuations provided by
independent, third-party pricing agents. Securities of non-exchange-
traded investment companies will be valued at NAV. Equity securities
listed on a securities exchange (including exchange-traded commodity
linked instruments and exchange-traded investment companies), market
or automated quotation system for which quotations are readily
available (except for securities traded on The NASDAQ Stock Market
LLC (``NASDAQ'') and the London Stock Exchange Alternative
Investment Market (``LSE AIM'')) will be valued at the last reported
sale price on the primary exchange or market on which they are
traded on the valuation date (or at approximately 4:00 p.m. Eastern
Time if a security's primary exchange is normally open at that
time). For a security that trades on multiple exchanges, the primary
exchange will generally be considered to be the exchange on which
the security generally has the highest volume of trading activity.
If it is not possible to determine the last reported sale price on
the relevant exchange or market on the valuation date, the value of
the security will be taken to be the most recent mean between the
bid and asked prices on such exchange or market on the valuation
date. Absent both bid and asked prices on such exchange, the bid
price may be used. For securities traded on NASDAQ or LSE AIM, the
official closing price will be used. If such prices are not
available, the security will be valued based on values supplied by
independent brokers or by fair value pricing, as described below.
The prices for foreign instruments will be reported in local
currency and converted to U.S. dollars using currency exchange
rates. Exchange rates will be provided daily by recognized
independent pricing agents. In the event that current market
valuations are not readily available or such valuations do not
reflect current market values, the affected investments will be
valued using fair value pricing pursuant to the pricing policy and
procedures approved by the Board in accordance with the 1940 Act.
Fair value pricing may require subjective determinations about the
value of an asset and may result in prices that differ from the
value that would be realized if the asset was sold.
    \34\ More specifically, the Exchange represents that pricing
information for exchange-traded commodity futures contracts,
exchange-traded options on futures contracts, exchange-traded
commodity-linked instruments, exchange-traded investment companies
other than exchange-traded commodity-linked instruments will be
available on the exchanges on which they are traded and through
subscription services. Pricing information for securities of non-
exchange-traded investment companies will be available through the
applicable fund's Web site or major market data vendors. Pricing
information for swaps, fixed income securities, and money market
instruments will be available through subscription services, broker-
dealer firms, and/or pricing services. Additionally, the Trade
Reporting and Compliance Engine (``TRACE'') of the Financial
Industry Regulatory Authority (``FINRA'') will be a source of price
information for certain fixed income securities held by the Fund.
---------------------------------------------------------------------------

    The Commission further believes that the proposal to list and trade
the Shares is reasonably designed to promote fair disclosure of
information that may be necessary to price the Shares appropriately and
to prevent trading when a reasonable degree of transparency cannot be
assured. The Commission notes that the Exchange will obtain a
representation from the issuer of the Shares that the NAV per Share
will be calculated daily, and that the NAV and the Disclosed Portfolio
will be made available to all market participants at the same time.\35\
Trading in the Shares also will be subject to BATS Rule
14.11(i)(4)(B)(iv), which sets forth circumstances under which Shares
of the Fund may be halted.\36\ The Exchange may halt trading in the
Shares if trading is not occurring in the securities, Commodities, or
other assets constituting the Disclosed Portfolio of the Fund and the
Subsidiary, or if other unusual conditions or circumstances detrimental
to the maintenance of a fair and orderly market are present.\37\
Further, the Commission notes that the Reporting Authority that
provides the Disclosed Portfolio must implement and maintain, or be
subject to, procedures designed to prevent the use and dissemination of
material, non-public information regarding the actual components of the
portfolio.\38\ The Exchange states that it prohibits the distribution
of material, non-public information by its employees. The Exchange also
represents that the Adviser is affiliated with a broker-dealer, and the
Adviser has implemented a fire wall with respect to that broker-dealer
affiliate regarding access to information concerning the composition
of, or changes to, the Fund's portfolio.\39\ Moreover, the Exchange
represents that it may obtain information regarding trading in the
Shares and the underlying shares in exchange-traded investment
companies, commodity-linked instruments, futures, and options on
futures via ISG, from other exchanges who are members or affiliates of
ISG, or with which the Exchange has entered into a comprehensive
surveillance sharing agreement.
---------------------------------------------------------------------------

    \35\ See BATS Rule 14.11(i)(4)(A)(ii).
    \36\ See BATS Rule 14.11(i)(4)(B)(iv).
    \37\ See BATS Rule 14.11(i)(4)(B)(iii) (providing additional
considerations for the suspension of trading in or removal from
listing of Managed Fund Shares on the Exchange). With respect to
trading halts, the Exchange may consider all relevant factors in
exercising its discretion to halt or suspend trading in the Shares
of the Fund. The Exchange will halt trading in the Shares under the
conditions specified in BATS Rule 11.18. Trading also may be halted
because of market conditions or for reasons that, in the view of the
Exchange, make trading in the Shares inadvisable.
    \38\ See BATS Rule 14.11(i)(4)(B)(ii)(B).
    \39\ See supra note 10 and accompanying text. An investment
adviser to an open-end fund is required to be registered under the
Investment Advisers Act of 1940 (``Advisers Act''). As a result, the
Adviser and any Sub-Adviser and their related personnel are subject
to the provisions of Rule 204A-1 under the Advisers Act relating to
codes of ethics. This Rule requires investment advisers to adopt a
code of ethics that reflects the fiduciary nature of the
relationship to clients as well as compliance with other applicable
securities laws. Accordingly, procedures designed to prevent the
communication and misuse of non-public information by an investment
adviser must be consistent with Rule 204A-1 under the Advisers Act.
In addition, Rule 206(4)-7 under the Advisers Act makes it unlawful
for an investment adviser to provide investment advice to clients
unless such investment adviser has (i) adopted and implemented
written policies and procedures reasonably designed to prevent
violation, by the investment adviser and its supervised persons, of
the Advisers Act and the Commission rules adopted thereunder; (ii)
implemented, at a minimum, an annual review regarding the adequacy
of the policies and procedures established pursuant to subparagraph
(i) above and the effectiveness of their implementation; and (iii)
designated an individual (who is a supervised person) responsible
for administering the policies and procedures adopted under
subparagraph (i) above.
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    The Exchange further represents that the Shares are deemed to be
equity securities, thus rendering trading in the Shares subject to the
Exchange's existing rules governing the trading of equity securities.
In support of this proposal, the Exchange has made representations,
including:
    (1) The Shares will be subject to BATS Rule 14.11(i), which sets
forth the initial and continued listing criteria applicable to Managed
Fund Shares.
    (2) The Exchange has appropriate rules to facilitate transactions
in the Shares during all trading sessions.
    (3) The Exchange believes that its surveillance procedures are
adequate to properly monitor the trading of the Shares on the Exchange
during all trading sessions and to deter and detect violations of
Exchange rules and the applicable federal securities laws. Trading of
the Shares through the Exchange will be subject to the Exchange's
surveillance procedures for derivative products, including Managed Fund
Shares.
    (4) The Exchange will communicate as needed regarding trading in
the Shares and in the exchange-traded Commodities and exchange-traded
investment companies not included within the definition of Commodities
(together, ``Exchange Traded Instruments'') held by the Fund and the
Subsidiary with other markets and other entities that are members of
ISG and may obtain trading information regarding trading in the Shares
and in the Exchange Traded Instruments held by the Fund and the
Subsidiary from such markets and other entities. In addition, the
Exchange may obtain information regarding trading in the Shares and in
the Exchange Traded Instruments held by the Fund and the Subsidiary
from markets and other entities that are members of ISG, which includes
securities and futures exchanges, or with which the Exchange has in
place a comprehensive surveillance sharing agreement. The Exchange also
will be able to access, as needed, trade information for certain fixed
income securities held by the Fund reported to FINRA's TRACE.
    (5) With respect to the futures contracts and exchange-traded
options on futures contracts in which the Subsidiary invests, not more
than 10% of the weight (to be calculated as the value of the contract
divided by the total absolute notional value of the Subsidiary's
futures and options contracts) of the futures and options contracts
held by the Subsidiary, in the aggregate, shall consist of instruments
whose principal trading market is a market from which the Exchange may
not obtain information regarding trading in the futures contracts and
exchange-

traded options on futures contracts by virtue of: (a) Its membership in
ISG; or (b) a comprehensive surveillance sharing agreement.
    (6) Prior to the commencement of trading, the Exchange will inform
its members in an Information Circular (``Circular'') of the special
characteristics and risks associated with trading the Shares.
Specifically, the Circular will discuss the following: (a) The
procedures for purchases and redemptions of Shares in Creation Units
(and that Shares are not individually redeemable); (b) BATS Rule 3.7,
which imposes suitability obligations on Exchange members with respect
to recommending transactions in the Shares to customers; (c) how
information regarding the IIV and the Disclosed Portfolio is
disseminated; (d) the risks involved in trading the Shares during the
Pre-Opening \40\ and After Hours Trading Sessions \41\ when an updated
IIV will not be calculated or publicly disseminated; (e) the
requirement that members deliver a prospectus to investors purchasing
newly issued Shares prior to or concurrently with the confirmation of a
transaction; and (f) trading information.
---------------------------------------------------------------------------

    \40\ The Pre-Opening Session is from 8:00 a.m. to 9:30 a.m.
Eastern Time.
    \41\ The After Hours Trading Session is from 4:00 p.m. to 5:00
p.m. Eastern Time.
---------------------------------------------------------------------------

    (7) For initial and continued listing, the Fund and the Subsidiary
must be in compliance with Rule 10A-3 under the Act.\42\
---------------------------------------------------------------------------

    \42\ See 17 CFR 240.10A-3.
---------------------------------------------------------------------------

    (8) The Fund may hold up to an aggregate amount of 15% of its net
assets in illiquid assets (calculated at the time of investment),
including securities deemed illiquid by the Adviser under the 1940 Act.
    (9) The Fund will invest in Commodities through investments in the
Subsidiary and will not invest directly in physical commodities. The
Fund's investment in the Subsidiary may not exceed 25% of the Fund's
total assets. The Fund and the Subsidiary will not invest in any non-
U.S. equity securities (other than shares of the Subsidiary).
    (10) Investments in non-centrally cleared swaps (through the
Subsidiary) will not represent more than 20% of the Fund's net assets.
    (11) At least 75% of corporate debt obligations will have a minimum
principal amount outstanding of $100 million or more. In addition, the
exchange-traded investment companies and commodity-linked instruments
in which the Fund invests will be listed and traded in the U.S. on
registered exchanges.
    (12) While the Fund will be permitted to borrow as permitted under
the 1940 Act, the Fund's investments will not be used to seek
performance that is the multiple or inverse multiple (i.e., 2X and -3X)
of the Benchmark.
    (13) A minimum of 100,000 Shares will be outstanding at the
commencement of trading on the Exchange.
    The Exchange represents that all statements and representations
made in the filing regarding (a) the description of the portfolio, (b)
limitations on portfolio holdings or reference assets, or (c) the
applicability of Exchange rules and surveillance procedures constitute
continued listing requirements for listing the Shares on the Exchange.
In addition, the issuer has represented to the Exchange that it will
advise the Exchange of any failure by the Fund to comply with the
continued listing requirements, and, pursuant to its obligations under
Section 19(g)(1) of the Act, the Exchange will surveil for compliance
with the continued listing requirements. If the Fund is not in
compliance with the applicable listing requirements, the Exchange will
commence delisting procedures under Exchange Rule 14.12. This approval
order is based on all of the Exchange's representations and description
of the Fund, including those set forth above and in the Notice. The
Commission notes that the Fund and the Shares must comply with the
requirements of BATS Rule 14.11(i), including those set forth in this
proposed rule change, to be listed and traded on the Exchange on an
initial and continuing basis.
    For the foregoing reasons, the Commission finds that the proposed
rule change, as modified by Amendment Nos. 1, 2, and 3 thereto, is
consistent with Section 6(b)(5) of the Act \43\ and the rules and
regulations thereunder applicable to a national securities exchange.
---------------------------------------------------------------------------

    \43\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\44\ that the proposed rule change (SR-BATS-2015-105), as modified
by Amendment Nos. 1, 2, and 3 thereto, be, and it hereby is, approved.
---------------------------------------------------------------------------

    \44\ 15 U.S.C. 78s(b)(2).

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

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

Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-07832 Filed 4-5-16; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: January 23, 2007 (Volume 72, Number 14)]
[Proposed Rules]
[Page 2825-2826]
[DOCID:fr23ja07-14]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R06-OAR-2006-0386; FRL-8272-6]

Approval and Promulgation of Implementation Plans; Texas; El Paso
County Carbon Monoxide Redesignation to Attainment, and Approval of
Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On January 20, 2006, the Texas Commission on Environmental
Quality (TCEQ) submitted a State Implementation Plan (SIP) revision to
request redesignation of the El Paso carbon monoxide (CO) nonattainment
area to attainment for the CO National Ambient Air Quality Standard
(NAAQS). This submittal also included a CO maintenance plan for the El
Paso area and associated Motor Vehicle Emission Budgets (MVEBs). The
maintenance plan was developed to ensure continued attainment of the CO
NAAQS for a period of 10 years from the effective date of EPA approval
of redesignation to attainment. In this action, EPA is proposing to
approve the El Paso CO redesignation request and the maintenance plan
with its associated MVEBs as satisfying the requirements of the Federal
Clean Air Act (CAA) as amended in 1990.

DATES: Written comments must be received by February 22, 2007.

ADDRESSES: Comments may be mailed to Mr. Thomas Diggs, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Comments may also be
submitted electronically or through hand delivery/

courier by following the detailed instructions in the ADDRESSES section
of the direct final rule located in the rules section of this Federal
Register.

FOR FURTHER INFORMATION CONTACT: Jeffrey Riley, Air Planning Section
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone<PHONE_NUMBER>; fax number
214-665-7263; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Why Is EPA Issuing This Proposed Rule?

    This document proposes to take action on SIP revisions pertaining
to the El Paso area. We have published a direct final rule approving
the State's SIP revisions in the ``Rules and Regulations'' section of
this Federal Register because we view this as a noncontroversial action
and anticipate no adverse comment. We have explained our reasons for
this action in the preamble to the direct final rule.
    If we receive no adverse comment, we will not take further action
on this proposed rule. If we receive adverse comment, we will withdraw
the direct final rule and it will not take effect. We would address all
public comments in any subsequent final rule based on this proposed
rule.
    We do not intend to institute a second comment period on this
action. Any parties interested in commenting must do so at this time.
For further information, please see the information provided in the
ADDRESSES section of this document.

    Dated: January 11, 2007.
Richard E. Greene,
Acting Regional Administrator, Region 6.
[FR Doc. E7-925 Filed 1-22-07; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 78, Number 208 (Monday, October 28, 2013)]
[Notices]
[Pages 64271-64274]
[FR Doc No: 2013-25378]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2013-0167]

Qualification of Drivers; Exemption Applications; Vision

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

ACTION: Notice of applications for exemptions; request for comments.

-----------------------------------------------------------------------

SUMMARY: FMCSA announces receipt of applications from 24 individuals
for exemption from the vision requirement in the Federal Motor Carrier
Safety Regulations. They are unable to meet the vision requirement in
one eye for various reasons. The exemptions will enable these
individuals to operate commercial motor vehicles (CMVs) in interstate
commerce without meeting the prescribed vision requirement in one eye.
If granted, the exemptions would enable these individuals to qualify as
drivers of commercial motor vehicles (CMVs) in interstate commerce.

DATES: Comments must be received on or before November 27, 2013.

ADDRESSES: You may submit comments bearing the Federal Docket
Management System (FDMS) Docket No. FMCSA-2013-0167 using any of the
following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the on-line instructions for submitting
comments.
     Mail: Docket Management Facility; U.S. Department of
Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery: West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal Holidays.
     Fax: 1-202-493-2251.
    Instructions: Each submission must include the Agency name and the
docket numbers for this notice. Note that all comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. Please see the Privacy Act heading below
for further information.
    Docket: For access to the docket to read background documents or
comments, go to http://www.regulations.gov at any time or Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The FDMS is available 24 hours each day, 365
days each year. If you want acknowledgment that we received your
comments, please include a self-addressed, stamped envelope or postcard
or print the acknowledgement page that appears after submitting
comments on-line.
    Privacy Act: Anyone may search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an

association, business, labor union, etc.). You may review DOT's Privacy
Act Statement for the Federal Docket Management System (FDMS) published
in the Federal Register on January 17, 2008 (73 FR 3316).

FOR FURTHER INFORMATION CONTACT: Elaine M. Papp, 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.,
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption
from the Federal Motor Carrier Safety Regulations for a 2-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.'' FMCSA can renew exemptions at the end of each
2-year period. The 24 individuals listed in this notice have each
requested such an exemption from the vision requirement in 49 CFR
391.41(b)(10), which applies to drivers of CMVs in interstate commerce.
Accordingly, the Agency will evaluate the qualifications of each
applicant to determine whether granting an exemption will achieve the
required level of safety mandated by statute.

Qualifications of Applicants

Larry Adams, Jr.

    Mr. Adams, age 44, has had traumatic corneal necrosis in his left
eye since 1990. The visual acuity in his right eye is 20/20, and in his
left eye, no light perception. Following an examination in 2013, his
optometrist noted, ``It is my opinion the Mr. Adams should be allowed
to have his commercial license. Mr. Adams has been successfully driving
with only his right eye for the past 18 years.'' Mr. Adams reported
that he has driven tractor-trailer combinations for 17 years,
accumulating 1.64 million miles. He holds a Class A Commercial Driver's
License (CDL) from Florida. His driving record for the last 3 years
shows no crashes and no convictions for moving violations in a CMV.

Juan R. Andrade

    Mr. Andrade, 53, has a macular hole in his right eye due to a
traumatic incident in 2001. The visual acuity in his right eye is 20/
70, and in his left eye, 20/20. Following an examination in 2013, his
ophthalmologist noted, ``I certify that, in my medical opinion, the
patient has sufficient vision to perform the driving tasks required to
operate a commercial vehicle.'' Mr. Andrade reported that he has driven
tractor-trailer combinations for 29 years, accumulating 2.9 million
miles. He holds a Class A CDL from Texas. His driving record for the
last 3 years shows no crashes and no convictions for moving violations
in a CMV.

Ronald C. Ashley

    Mr. Ashley, 42, has had amblyopia in his right eye since birth. The
visual acuity in his right eye is 20/60, and in his left eye, 20/20.
Following an examination in 2013, his optometrist noted, ``I find no
reason to restrict his duties as a CDL driver. I find that speaking
with Mr. Ashley that he is well aware of his visual situation and
understands the importance of good vision in his occupation as a CDL
holder. I find that he is fit to perform his duties.'' Mr. Ashley
reported that he has driven tractor-trailer combinations for 3 years,
accumulating 255,000 miles. He holds a Class A CDL from Georgia. His
driving record for the last 3 years shows no crashes and no convictions
for moving violations in a CMV.

Michael A. Bagwell

    Mr. Bagwell, 38, has had amblyopia in his left eye since birth. The
visual acuity in his right eye is 20/200, and in his left eye, 20/20.
Following an examination in 2013, his optometrist noted, ``It is my
opinion that Mr. Bagwell has sufficient vision to perform the driving
tasks required to operate a commercial vehicle.'' Mr. Bagwell reported
that he has driven straight trucks for 10 years, accumulating 42,500
miles, and tractor-trailer combinations for 15 years, accumulating
67,500 miles. He holds an operator's license from Texas. His driving
record for the last 3 years shows no crashes and no convictions for
moving violations in a CMV.

Lester E. Burnes

    Mr. Burnes, 47, has a prosthetic left eye due to a traumatic
incident in 2012. The visual acuity in his right eye is 20/20, and in
his left eye, no light perception. Following an examination in 2012,
his optometrist noted, ``It is my opinion that this patient has loss of
left eye due to trauma; well adapted to loss. Right eye visual
correction consistent with previous Rx and age. Patient shows better
than average adjustment to loss of one eye and approval for continued
CDL is recommended.'' Mr. Burnes reported that he has driven straight
trucks for 10 years, accumulating 1 million miles, and tractor-trailer
combinations for 5 years, accumulating 100,000 miles. He holds a Class
A CDL from New Mexico. His driving record for the last 3 years shows no
crashes and no convictions for moving violations in a CMV.

Miguel A. Calderon

    Mr. Calderon, 40, has a prosthetic left eye due to a traumatic
incident in 1990. The visual acuity in his right eye is 20/20, and in
his left eye, no light perception. Following an examination in 2013,
his optometrist noted, ``In my opinion, Mr. Calderon has sufficient
vision to perform the driving tasks required to operate a commercial
vehicle.'' Mr. Calderon reported that he has driven straight trucks for
5 years, accumulating 150,000 miles. He holds a Class A CDL from
California. His driving record for the last 3 years shows no crashes
and no convictions for moving violations in a CMV.

Terry L. Cliffe

    Mr. Cliffe, 59, has had amblyopia in his right eye since childhood.
The visual acuity in his right eye is 20/400, and in his left eye, 20/
20. Following an examination in 2013, his optometrist noted, ``The
amblyopic right eye seems to be stable at this time and you have enough
vision in the left eye to be able to drive a commercial vehicle.'' Mr.
Cliffe reported that he has driven straight trucks for 4 years,
accumulating 272,000 miles, and tractor-trailer combinations for 10
years, accumulating 1.19 million miles. He holds a Class AM CDL from
Illinois. His driving record for the last 3 years shows no crashes and
no convictions for moving violations in a CMV.

Herman R. Dahmer, Jr.

    Mr. Dahmer, 56, has amblyopia in his left eye due to a traumatic
incident during childhood. The visual acuity in his right eye is 20/20,
and in his left eye, counting fingers. Following an examination in
2013, his optometrist noted, ``Can drive a commercial vehicle.'' Mr.
Dahmer reported that he has driven straight trucks for 33 years,
accumulating 442,497 miles. He holds a Class A CDL from Maryland. His
driving record for the last 3 years shows no crashes and no convictions
for moving violations in a CMV.

Andrew S. Durward

    Mr. Durward, 52, has had a central retinal vein occlusion in his
right eye since 2010. The visual acuity in his right eye is 20/70, and
in his left eye, 20/25. Following an examination in 2013, his
ophthalmologist noted, ``He is able to recognize the colors of traffic

control signals and in my medical opinion has sufficient vision to
perform the driving task required to operate a commercial vehicle.''
Mr. Durward reported that he has driven straight trucks for 4 years,
accumulating 40,000 miles. He holds an operator's license from
Illinois. His driving record for the last 3 years shows no crashes and
no convictions for moving violations in a CMV.

James P. Fitzgerald

    Mr. Fitzgerald, 57, has had a retinal detachment in his left eye
since 2010. The visual acuity in his right eye is 20/25, and in his
left eye, hand motion. Following an examination in 2012, his
ophthalmologist noted, ``Mr. Fitzgerald has sufficient vision to
perform the driving tasks to operate a commercial vehicle.'' Mr.
Fitzgerald reported that he has driven tractor-trailer combinations for
33 years, accumulating 3.1 million miles. He holds a Class AM CDL from
Massachusetts. His driving record for the last 3 years shows no crashes
and no convictions for moving violations in a CMV.

Vashion E. Hammond

    Mr. Hammond, 34, has had a mature mixed cataract in his left eye
since 1982. The visual acuity in his right eye is 20/20, and in his
left eye, hand motion. Following an examination in 2013, his
optometrist noted, ``I certify that in my optometric opinion, Mr.
Hammond has sufficient vision to operate a commercial vehicle.'' Mr.
Hammond reported that he has driven tractor-trailer combinations for 5
years, accumulating 600,000 miles. He holds a Class A CDL from Florida.
His driving record for the last 3 years shows one crash, for which he
was cited due to careless driving, and one conviction for a moving
violation in a CMV; he exceeded the speed limit by 10 mph.

Louis E. Henry, Jr.

    Mr. Henry, 58, has had amblyopia in his left eye since childhood.
The visual acuity in his right eye is 20/20, and in his left eye, 20/
100. Following an examination in 2013, his optometrist noted, ``Based
upon my findings and medical expertise, I Dr. Rashid Omar hereby
certify Louis Henry to be visually able to safely operate a commercial
motor vehicle.'' Mr. Henry reported that he has driven straight trucks
for 32 years, accumulating 1.6 million miles, and tractor-trailer
combinations for 6 years, accumulating 150,000 miles. He holds a Class
DMA CDL from Kentucky. His driving record for the last 3 years shows no
crashes and no convictions for moving violations in a CMV.

Adam S. Larson

    Mr. Larson, 33, has central opacity in his left eye due to a
traumatic incident during childhood. The visual acuity in his right eye
is 20/20, and in his left eye, 20/70. Following an examination in 2013,
his ophthalmologist noted, ``In my professional opinion, Mr. Larson has
normal peripheral vision and can operate a commercial vehicle.'' Mr.
Larson reported that he has driven straight trucks for 4.5 years,
accumulating 90,000 miles, and tractor-trailer combinations for 1.5
months, accumulating 1,600 miles. He holds a Class B CDL from Colorado.
His driving record for the last 3 years shows no crashes and no
convictions for moving violations in a CMV.

Sally A. Leavitt

    Ms. Leavitt, 49, has had optic neuropathy in her right eye since
childhood. The visual acuity in her right eye is 20/50, and in her left
eye, 20/25. Following an examination in 2012, her ophthalmologist
noted, ``I certify she has sufficient vision to perform the driving
tasks required to operate a commercial vehicle.'' Ms. Leavitt reported
that she has driven buses for 4 years, accumulating 16,640 miles. She
holds a Class C CDL from Nevada. Her driving record for the last 3
years shows no crashes and no convictions for moving violations in a
CMV.

Glenn H. Lewis, Jr.

    Mr. Lewis, 45, has had amblyopia in his right eye since birth. The
visual acuity in his right eye is 20/70, and in his left eye, 20/20.
Following an examination in 2013, his optometrist noted, ``In my
opinion, from past performance and the current vision situation Glenn
should still be able to operate a commercial vehicle for his
employment, just as he has done for the past 15 years.'' Mr. Lewis
reported that he has driven straight trucks for 16 years, accumulating
3.3 million miles. He holds a Class A CDL from Ohio. His driving record
for the last 3 years shows no crashes and no convictions for moving
violations in a CMV.

Leonardo Lopez

    Mr. Lopez, 21, has complete loss of vision in his left eye due to a
traumatic incident during childhood. The visual acuity in his right eye
is 20/20. Following an examination in 2012, his optometrist noted, ``In
my medical opinion, Leonardo Lopez seems to have sufficient vision in
his right eye to perform the visual tasks associated with operating a
commercial vehicle.'' Mr. Lopez reported that he has driven straight
trucks for 1 year, accumulating 12,000 miles, and tractor-trailer
combinations for 2 years, accumulating 80,000 miles. He holds an
operator's license from Nebraska. His driving record for the last 3
years shows one crash, to which he did not contribute and for which he
was not cited, and no convictions for moving violations in a CMV.

Larry P. Magrath

    Mr. Magrath, 49, has had refractive amblyopia in his right eye
since childhood. The visual acuity in his right eye is 20/80, and in
his left eye, 20/20. Following an examination in 2013, his optometrist
noted, ``I believe Larry Magrath has sufficient vision to perform the
driving tasks required to operate a commercial vehicle.'' Mr. Magrath
reported that he has driven straight trucks for 15 years, accumulating
75,000 miles, tractor-trailer combinations for 1 year, accumulating
30,000 miles, and buses for 5 years, accumulating 12,500 miles. He
holds a Class A CDL from Minnesota. His driving record for the last 3
years shows no crashes and no convictions for moving violations in a
CMV.

Gilberto D. Miramontes

    Mr. Miramontes, 44, has a retinal detachment in his right eye due
to a traumatic incident during childhood. The visual acuity in his
right eye is counting fingers, and in his left eye, 20/20. Following an
examination in 2012, his ophthalmologist noted, ``In my medical
opinion, given that Mr. Miramontes has had decreased vision in his
right eye for many years and that he has driven a commercial vehicle
with no incidents for four years, that [sic] Mr. Miramontes has
sufficient vision to perform the driving tasks required to operate a
commercial vehicle.'' Mr. Miramontes reported that he has driven
tractor-trailer combinations for 4 years, accumulating 208,000 miles.
He holds a Class A CDL from Texas. His driving record for the last 3
years shows no crashes and no convictions for moving violations in a
CMV.

Richard J. Pauxtis

    Mr. Pauxtis, 51, has had a vascular occlusion in his left eye since
2002. The visual acuity in his right eye is 20/15, and in his left eye,
20/50. Following an examination in 2013, his optometrist noted, ``Mr.
Pauxtis has sufficient vision to perform the driving tasks required to
operate commercial vehicles.'' Mr. Pauxtis reported that he has driven
tractor-trailer combinations for 38 years,

accumulating 4.56 million miles. He holds a Class A CDL from Oregon.
His driving record for the last 3 years shows no crashes and no
convictions for moving violations in a CMV.

Johnny L. Powell

    Mr. Powell, 48, has had amblyopia in his right eye since childhood.
The visual acuity in his right eye is 20/400, and in his left eye, 20/
20. Following an examination in 2013, his optometrist noted,
``Sufficient VA to perform commercial vehicles.'' Mr. Powell reported
that he has driven straight trucks for 2 years, accumulating 64,000
miles, and tractor-trailer combinations for 1 year, accumulating 47,000
miles. He holds a Class AM CDL from Maryland. His driving record for
the last 3 years shows no crashes and one conviction for a moving
violation in a CMV; he was operating a moving vehicle while the
operator/occupant was not restrained by a seatbelt.

Jacques W. Rainville

    Mr. Rainville, 59, has had amblyopia in his right eye since
childhood. The visual acuity in his right eye is 20/80, and in his left
eye, 20/20. Following an examination in 2013, his optometrist noted,
``In my medical opinion I believe Mr. Rainville has sufficient vision
to drive a commercial vehicle based on his long driving history and the
fact his vision has been mostly stable the last 10 years.'' Mr.
Rainville reported that he has driven tractor-trailer combinations for
25 years, accumulating 3.75 million miles. He holds a Class A CDL from
Vermont. His driving record for the last 3 years shows no crashes and
no convictions for moving violations in a CMV.

Jeffrey T. Skaggs

    Mr. Skaggs, 38, has complete loss of vision in his right eye due to
a traumatic incident in 1996. The visual acuity in his right eye is no
light perception, and in his left eye, 20/20. Following an examination
in 2013, his optometrist noted, ``Today's examination findings suggest
that he would be perfectly capable of operation [sic] a commercial
vehicle without limitations. His left eye has 20/20 vision with and
without correction. He has full peripheral vision.'' Mr. Skaggs
reported that he has driven straight trucks for 21 years, accumulating
1.05 million miles, and tractor-trailer combinations for 4 years,
accumulating 12,000 miles. He holds a Class A CDL from Iowa. His
driving record for the last 3 years shows no crashes and no convictions
for moving violations in a CMV.

Roy A. Whitaker

    Mr. Whitaker, 36, has had refractive amblyopia in his left eye
since childhood. The visual acuity in his right eye is 20/20, and in
his left eye, 20/80. Following an examination in 2013, his optometrist
noted, ``He has refractive amblyopia in his left eye with best
corrected va [sic] 20/100, he has neglible [sic] rx [sic] in his right
eye and sees 20/20 . . . He appears to be competent and capable of
driving a commercial vehicle on our roads and highways.'' Mr. Whitaker
reported that he has driven straight trucks for 3.5 years, accumulating
84,000 miles. He holds a Class A CDL from Texas. His driving record for
the last 3 years shows no crashes and no convictions for moving
violations in a CMV.

Sammy D. Wynn

    Mr. Wynn, 55, has had amblyopia in his right eye since childhood.
The visual acuity in his right eye is hand motion, and in his left eye,
20/25. Following an examination in 2013, his optometrist noted, ``It is
my professional opinion that Mr. Sammy Wynn meets the requirements to
safely drive any motor vehicle.'' Mr. Wynn reported that he has driven
straight trucks for 15 years, accumulating 37,500 miles. He holds a
Class A CDL from Georgia. His driving record for the last 3 years shows
no crashes and no convictions for moving violations in a CMV.

Request for Comments

    In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests
public comment from all interested persons on the exemption petitions
described in this notice. The Agency will consider all comments
received before the close of business November 27, 2013. Comments will
be available for examination in the docket at the location listed under
the ADDRESSES section of this notice. The Agency will file comments
received after the comment closing date in the public docket, and will
consider them to the extent practicable.
    In addition to late comments, FMCSA will also continue to file, in
the public docket, relevant information that becomes available after
the comment closing date. Interested persons should monitor the public
docket for new material.

Submitting Comments

    You may submit your comments and material online or by fax, mail,
or hand delivery, but please use only one of these means. FMCSA
recommends that you include your name and a mailing address, an email
address, or a phone number in the body of your document so that FMCSA
can contact you if there are questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov and
in the search box insert the docket number FMCSA-2013-0167 and click
the search button. When the new screen appears, click on the blue
``Comment Now!'' button on the right hand side of the page. On the new
page, enter information required including the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. If you submit your comments by mail or
hand delivery, submit them in an unbound format, no larger than 8\1/2\
by 11 inches, suitable for copying and electronic filing. If you submit
comments by mail and would like to know that they reached the facility,
please enclose a stamped, self-addressed postcard or envelope.
    We will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments. FMCSA may issue a final rule at any time after the close of
the comment period.

Viewing Comments and Documents

    To view comments, as well as any documents mentioned in this
preamble, To submit your comment online, go to http://www.regulations.gov and in the search box insert the docket number
FMCSA-2013-0167 and click ``Search.'' Next, click ``Open Docket
Folder'' and you will find all documents and comments related to the
proposed rulemaking.

    Issued on: October 16, 2013.
 Larry W. Minor,
 Associate Administration for Policy.
[FR Doc. 2013-25378 Filed 10-25-13; 8:45 am]
BILLING CODE 4910-EX-P