[Federal Register: May 12, 2006 (Volume 71, Number 92)]
[Notices]
[Page 27764-27768]
[DOCID:fr12my06-116]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-53764; File No. SR-PCX-2006-16]

Self-Regulatory Organizations; Pacific Exchange, Inc. (n/k/a NYSE
Arca, Inc.); Notice of Filing of Proposed Rule Change and Amendments
No. 1 and No. 2 Thereto To Revise Fees for Equity Securities Issued by
Operating Companies Listed on the Archipelago Exchange

May 5, 2006.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\

notice is hereby given that on March 1, 2006, the Pacific Exchange,
Inc. (n/k/a NYSE Arca, Inc.) (``NYSE Arca'' or ``Exchange''), through
its wholly owned subsidiary PCX Equities, Inc. (n/k/a NYSE Arca
Equities, Inc.), filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which items have been prepared by the NYSE Arca.\3\ On
March 17, 2006, the Exchange filed Amendment No. 1 to the proposed rule
change.\4\ On May 5, 2006, the Exchange filed Amendment No. 2 to the
proposed rule change.\5\ The Commission is publishing this notice to
solicit comments on the proposed rule change, as amended, from
interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ On March 6, 2006, the Pacific Exchange, Inc. (``PCX'') filed
a rule proposal, which was effective upon filing, that amended its
rules to reflect these name changes: from PCX to NYSE Arca; from PCX
Equities, Inc. to NYSE Arca Equities, Inc.; from PCX Holdings, Inc.,
to NYSE Arca Holdings, Inc.; and from the Archipelago Exchange,
L.L.C. to NYSE Arca, L.L.C. See File No. SR-PCX-2006-24 (March 6,
2006).
    \4\  See Amendment No. 1.
    \5\ See Amendment No. 2.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The NYSE Arca proposes to amend its Schedule of Fees and Charges
(``Fee Schedule'') to revise the application, initial, annual and
additional shares listing fees for equity securities issued by
operating companies listed on the Archipelago Exchange, the equities
facility of the Exchange. The Exchange also proposes related
modifications to the Fee Schedule.

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 NYSE Arca included
statements concerning the purpose of, and basis for, the proposed rule
change as amended 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
    In connection with the recently completed acquisition of the NYSE
Arca and Arca Equities by Archipelago Holdings, Inc.--the parent of
NYSE Arca, L.L.C. (``NYSE Arca Marketplace'')--and the now completed
merger between Archipelago Holdings, Inc. and the New York Stock
Exchange (``NYSE''), NYSE Arca undertook a review of its listings
business and competitive position in a rapidly changing industry.\6\ As
a result of this review, the NYSE Arca determined to make significant
changes to the fees associated with its listings program. Accordingly,
the NYSE Arca proposes to revise, and in some cases increase, the
application, initial, annual and additional share listing fees for
equity securities issued by operating companies listed on NYSE Arca
Marketplace. This filing also proposes a number of related
modifications to the Fee Schedule.\7\
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    \6\ For instance, on December 8, 2005, Nasdaq announced that it
had completed its acquisition of Instinet Group Incorporated,
including INET ECN. In addition, on August 24, 2005, the Boston
Stock Exchange, along with Citigroup, Credit Suisse First Boston,
Fidelity Brokerage Company and Lehman Brothers, announced the
formation of a new joint venture that will launch an electronic
stock exchange, the Boston Equities Exchange. Further, on August 16,
2005, the Philadelphia Stock Exchange announced that Citigroup,
Credit Suisse First Boston, Morgan Stanley and UBS have each
acquired equity stakes in that exchange, with provisions that allow
for each firm to obtain additional equity based on specific
performance criteria.
    \7\ These proposed fee changes apply only to equity securities
issued by operating companies. They do not apply to other types of
listed issues, including but not limited to open and closed-end
funds, exchange-traded funds, commodity-based trusts, trust issued
receipts, portfolio depositary receipts, structured products and
investment company units. For these issues, the Fee Schedule remains
unchanged.
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    The NYSE Arca believes this proposal would enable it to compete
effectively for listings, while supporting the ongoing costs of issuer
services, including regulatory oversight and product and service
offerings. This proposal further seeks to streamline and clarify the
fees applicable to operating companies, making them more transparent
and easier to understand and apply.
    a. Application Fee. Currently, the NYSE Arca levies a non-
refundable application processing fee of $500, credited towards the
applicable initial listing fee if the application is approved. The
Exchange proposes to eliminate the application fee.
    b. Maximum Total Fees Paid by an Issuer Each Year. The NYSE Arca
proposes a maximum cap of $250,000 on the total fees paid each year by
an issuer. Currently, the Exchange does not have such an issuer cap.
    c. Listing Fee.\8\ Currently, the Listing Fee applicable to common
stock upon first listing depends on whether the stock is listed in
conjunction with an initial public offering (``IPO'') or not, and
whether it is classified as a Tier I or Tier II listing.\9\ For IPOs
listed exclusively on Tier I,\10\ the Listing Fee is based on the
issuer's total shares outstanding (``TSO''), as follows:
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    \8\ There are two types of fees applicable to issuers--Listing
Fees and Annual Fees. Previously, NYSE Arca referred to Listing Fees
as Initial Listing Fees and Additional Share Listing Fees. For ease
of application, in light of the completed merger between Archipelago
Holdings, Inc. and the NYSE, NYSE Arca proposes to conform its fee
nomenclature to the NYSE's nomenclature.
    \9\ Tier I is designed for larger capitalization, mature
issuers; Tier II is for smaller issuing companies. Both Tiers have
their own set of listing criteria.
    \10\ See NYSE Arca Equities Rule 5.2(c).

------------------------------------------------------------------------
                            TSO                              Listing fee
------------------------------------------------------------------------
Less than 10,000,000.......................................      $25,000
10,000,001 to 30,000,000...................................       75,000
30,000,000 to $75,000,000..................................      100,000
Greater than $75,000,000...................................      125,000
------------------------------------------------------------------------

    For IPOs listed exclusively on Tier II,\11\ the current Listing Fee
is fixed at $25,000. For IPOs which dually list, there is no Listing
Fee, regardless of Tier classification. There is also no Listing Fee
for already publicly-traded companies which transfer their listings
from another marketplace, regardless of whether such issuers are
exclusively or dually listed, their Tier classification, or TSO.
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    \11\  See NYSE Arca Equities Rule 5.2(k).
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    To simplify and streamline these fees, the NYSE Arca proposes to
adopt new Listing Fees based on TSO at the time a security is listed on
NYSE Arca Marketplace, as follows: \12\
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    \12\ For purposes of Listing Fee calculations, NYSE Arca would
include treasury stock, restricted stock and shares issued in
conjunction with the exercise of an overallotment option, if
applicable, in the number of shares for which an issuer is billed at
the time a security is first listed.

------------------------------------------------------------------------
                            TSO                              Listing fee
------------------------------------------------------------------------
Up to and including 30 million.............................     $100,000
30,000,001 up to and including 50 million..................      125,000
Over 50 million............................................      150,000
------------------------------------------------------------------------

    These proposed fees also would apply to each class of preferred
stock or warrant listed, whether or not the issuer has common shares
also listed.\13\ Further, these fees would apply regardless of Tier
classification or whether the issue is exclusively or

dually listed. These proposed Listing Fees also would apply to foreign
private issuers, but only to the extent their securities are issued and
outstanding in the United States.\14\ However, in light of the recently
completed merger between Archipelago Holdings, Inc. and the NYSE,
issuers that transfer their listing to the NYSE Arca Marketplace from
the NYSE would not be subject to Listing Fees upon initial listing.
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    \13\ As discussed below, for additional classes of common stock
when the issuer has a class of common stock already listed, the
Exchange would levy a flat Listing Fee for initial listing of
$5,000.
    \14\ See 17 CFR 240.3b-4 (defining ``foreign private issuer'').
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    For additional classes of common stock, preferred stock, debt
instruments, purchase rights and warrants, the current initial listing
fee is $2,500, regardless of whether such securities are also listed
elsewhere. These fees apply to each additional issue listed, regardless
of shares outstanding or Tier classification.
    For additional classes of common stock, the NYSE Arca proposes a
flat Listing Fee of $5,000 in lieu of the per share schedule above.
    The Listing Fee for debt instruments and purchase rights remains
$2,500.
    d. Technical Original Listing Fee.\15\ Currently, the NYSE Arca
charges a fee for technical original listing applications of $2,500.
Under the current rule, a technical original listing occurs as a result
of, for example:
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    \15\ To conform to NYSE fee nomenclature, NYSE Arca proposes to
adopt the term ``Technical Original Listing'' in place of
``Substitute Initial Listing.''
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     Change in the issuer's state of incorporation;
     Reincorporation under the laws of the same state;
     Recapitalization;
     Creation of a holding company or a new company by
operation of law or through an exchange offer; \16\ or
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    \16\ The proposed new rule text regarding the application of the
fee in these circumstances codifies the Exchange's existing
practice.
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     Similar events, which, in effect, create a new security or
which alters any of its rights, preferences, privileges or terms.
    Additionally, this fee currently applies if the change in the
company's status is technical in nature and the shareholders of the
original company receive or retain a share-for-share interest in the
new company without any change in their equity position or rights.\17\
By the proposed rule change, the NYSE Arca proposes to rename the
fee,\18\ to codify its current practice regarding applying the fee,\19\
and to increase the amount of the fee to $5,000 per application.
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    \17\ The proposed new rule text regarding the application of the
fee in these circumstances codifies the Exchange's existing
practice.
    \18\ See supra at n.15.
    \19\ See supra at n.16 and n.17.
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    e. Annual Fee. Currently, the Annual Fee depends on whether a
security was listed in conjunction with an IPO, whether the security is
listed exclusively or dually, and Tier classification. For Tier I
exclusive IPO listings, the current Annual Fee is based on TSO, as
follows:

------------------------------------------------------------------------
                            TSO                               Annual fee
------------------------------------------------------------------------
Less than 10,000,000.......................................      $15,000
10,000,001 to 50,000,000...................................       20,000
50,000,001 to 100,000,000..................................       35,000
Greater than 100,000,000...................................       50,000
------------------------------------------------------------------------

    For Tier II exclusive IPO listings, the current annual Fee is
$12,500, regardless of TSO.
    For dual listings in conjunction with IPOs, and exclusive and dual
listings of already publicly-traded companies, the Exchange does not
levy an Annual Fee for the first 12-calendar months following listing.
At the end of this 12-month period, NYSE Arca proposes to assess, on a
pro-rated basis, the applicable Annual Fee for the balance of the then
current calendar year, as follows:
     For exclusive IPO Listings, the Annual Fee is based on the
fees set forth above for exclusive IPOs, depending on Tier
classification;
     For dual IPO and exclusive and dual non-IPO Listings, the
Annual Fee is $10,000, regardless of Tier classification or shares
outstanding.
    The current maximum Annual Fee payable by a single issuer for all
issues listed is $90,000. Annual Fees are not pro-rated or reduced for
securities that delist for any reason.
    The Exchange proposes an Annual Fee for listed issuers listing
common or preferred securities as follows: A minimum of $30,000 for
issuers with up to and including 10 million TSO plus, for each share
over 10 million TSO up to and including 100 million TSO, issuers would
be subject to an additional per share charge of $0.000375. For all
issuers with TSO above 100 million, the Annual Fee would be a flat
$85,000 per issue listed. For example, an issuer with 54.5 million TSO
would pay an Annual Fee of $46,687.50 ($30,000 plus $0.000375 times
44.5 million), an issuer with 100 million TSO would pay an Annual Fee
of $63,750 ($30,000 plus $0.000375 times 90 million), and an issuer
with 110 million TSO would pay the maximum Annual Fee of $85,000 per
issue. These proposed Annual Fees would also apply to foreign private
issuers, but only to the extent securities are issued and outstanding
in the United States. The NYSE Arca would calculate the Annual Fee for
foreign private issuers based on a four-quarter average of the
securities issued and outstanding in the United States during the
preceding year.\20\
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    \20\ The purpose of utilizing a four-quarter average is to
recognize the possibility of flow-back and flow-in of securities to
and from the home country market and more reasonably reflect the
number of securities in the United States over the course of the
year.
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    To the extent that an issuer that is billed by NYSE Arca as a
foreign private issuer has a change in status that requires the issuer
to commence filing U.S. periodic and annual reports with the Commission
during the course of a year, NYSE Arca would bill that issuer Listing
and Annual Fees as a domestic issuer at the beginning of the first
calendar year following the issuer's change in status. An issuer that
changes its status would not be subject to new Listing Fees for
worldwide securities already issued and outstanding.
    For additional classes of common stock, preferred stock, debt
instruments, purchase rights and warrants, the NYSE Arca's current
Annual Fee is $500, regardless of whether they are also listed
elsewhere. These fees apply to each such issue listed, regardless of
shares outstanding or Tier classification.
    For issuers with more than one class of common stock listed, the
Exchange proposes an Annual Fee of $20,000 or $0.000375 per share
listed, whichever is greater, for each additional class of common
stock.\21\
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    \21\ For purposes of Annual Fee calculation when an issuer has
multiple classes of common stock listed, the NYSE Arca would assess
the class of common stock with the highest TSO the Annual Fee
proposed above for listed issuers, that is, a minimum Annual Fee of
$30,000 for up to and including 10 million TSO plus, if applicable,
a per share charge of $0.000375 on each share over 10 million up to
and including 100 million TSO, subject to the $85,000 maximum Annual
Fee per issue. For each additional class of common stock listed, the
NYSE Arca would assess Annual Fees as proposed above for additional
classes, that is, an Annual Fee of $20,000 or $0.000375 per share
listed, whichever is greater.
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    For additional classes of preferred stock where the issuer has a
class of common or preferred stock already listed, the Exchange
proposes an Annual Fee of $5,000 or $0.000375 per share, whichever is
greater. Further, the NYSE Arca proposes an Annual Fee for each class
of warrant listed of $5,000 or $0.000375 per warrant, whichever is
greater. The Annual Fee for debt instruments and purchase rights would
remain $500.
    Issues would be subject to the Annual Fee in the year of listing,
pro-rated based on days listed that calendar year. However, issuers
that transfer their

listing from the NYSE to the NYSE Arca Marketplace would, for the year
of transfer, be subject only to the applicable NYSE Annual Fee billed
for that year and, in subsequent years, such issuers would pay the
applicable NYSE Arca Marketplace Annual Fee; similarly, issuers that
transfer their listings from NYSE Arca Marketplace to the NYSE would,
for the year of transfer, be subject only to the applicable NYSE Arca
Marketplace Annual Fee billed for that year and, in subsequent years,
such issuers would pay applicable NYSE Annual Fees.
    f. Subsequent Listing of Additional Securities.\22\ Currently, the
fee applicable to all issuers for Subsequent Listing of Additional
Securities is $.0025 per additional share listed, assessed beginning
with the 100,000th additional share listed per application. There is no
charge per application for the first 99,999 additional shares listed.
For domestic issuers, the minimum and a maximum charge per application
currently depends on whether an issue is exclusively or dually listed,
as follows:
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    \22\ Previously, the NYSE Arca referred to Subsequent Listing of
Additional Securities as Additional Shares Listing.
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     For all exclusive listings, the maximum charge per
application is $15,000 and the annual maximum charge is $30,000;
     For all dual listings, the maximum charge per application
is $7,500 and the maximum annual charge is $14,000; and
     For all applications to list additional shares, the
current minimum charge is $500.
    In addition, for American Depositary Receipts (``ADRs'') and
American Depositary Shares (``ADSs'') only, NYSE Arca's current maximum
additional shares listing charge per year is $10,000, the minimum
charge per application is $500, and the maximum per application charge
at $7,500. These fees are assessed only on the ADRs and ADSs that are
issued and outstanding in the United States.
    For an issuer to list additional shares of a class of previously
listed securities, NYSE Arca proposes to adopt the following schedule,
subject to a minimum fee of $5,000 per application:

------------------------------------------------------------------------
                                                               Fee per
                Number of securities issued                     share
------------------------------------------------------------------------
Up to and including 75 million............................      $0.0048
75,000,001 to 300 million.................................       0.00375
Over 300 million..........................................       0.0019
------------------------------------------------------------------------

    The Listing Fees for subsequent listings of additional shares are
calculated starting at the rate applicable to the number of shares
already listed and outstanding (including treasury stock and restricted
stock). This schedule applies to subsequent issuances of common stock,
preferred stock and warrants.
    These fees would be assessed as follows, subject to any maximum on
fees paid by an issuer per year:
     To the extent that an issuer submits a supplemental
listing application for shares that are immediately issued, such as in
connection with a merger or acquisition, stock split or stock dividend,
Listing Fees for those shares would be billed at the time the
supplemental listing application is processed.
     However, to the extent an issuer submits a supplemental
listing application for shares that are not issued at the time of
listing, such as for an equity compensation plan or for convertible
securities where the listed securities will be issued over time, only
the $5,000 minimum supplemental listing application fee would be billed
at the time the supplemental listing application is processed. Listing
Fees would accrue on these securities as of the date of issuance and
the accrued Listing Fees would be billed at the beginning of the
following year along with the issuer's Annual Fees.
    These fees would also apply to foreign private issuers, but only to
the extent securities are issued and outstanding in the United States,
subject to any maximum on fees paid by an issuer per year. In addition,
issuers that transfer their listing to the NYSE Arca Marketplace from
the NYSE would be subject to these fees.
    g. Miscellaneous Administrative Fees. Currently, NYSE Arca charges
$250 to administer certain modifications to NYSE Arca records. The
Exchange, stating that this fee has not been increased in many years,
proposes to increase this fee to $2,500 per modification, which
includes changes in company name, symbol, par value, and title of
security or designation. The fee would also apply to poison pill plans
(also known as shareholder rights plans).
    h. Maximum Listing Fee for Stock Splits and Stock Dividends. The
NYSE Arca proposes that Listing Fees on shares issued in conjunction
with stock splits and stock dividends be capped at $150,000 per split
or issuance, subject to the $250,000 maximum on total fees paid each
year by an issuer. Currently, the Exchange does not have such a cap.
    i. Listing Fee Discounts. In the case of transactions such as a
consolidation between two or more listed issuers that result in the
formation of a new issuer that immediately lists upon consummation of
the consolidation, or a merger between a listed issuer and an unlisted
issuer that results in the unlisted issuer surviving or the creation of
a new issuer (which lists within 12 months from the consummation of the
transaction), Listing Fees for that newly listed issuer would be 25% of
the Listing Fee for each class of securities being listed, up to 25% of
the maximum applicable to the issue(s) listed. No discount would be
applied, however, where a listed issuer survives the merger or
consolidation, or in the case of a backdoor (or ``reverse'') merger.
    j. Rule Change Implementation. The NYSE Arca proposes to implement
these revised fees, as applicable, for all currently listed issuers
upon effectiveness of this proposal, except as follows:
     For calendar year 2006, NYSE Arca proposes that issuers
listed on NYSE Arca Marketplace, and issuers with listing applications
pending as of the effective date of this proposal, would continue to be
subject to the current Fee Schedule. As of January 1, 2007, however,
all such issuers would be subject to the Fee Schedule as proposed to be
revised.
     Further, NYSE Arca proposes, for the period through
December 31, 2007, that all issuers which transfer their listings from
Nasdaq or the American Stock Exchange, or apply to list during that
time, would not be subject to Listing Fees upon initial listing. Such
issuers, however, would be subject to Annual Fees and Fees for
Subsequent Listing of Additional Securities, as proposed above. Going
forward, NYSE Arca would consider whether to extend this period beyond
December 31, 2007, and would make any necessary proposals under Rule
19b-4 prior to that date.
2. Statutory Basis
    The NYSE Arca believes that the proposal is consistent with Section
6(b) of the Act \23\ in general, and Section 6(b)(4) of the Act \24\ in
particular, in that it provides for the equitable allocation of
reasonable dues, fees and other charges among its ETP Holders, issuers,
and other persons using its facilities.
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    \23\15 U.S.C. 78f(b).
    \24\15 U.S.C. 78f(b)(4).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange believes that the proposed rule change would not
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.

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

    The Exchange has not solicited, and does not intend to solicit,
comments on this proposed rule change. The Exchange has not received
any written comments from members or other interested parties.

III. Date of Effectiveness of the Proposed Rule

    Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
    (A) By order approve such proposed rule change; or
    (B) institute proceedings to determine whether the proposed rule
change should be 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 e-mail to<EMAIL_ADDRESS>Please include

File No. SR-PCX-2006-16 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-PCX-2006-16. This file
number should be included on the subject line if e-mail 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 Commissions Internet Web site (http://www.sec.gov/rules/sro.shtml).

Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for inspection and copying in the
Commission's Public Reference Room. Copies of such filing also will be
available for inspection and copying at the principal office of the
NYSE Arca. All comments received will be posted without change; the
Commission does not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-PCX-
2006-16 and should be submitted by June 2, 2006.

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\25\
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    \25\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
 [FR Doc. E6-7270 Filed 5-11-06; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 83, Number 72 (Friday, April 13, 2018)]
[Rules and Regulations]
[Pages 15952-15954]
[FR Doc No: 2018-07716]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2017-1058]
RIN 1625-AA00

Safety Zone; Mississippi River, New Orleans, LA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing two temporary safety zones for
navigable waters of the Mississippi River, New Orleans, LA. These
actions are necessary to protect persons and vessels from potential
safety hazards associated with fireworks displays on or over this
navigable waterway. Entry into these zones is prohibited unless
authorized by the Captain of the Port Sector New Orleans (COTP) or a
designated representative.

DATES: This rule is effective from 8:00 p.m. on May 6, 2018 through
8:45 p.m. on May 25, 2018.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type USCG-
2017-1058 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Lieutenant Commander (LCDR) Howard Vacco, Sector New
Orleans, U.S. Coast Guard; telephone<PHONE_NUMBER>, email
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

AHP Above Head of Passes
CFR Code of Federal Regulations
COTP Captain of the Port Sector New Orleans
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard received notification of the following fireworks
displays that require safety zones:
    (1) On November 7, 2017, the New Orleans Tourism and Marketing
Corporation notified the Coast Guard that it would be conducting a
fireworks display from 7:45 p.m. through 8:45 p.m. on May 25, 2018. The
fireworks will be launched from a barge on the Lower Mississippi River
at approximate mile marker (MM) 95.9 above Head of Passes (AHP), New
Orleans, LA.
    (2) On March 14, 2018, the NOLA 2018 Foundation notified the Coast
Guard that it would be conducting a fireworks display from 8 p.m.
through 8:20 p.m. on May 6, 2018. The fireworks will be launched from a
barge on the Lower Mississippi River at approximate MM 95.4 AHP, New
Orleans, LA.
    In response to these notifications, on January 17, 2018, the Coast
Guard published a notice of proposed rulemaking (NPRM) titled Safety
Zone; Lower Mississippi River, New Orleans, LA (83 FR 2394). There we
stated why we issued the NPRM, and invited comments on our proposed
regulatory action related to this fireworks display. During the comment
period that ended March 19, 2018, we received no comments.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231. The Captain of the Port Sector New Orleans (COTP) has determined
that potential hazards associated with the fireworks to be used in the
May 6, 2018 and May 25, 2018 displays present a hazard to anyone within
a one-mile stretch of the launch barges. The purpose of this rule is to
ensure safety of persons and vessels on the navigable waters in the
safety zone before, during, and after the scheduled events.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received no comments on our NPRM published
January 17, 2018.
    The changes in the regulatory text from the proposed rule in the
NPRM include minor editorial changes where we refer to the time of
enforcement as the enforcement period, rather than the effective
period.
    This rule establishes two temporary safety zones on the following
dates and locations:
    1. Bayou Country Music Fest: A safety zone from 7:45 p.m. through
8:45 p.m. on May 25, 2018. The safety zone will cover all navigable
waters of the Lower Mississippi River between mile marker (MM) 95.4 and
MM 96.4 AHP.
    2. NOLA Tricentennial 2018 Jazz and Heritage Fest: A safety zone
from 8 p.m. through 9 p.m. on May 6, 2018. This safety zone will
encompass all navigable waters of the Lower Mississippi River between
MMs 95 and 96 AHP.
    Both safety zones encompass a one mile stretch of river with a
duration lasting no more than one hour. The duration of the zones is
intended to ensure the safety of persons and vessels on these navigable
waters before, during, and after the scheduled fireworks displays.
    No vessel or person is permitted to enter the safety zone without
obtaining permission from the COTP or a designated representative. A
designated representative is a commissioned, warrant, or petty officer
of the U.S. Coast Guard assigned to units under the operational control
of USCG Sector New Orleans. They may be contacted on VHF-FM Channel 16
or 67. Persons and vessels permitted to enter these safety zones must
transit at their slowest safe speed and comply with all lawful
directions issued by the COTP or the designated representative. The
COTP or a designated representative will inform the public through
Broadcast Notices to Mariners of any changes in the planned schedule.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders, and we
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13771 directs agencies to control
regulatory costs through a budgeting process. This rule has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, this rule has not been reviewed by the Office of
Management and Budget (OMB), and pursuant to OMB guidance it is exempt
from the requirements of Executive Order 13771.
    This regulatory action determination is based on these zones
lasting one hour and encompassing a one-mile stretch of the Lower
Mississippi River. In addition, vessel traffic seeking to transit the
areas can seek permission to enter from the COTP or his designated
representative.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard received no comments from the Small Business
Administration on this rulemaking. The Coast Guard certifies under 5
U.S.C. 605(b) that this rule will not have a significant economic
impact on a substantial number of small entities.
    While some owners or operators of vessels intending to transit the
safety zone may be small entities, for the reasons stated in section
V.A above, this rule will not have a significant economic impact on any
vessel owner or operator.
    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

C. Collection of Information

    This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
    Also, this rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. If
you believe this rule has implications for federalism or Indian tribes,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.

E. Unfunded Mandates Reform Act

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

F. Environment

    We have analyzed this rule under Department of Homeland Security
Directive 023-01 and Commandant Instruction M16475.1D, which guide the
Coast Guard in complying with the National Environmental Policy Act of
1969 (42 U.S.C. 4321-4370f), and have determined that this action is
one of a category of actions that do not individually or cumulatively
have a significant effect on the human environment. This rule involves
two safety zones lasting less than one hour each that will prohibit
entry within a one-mile stretch of the Lower Mississippi River. It is
categorically excluded from further review under paragraph L60(a) of
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A
Record of Environmental Consideration supporting this determination is
available in the docket where indicated under ADDRESSES.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.

0
2. Add Sec.  165.T08-1058 to read as follows:

Sec.  165.T08-1058  Safety Zones; Lower Mississippi River, New Orleans,
LA.

    (a) Safety zones. The following areas are safety zones:
    (1) Bayou Country Music Fest, New Orleans, LA--(i) Location. All
navigable waters of the Lower Mississippi River between mile marker
(MM) 95.4 and MM 96.4, above Head of Passes.

    (ii) Enforcement period. This rule will be enforced from 7:45 p.m.
through 8:45 p.m. on May 25, 2018.
    (2) NOLA Tricentennial 2018 Jazz and Heritage Fest--(i) Location.
All navigable waters of the Lower Mississippi River between mile marker
(MM) 94 and MM 95, above Head of Passes.
    (ii) Enforcement period. This rule will be enforced from 8 p.m.
through 9 p.m. on May 6, 2018.
    (b) Regulations. (1) In accordance with the general regulations in
Sec.  165.23, entry into these zones is prohibited unless specifically
authorized by the Captain of the Port Sector New Orleans (COTP) or a
designated representative. A designated representative is a
commissioned, warrant, or petty officer of the U.S. Coast Guard
assigned to units under the operational control of U.S. Coast Guard
Sector New Orleans.
    (2) Vessels requiring entry into this safety zone must request
permission from the COTP or a designated representative. They may be
contacted on VHF-FM Channel 16 or 67.
    (3) Persons and vessels permitted to enter these safety zones must
transit at their slowest safe speed and comply with all lawful
directions issued by the COTP or the designated representative.
    (c) Information broadcasts. The COTP or a designated representative
will inform the public through Broadcast Notices to Mariners of any
changes in the planned schedule.

    Dated: April 9, 2018.
Wayne R. Arguin,
Captain, U.S. Coast Guard, Captain of the Port Sector New Orleans.
[FR Doc. 2018-07716 Filed 4-12-18; 8:45 am]
 BILLING CODE 9110-04-P


[Federal Register Volume 81, Number 6 (Monday, January 11, 2016)]
[Notices]
[Pages 1281-1284]
[FR Doc No: 2016-295]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2009-0294; FMCSA-2011-0326; FMCSA-2011-0327; FMCSA-
2011-0367; FMCSA-2013-0192]

Qualification of Drivers; Exemption Applications; Diabetes

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

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

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SUMMARY: FMCSA announces its decision to renew the exemptions of 36
individuals from its rule prohibiting persons with insulin-treated
diabetes mellitus (ITDM) from operating commercial motor vehicles
(CMVs) in interstate commerce. FMCSA has statutory authority to exempt
individuals from this rule if the exemptions granted will not

compromise safety. The Agency has concluded that granting these
exemption renewals will provide a level of safety that is equivalent to
or greater than the level of safety maintained without the exemptions
for these CMV drivers.

DATES: Each group of renewed exemptions are effective from the dates
stated in the discussions below. Comments must be received on or before
February 10, 2016.

ADDRESSES: You may submit comments bearing the Federal Docket
Management System (FDMS) numbers: Docket No. FMCSA-2009-0294; FMCSA-
2011-0326; FMCSA-2011-0327; FMCSA-2011-0367; FMCSA-2013-0192, 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 or Courier: 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 number for this notice. Note that DOT posts all comments
received without change to http://www.regulations.gov, including any
personal information included in a comment. Please see the Privacy Act
heading below.
    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 Federal Docket Management System (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: Christine A. Hydock, Chief, Medical
Programs Division,<PHONE_NUMBER><EMAIL_ADDRESS>FMCSA,
Department of Transportation, 1200 New Jersey Avenue SE., Room W64-113,
Washington, DC 20590-0001. Office hours are from 8 a.m. to 5:30 p.m.
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption
from the Federal Motor Carrier Safety Regulations 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.'' The statute also allows the Agency to renew
exemptions at the end of the 2-year period. The 36 individuals listed
in this notice have recently become eligible for a renewed exemption
from the diabetes prohibition in 49 CFR 391.41(b)(3), which applies to
drivers of CMVs in interstate commerce. The drivers remain in good
standing with the Agency, have maintained their required medical
monitoring and have not exhibited any medical issues that would
compromise their ability to safely operate a CMV during the previous 2-
year exemption period.

Exemption Decision

    This notice addresses 36 individuals who have requested renewal of
their exemptions in accordance with FMCSA procedures. These 36 drivers
remain in good standing with the Agency, have maintained their required
medical monitoring and have not exhibited any medical issues that would
compromise their ability to safely operate a CMV during the previous 2-
year exemption period. Therefore, FMCSA has decided to extend each
exemption for a renewable two-year period. Each individual is
identified according to the renewal date.
    The exemptions are renewed subject to the following conditions: (1)
That each individual submit a quarterly monitoring checklist completed
by the treating endocrinologist as well as an annual checklist with a
comprehensive medical evaluation; (2) that each individual reports
within 2 business days of occurrence, all episodes of severe
hypoglycemia, significant complications, or inability to manage
diabetes; also, any involvement in an accident or any other adverse
event in a CMV or personal vehicle, whether or not it is related to an
episode of hypoglycemia; (3) that each individual submit an annual
ophthalmologist's or optometrist's report; and (4) that each individual
provide a copy of the annual medical certification to the employer for
retention in the driver's qualification file, or keep a copy in his/her
driver's qualification file if he/she is self-employed. The driver must
also have a copy of the certification when driving, for presentation to
a duly authorized Federal, State, or local enforcement official.

Basis for Renewing Exemptions

    Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no
longer than two years from its approval date and may be renewed upon
application for additional two year periods. The following groups of
drivers received renewed exemptions in the month of February and are
discussed below.
    As of February 6, 2016, and in accordance with 49 U.S.C. 31136(e)
and 31315, the following 6 individuals have satisfied the renewal
conditions for obtaining an exemption from the rule prohibiting drivers
with ITDM from driving CMVs in interstate commerce. (76 FR 79756; 77 FR
5873):

Howard A. Betz (OH)
Kevin J. Coppens (ME)
Frank H. Ford, Jr. (PA)
Daniel R. Harris (TX)
Joseph L. Owings (AL)
Jerry H. Small (NC)

    The drivers were included in Docket No. FMCSA-2011-0326. Their
exemptions are effective as of February 6, 2016 and will expire on
February 6, 2018.
    As of February 10, 2016, and in accordance with 49 U.S.C. 31136(e)
and 31315, the following 6 individuals, have satisfied the renewal
conditions for obtaining an exemption from the rule prohibiting drivers
with ITDM from driving CMVs in interstate commerce (76 FR 78720; 77 FR
7232):

Steve R. Fortunat (NJ)
Kenneth J. Hill (OH)
Cecil T. Keith (GA)
Frank E. Ray (KS)
Stanley L. Rybarcyzk (IL)
Gene A. Willias (WV)

    The drivers were included in Docket No. FMCSA-2011-0327. Their
exemptions are effective as of February 10, 2016 and will expire on
February 10, 2018.
    As of February 12, 2015, and in accordance with 49 U.S.C. 31136(e)
and

31315, the following individual, Guy B. Mayes (WA) has satisfied the
renewal conditions for obtaining an exemption from the rule prohibiting
drivers with ITDM from driving CMVs in interstate commerce (78 FR
78479; 79 FR 13086).
    The driver was included in Docket No. FMCSA-2013-0192. The
exemption is effective as of February 12, 2016 and will expire on
February 12, 2018.
    As of February 22, 2016, and in accordance with 49 U.S.C. 31136(e)
and 31315, the following 11 individuals have satisfied the renewal
conditions for obtaining an exemption from the rule prohibiting drivers
with ITDM from driving CMVs in interstate commerce. (77 FR 533; 77 FR
10607):

Garry L. Camden (IN)
Loren A. Cox (NY)
Darryl F. Gilbertson (WI)
Alfred Gutierrez II (OK)
Matthew D. Hulse (KS)
Neil E. Karvonen (WA)
Damon A. Kruger (CO)
Earl T. Morton, Jr. (VA)
Richard A. Norstebon (ND)
Donald J. Olbinski (IL)
Kevin E. Risley (IN)

    The drivers were included in Docket No. FMCSA-2011-0367. Their
exemptions are effective as of February 22, 2016 and will expire on
February 22, 2018.
    As of February 24, 2016, and in accordance with 49 U.S.C. 31136(e)
and 31315, the following 11 individuals have satisfied the renewal
conditions for obtaining an exemption from the rule prohibiting drivers
with ITDM from driving CMVs in interstate commerce. (78 FR 68092; 79 FR
8182):

Daniel C. Druffel (WA)
Gregory J. Godley (WA)
Troy A. Gortmaker (SD)
Charles M. Griswold (MA)
Justin R. Henneinke (CA)
William R. Huntley (MI)
Joseph I. Kulp (PA)
Kevin R. Mooney (WA)
Daniel D. Neale (CA)
Richard L. Sulzberger (IL)
Dirk Vanstralen (CA)

    The drivers were included in Docket No. FMCSA-2009-0294. Their
exemptions are effective as of February 24, 2016 and will expire on
February 24, 2018.
    As of February 27, 2015, and in accordance with 49 U.S.C. 31136(e)
and 31315, the following individual, Charles R. Clayton (NJ) has
satisfied the renewal conditions for obtaining an exemption from the
rule prohibiting drivers with ITDM from driving CMVs in interstate
commerce (78 FR 78479; 79 FR 13086).
    The driver was included in Docket No. FMCSA-2013-0192. The
exemption is effective as of February 27, 2016 and will expire on
February 27, 2018.
    Each of the 36 drivers in the aforementioned groups qualifies for a
renewal of the exemption. They have maintained their required medical
monitoring and have not exhibited any medical issues that would
compromise their ability to safely operate a CMV during the previous 2-
year exemption period.
    These factors provide an adequate basis for predicting each
driver's ability to continue to drive safely in interstate commerce.
Therefore, FMCSA concludes that extending the exemption for each of the
36 drivers for a period of two years is likely to achieve a level of
safety equal to that existing without the exemption. The drivers were
included in docket numbers FMCSA-2009-0294; FMCSA-2011-0326; FMCSA-
2011-0327; FMCSA-2011-0367; FMCSA-2013-0192.

Request for Comments

    FMCSA will review comments received at any time concerning a
particular driver's safety record and determine if the continuation of
the exemption is consistent with the requirements at 49 U.S.C. 31136(e)
and 31315. However, FMCSA requests that interested parties with
specific data concerning the safety records of these drivers submit
comments by February 10, 2016.
    FMCSA believes that the requirements for a renewal of an exemption
under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially
granting the renewal and then requesting and evaluating, if needed,
subsequent comments submitted by interested parties. As indicated
above, the Agency previously published notices of final disposition
announcing its decision to exempt these 36 individuals from rule
prohibiting persons with ITDM from operating CMVs in interstate
commerce in 49 CFR 391.41(b)(3). The final decision to grant an
exemption to each of these individuals was made on the merits of each
case and made only after careful consideration of the comments received
to its notices of applications. The notices of applications stated in
detail the medical condition of each applicant for an exemption from
rule prohibiting persons with ITDM from operating CMVs in interstate
commerce. That information is available by consulting the above cited
Federal Register publications.
    Interested parties or organizations possessing information that
would otherwise show that any, or all, of these drivers are not
currently achieving the statutory level of safety should immediately
notify FMCSA. The Agency will evaluate any adverse evidence submitted
and, if safety is being compromised or if continuation of the exemption
would not be consistent with the goals and objectives of 49 U.S.C.
31136(e) and 31315, FMCSA will take immediate steps to revoke the
exemption of a driver.

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 numbers FMCSA-2009-0294; FMCSA-
2011-0326; FMCSA-2011-0327; FMCSA-2011-0367; FMCSA-2013-0192 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-2009-0294; FMCSA-2011-0326; FMCSA-2011-0327; FMCSA-2011-0367;
FMCSA-2013-0192 and click ``Search.'' Next, click ``Open Docket
Folder'' and you will find all documents and comments related to the
proposed rulemaking.

    Dated: December 29, 2015.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2016-295 Filed 1-8-16; 8:45 am]
 BILLING CODE 4910-EX-P


[Federal Register Volume 82, Number 76 (Friday, April 21, 2017)]
[Notices]
[Pages 18828-18831]
[FR Doc No: 2017-08045]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2017-0018 (Notice No. 2017-01)]

Hazardous Materials: Information Collection Activities

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.

ACTION: Notice and request for comments.

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

SUMMARY: In accordance with the Paperwork Reduction Act of 1995, PHMSA
invites comments on 11 information collections pertaining to hazardous
materials transportation for which PHMSA intends to request renewal
from the Office of Management and Budget.

DATES: Interested persons are invited to submit comments on or before
June 20, 2017.

ADDRESSES: You may submit comments identified by the Docket Number
PHMSA-2017-0018 (Notice No. 2017-01) by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management System; U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: To the Docket Management System; Room W12-
140 on the ground floor of the West Building, 1200 New Jersey Avenue
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and
Docket Number (PHMSA-2017-0018) for this notice at the beginning of the
comment. To avoid duplication, please use only one of these four
methods. All comments received will be posted without change to the
Federal Docket Management System (FDMS) and will include any personal
information you provide.
    Requests for a copy of an information collection should be directed
to Steven Andrews or T. Glenn Foster, Standards and Rulemaking
Division,<PHONE_NUMBER>, Pipeline and Hazardous Materials Safety
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue SE., Washington, DC 20590-0001.
    Docket: For access to the dockets to read background documents or
comments received, go to http://www.regulations.gov or DOT's Docket
Operations Office (see ADDRESSES).
    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.

FOR FURTHER INFORMATION CONTACT: Steven Andrews or T. Glenn Foster,
Standards and Rulemaking Division,<PHONE_NUMBER>, Pipeline and
Hazardous Materials Safety Administration, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: Section 1320.8 (d), title 5, Code of Federal
Regulations (CFR) requires PHMSA to provide interested members of the
public and affected agencies an opportunity to comment on information
collection and recordkeeping requests. This notice identifies
information collection requests that PHMSA will be submitting to the
Office of Management and Budget (OMB) for renewal and extension. These
information collections are contained in 49 CFR 171.6 of the Hazardous
Materials Regulations (HMR; 49 CFR parts 171-180). PHMSA has revised
burden estimates, where appropriate, to reflect current reporting
levels or adjustments based on changes in proposed or final rules
published since the information collections were last approved. The
following information is provided for each information collection: (1)
Title of the information collection, including former title if a change
is being made; (2) OMB control number; (3) summary of the information
collection activity; (4) description of affected public; (5) estimate
of total annual reporting and recordkeeping burden; and (6) frequency
of collection. PHMSA will request a 3-year term of approval for each
information collection activity and will publish a notice in the
Federal Register upon OMB's approval.
    PHMSA requests comments on the following 11 information
collections:
    1. Title: Hazardous Materials Security Plans.
    OMB Control Number: 2137-0612.
    Summary: To assure public safety, shippers and carriers must take
reasonable measures to plan and implement procedures to prevent
unauthorized persons from taking control of, or attacking, hazardous
materials shipments. Part 172 of the HMR requires persons who offer or
transport certain hazardous materials to develop and implement written
plans to enhance the security of hazardous materials shipments. The
security plan requirements as prescribed in Sec.  172.800(b) apply to
specific types of shipments. Such shipments include but are not limited
to: Shipments greater than 3,000 kg (6,614 pounds) for solids or 3,000
liters (792 gallons) for liquids and gases in a single packaging such
as a cargo tank motor vehicle, portable tank, tank car, or other bulk
container; any quantity of a Division 1.1, 1.2, or 1.3 material; a
large bulk quantity of a Division 2.1 material; or any quantity of a
poison-by-inhalation material. A security plan will enable shippers and
carriers to reduce the possibility that a hazardous materials shipment
will be used as a weapon of opportunity by a terrorist or criminal.
    Affected Public: Shippers and carriers of hazardous materials in
commerce.
    Annual Reporting and Recordkeeping Burden:

Number of Respondents: 54,999.
Total Annual Responses: 54,999.
Total Annual Burden Hours: 427,719.
Frequency of Collection: On occasion.

    2. Title: Rulemaking, Special Permits, and Preemption Requirements.
    OMB Control Number: 2137-0051.
    Summary: This collection of information applies to procedures for
requesting changes, exceptions, and other determinations in relation to
the HMR. Specific areas covered in this

information collection include part 105, subparts A and B, ``Hazardous
Materials Program Definitions and General Procedures''; part 106,
subpart B, ``Participating in the Rulemaking Process''; part 107,
subpart B, ``Special Permits''; and part 107, subpart C,
``Preemption.'' The Federal hazardous materials transportation law
directs the Secretary of Transportation to prescribe regulations for
the safe transportation of hazardous materials in commerce. PHMSA is
authorized to accept petitions for rulemaking and appeals, as well as
applications for special permits, preemption determinations, and
waivers of preemption. The types of information collected include:
    (1) Petitions for Rulemaking: Any person may petition PHMSA to add,
amend, or delete a regulation in parts 110, 130, 171 through 180, or
may petition the Office of the Chief Counsel to add, amend, or delete a
regulation in parts 105, 106, or 107. Petitions submitted to PHMSA are
required to contain information as required by Sec.  106.100 of the
HMR.
    (2) Appeals: Except as provided in Sec.  106.40(e), any person may
submit an appeal to our actions in accordance with the Appeals
procedures found in Sec. Sec.  106.110 through 106.130.
    (3) Applications for Special Permit: Any person applying for a
special permit must include the citation of the specific regulation
from which the applicant seeks relief; specification of the proposed
mode or modes of transportation; detailed description of the proposed
special permit (e.g., alternative packaging, test, procedure, or
activity), including as appropriate, written descriptions, drawings,
flow charts, plans and other supporting documents, etc.
    (4) Applications for Preemption Determination: With the exception
of highway routing matters covered under 49 U.S.C. 5125(c), any person
directly affected by any requirement of a State, political subdivision,
or Indian tribe may apply to the Chief Counsel for a determination
whether that requirement is preempted by Sec.  107.202(a), (b), or (c).
The application must include the text of the State, political
subdivision, or Indian tribe requirement for which the determination is
sought; specify each requirement of the Federal hazardous materials
transportation law, regulations issued under the Federal hazardous
material transportation law, or hazardous material transportation
security regulations or directives issued by the Secretary of Homeland
Security with which the applicant seeks the State, political
subdivision, or Indian tribe requirement to be compared; explain why
the applicant believes the State, political subdivision, or Indian
tribe requirement should or should not be preempted under the standards
of Sec.  107.202; and state how the applicant is affected by the State,
political subdivision, or Indian tribe requirement.
    (5) Waivers of Preemption: With the exception of requirements
preempted under 49 U.S.C. 5125(c), any person may apply to the Chief
Counsel for a waiver of preemption with respect to any requirement
that: (1) The State, political subdivision thereof, or Indian tribe
acknowledges to be preempted under the Federal hazardous materials
transportation law, or (2) has been determined by a court of competent
jurisdiction to be so preempted. The Chief Counsel may waive preemption
with respect to such requirement upon a determination that such
requirement affords an equal or greater level of protection to the
public than is afforded by the requirements of the Federal hazardous
materials transportation law or the regulations issued thereunder, and
does not unreasonably burden commerce.
    The information collected under these application procedures is
used in the review process by PHMSA in determining the merits of the
petitions for rulemakings and for reconsideration of rulemakings, as
well as applications for special permits, preemption determinations,
and waivers of preemption to the HMR. The procedures governing these
petitions for rulemaking and for reconsideration of rulemakings are
covered in subpart B of part 106. Applications for special permits,
preemption, determinations, and waivers of preemption are covered under
subparts B and C of part 107. Rulemaking procedures enable PHMSA to
determine if a rule change is necessary, is consistent with public
interest, and maintains a level of safety equal to or superior to that
of current regulations. Special permit procedures provide the
information required for analytical purposes to determine if the
requested relief provides for a comparable level of safety as provided
by the HMR. Preemption procedures provide information for PHMSA to
determine whether a requirement of a State, political subdivision, or
Indian tribe is preempted under 49 U.S.C. 5125, or regulations issued
thereunder, or whether a waiver of preemption should be issued.
    Affected Public: Shippers, carriers, packaging manufacturers, and
other affected entities.
    Annual Reporting and Recordkeeping Burden:

Number of Respondents: 3,304
Total Annual Responses: 4,294
Total Annual Burden Hours: 4,899
Frequency of Collection: On occasion

    3. Title: Requirements for United Nations (UN) Cylinders.
    OMB Control Number: 2137-0621.
    Summary: This information collection and recordkeeping burden is
the result of efforts to amend the HMR to adopt standards for the
design, construction, maintenance, and use of cylinders and multiple-
element gas containers (MEGCs) based on the standards contained in the
United Nations (UN) Recommendations on the Transport of Dangerous
Goods. Aligning the HMR with the UN Recommendations promotes
flexibility, permits the use of technological advances for the
manufacture of the pressure receptacles, provides for a broader
selection of pressure receptacles, reduces the need for special
permits, and facilitates international commerce in the transportation
of compressed gases. Information collection requirements address
domestic and international manufacturers of cylinders that request
approval by the approval agency for cylinder design types. The approval
process for each cylinder design type includes review, filing, and
recordkeeping of the approval application. The approval agency is
required to maintain a set of the approved drawings and calculations
for each design it reviews and a copy of each initial design type
approval certificate approved by the Associate Administrator for not
less than 20 years.
    Affected Public: Fillers, owners, users, and retesters of UN
cylinders.
    Annual Reporting and Recordkeeping Burden:

Number of Respondents: 50
Total Annual Responses: 150
Total Annual Burden Hours: 900
Frequency of Collection: On occasion

    4. Title: Response Plans for Shipments of Oil.
    OMB Control Number: 2137-0591.
    Summary: In recent years, several major oil discharges damaged the
marine environment of the United States. Under authority of the Federal
Water Pollution Control Act, as amended by the Oil Pollution Act of
1990, PHMSA issued regulations in 49 CFR part 130 that require
preparation of written spill response plans.
    Affected Public: Carriers that transport oil in bulk, by motor
vehicle or rail.
    Annual Reporting and Recordkeeping Burden:

Number of Respondents: 8,000
Total Annual Responses: 8,000

Total Annual Burden Hours: 10,560
Frequency of Collection: On occasion

    5. Title: Cargo Tank Specification Requirements.
    OMB Control Number: 2137-0014.
    Summary: This information collection consolidates and describes the
information collection provisions in parts 107, 178, and 180 of the HMR
involving the manufacture, qualification, maintenance, and use of all
specification cargo tank motor vehicles. It also includes the
information collection and recordkeeping requirements for persons who
are engaged in the manufacture, assembly, requalification, and
maintenance of DOT specification cargo tank motor vehicles. The types
of information collected include:
    (1) Registration Statements: Cargo tank manufacturers and
repairers, as well as cargo tank motor vehicle assemblers, are required
to be registered with DOT and must furnish information relative to
their qualifications to perform the functions in accordance with the
HMR. DOT uses the registration statements to identify these persons to
ensure they possess the knowledge and skills necessary to perform the
required functions and that they are performing the specified functions
in accordance with the applicable regulations.
    (2) Requalification and Maintenance Reports: These reports are
prepared by persons who requalify or maintain cargo tanks. This
information is used by cargo tank owners, operators and users, and DOT
compliance personnel to verify that the cargo tanks are requalified,
maintained, and in proper condition for the transportation of hazardous
materials.
    (3) Manufacturers' Data Reports, Certificates, and Related Papers:
These reports are prepared by cargo tank manufacturers and certifiers.
They are used by cargo tank owners, operators, users, and DOT
compliance personnel to verify that a cargo tank motor vehicle was
designed and constructed to meet all requirements of the applicable
specification.
    Affected Public: Manufacturers, assemblers, repairers,
requalifiers, certifiers, and owners of cargo tanks.
    Annual Reporting and Recordkeeping Burden:

Number of Respondents: 41,366
Total Annual Responses: 132,600
Total Annual Burden Hours: 101,507
Frequency of Collection: On occasion

    6. Title: Container Certification Statements.
    OMB Control Number: 2137-0582.
    Summary: Shippers of explosives, in freight containers or transport
vehicles by vessel, are required to certify on shipping documentation
that the freight container or transport vehicle meets minimal
structural serviceability requirements. This requirement is intended to
ensure an adequate level of safety for transport of explosives aboard
vessel and consistency with similar requirements in international
standards.
    Affected Public: Shippers of explosives in freight containers or
transport vehicles by vessel.
    Annual Reporting and Recordkeeping Burden:

Number of Respondents: 650
Total Annual Responses: 890,000
Total Annual Burden Hours: 14,908
Frequency of Collection: On occasion

    7. Title: Testing Requirements for Non-Bulk Packaging.
    OMB Control Number: 2137-0572
    Summary: This information collection consolidates and describes the
information provisions in parts 173 and 180 of the HMR on the testing
requirements for non-bulk packagings. This OMB control number covers
performance-oriented packaging standards and allows packaging
manufacturers and shippers more flexibility in selecting more
economical packagings for their products. This information collection
also allows customizing the design of packagings to better suit the
transportation environment that they will encounter and encourages
technological innovations, decreases packaging costs, and significantly
reduces the need for special permits.
    Affected Public: Each non-bulk packaging manufacturer that tests
packagings to ensure compliance with the HMR.
    Annual Reporting and Recordkeeping Burden:

Number of Respondents: 5,000
Total Annual Responses: 15,500
Total Annual Burden Hours: 32,500
Frequency of Collection: On occasion

    8. Title: Testing, Inspection, and Marking Requirements for
Cylinders.
    OMB Control Number: 2137-0022
    Summary: Requirements in Sec.  173.301 for qualification,
maintenance, and use of cylinders require that cylinders be
periodically inspected and retested to ensure continuing compliance
with packaging standards. Information collection requirements address
registration of retesters and marking of cylinders by retesters with
their identification number and retest date following the completion of
required tests. Records showing the results of inspections and retests
must be kept by the cylinder owner or designated agent until expiration
of the retest period or until the cylinder is re-inspected or retested,
whichever occurs first. These requirements are intended to ensure that
retesters have the qualifications to perform tests and identify to
cylinder fillers and users that cylinders are qualified for continuing
use. Information collection requirements in Sec.  173.303 require that
fillers of acetylene cylinders keep, for at least 30 days, a daily
record of the representative pressure to which cylinders are filled.
    Affected Public: Fillers, owners, users, and retesters of reusable
cylinders.
    Annual Reporting and Recordkeeping Burden:

Number of Respondents: 139,352
Total Annual Responses: 153,287
Total Annual Burden Hours: 171,462
Frequency of Collection: On occasion

    9. Title: Flammable Cryogenic Liquids.
    OMB Control Number: 2137-0542
    Summary: Provisions in Sec.  177.840(a)(2) specify certain safety
procedures and documentation requirements for drivers of motor vehicles
transporting flammable cryogenic liquids. This information allows the
driver to take appropriate remedial actions to prevent a catastrophic
release of the flammable cryogenics should the temperature of the
material begin to rise excessively or if the travel time will exceed
the safe travel time. These requirements are intended to ensure a high
level of safety when transporting flammable cryogenics due to their
extreme flammability and high compression ratio when in a liquid state.
    Affected Public: Carriers of cryogenic materials.
    Annual Reporting and Recordkeeping Burden:

Number of Respondents: 65
Total Annual Responses: 18,200
Total Annual Burden Hours: 1,213
Frequency of Collection: On occasion

    10. Title: Approval for Hazardous Materials.
    OMB Control Number: 2137-0557
    Summary: Without these requirements there is no means to: (1)
Determine whether applicants who apply to become designated approval
agencies are qualified to evaluate package design, test packages,
classify hazardous materials, etc.; (2) verify that various containers
and special loading requirements for vessels meet the requirements of
the HMR; and (3) assure that regulated hazardous materials pose no
danger to life and property during transportation.
    There are several approval provisions contained in the HMR and
associated procedural regulations. Responses to

these collections of information are required to obtain benefits, such
as becoming an approval or certification agency, or to obtain a
variance from packaging or handling requirements based on information
provided by the respondent. These benefits and variances involve areas,
for example, such as UN third-party certification; authorization to
examine and test lighters; authorization to examine and test
explosives; and authorization to re-qualify DOT cylinders
    Affected Public: Business and other entities who must meet the
approval requirements in the HMR.
    Annual Reporting and Recordkeeping Burden:

Number of Respondents: 10,723
Total Annual Responses: 11,074
Total Annual Burden Hours: 28,270
Frequency of Collection: On occasion

    11. Title: Rail Carrier and Tank Car Tanks Requirements, Rail Tank
Car Tanks--Transportation of Hazardous Materials by Rail.
    OMB Control Number: 2137-0559
    Summary: This information collection consolidates and describes the
information provisions in parts 172, 173, 174, 179, and 180 of the HMR
on the transportation of hazardous materials by rail and the
manufacture, qualification, maintenance, and use of tank cars. The
types of information collected include:
    (1) Approvals of the Association of American Railroads (AAR) Tank
Car Committee: An approval is required from the AAR Tank Car Committee
for a tank car to be used for a commodity other than those specified in
part 173 and on the certificate of construction. This information is
used to ascertain whether a commodity is suitable for transportation in
a tank car. AAR approval is also required for an application for
approval of designs, materials and construction, conversion or
alteration of tank car tanks constructed to a specification in part
179, or an application for construction of tank cars to any new
specification. This information is used to ensure that the design,
construction, or modification of a tank car or the construction of a
tank car to a new specification is performed in accordance with the
applicable requirements.
    (2) Progress Reports: Each owner of a tank car that is required to
be modified to meet certain requirements specified in Sec.  173.31 must
submit a progress report to the Federal Railroad Administration (FRA).
FRA uses this information to ensure that all affected tank cars are
modified before the regulatory compliance date.
    (3) FRA Approvals: An approval is required from FRA to transport a
bulk packaging (such as a portable tank, IM portable tank, intermediate
bulk container, cargo tank, or multi-unit tank car tank) containing a
hazardous material in container-on-flat-car or trailer-on-flat-car
service other than as authorized by Sec.  174.63. FRA uses this
information to ensure that the bulk package is properly secured using
an adequate restraint system during transportation. An FRA approval is
also required for the movement of any tank car that does not conform to
the applicable requirements in the HMR. These latter movements are
currently being reported under the information collection for special
permit applications.
    (4) Manufacturer Reports and Certificate of Construction: These
documents are prepared by tank car manufacturers and used by owners,
users, and FRA personnel to verify that rail tank cars conform to the
applicable specification.
    (5) Quality Assurance Program: Facilities that build, repair, and
ensure the structural integrity of tank cars are required to develop
and implement a quality assurance program. This information is used by
the facility and DOT compliance personnel to ensure that each tank car
is constructed or repaired in accordance with the applicable
requirements.
    (6) Inspection Reports: A written report must be prepared and
retained for each tank car that is inspected and tested in accordance
with Sec.  180.509 of the HMR. Rail carriers, users, and FRA use this
information to ensure that rail tank cars are properly maintained and
in safe condition for transporting hazardous materials.
    Affected Public: Manufacturers, owners, and rail carriers of tank.
    Annual Reporting and Recordkeeping Burden:

Number of Respondents: 266
Total Annual Responses: 17,685
Total Annual Burden Hours: 2,834
Frequency of Collection: Annually

    Issued in Washington, DC, on April 17, 2017.
William S. Schoonover,
Associate Administrator of Hazard Materials Safety, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2017-08045 Filed 4-20-17; 8:45 am]
 BILLING CODE 4910-60-P