[Federal Register: January 17, 2008 (Volume 73, Number 12)]
[Notices]
[Page 3316-3317]
[DOCID:fr17ja08-111]

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

Privacy Act of 1974: System of Records

AGENCY: Department of Transportation (DOT), Office of the Secretary.

ACTION: Notice to modify a system of records.

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SUMMARY: DOT proposes to modify a system of records under the Privacy
Act of 1974. The system is DOT's Docket Management System (DMS), which
is being modified to reflect: (1) Incorporation in the new Government-
wide Federal DMS; (2) relocation of DOT's Headquarters Building (HQ),
in which DMS is located; and (3) new name of the organizational entity
of which DMS is a part, and its location in the new DOT HQ. This system
would not duplicate any other DOT system of records.

EFFECTIVE DATE: This notice will be effective, without further notice,
on February 26, 2008, unless modified by a subsequent notice to
incorporate comments received by the public. Comments must be received
by February 19, 2008 to be assured consideration.

ADDRESSES: Send comments to Habib Azarsina, Acting Departmental Privacy
Officer, S-80, United States Department of Transportation, Office of
the Secretary of Transportation, 1200 New Jersey Avenue, SE.,
Washington DC 20590 or<EMAIL_ADDRESS>
FOR FURTHER INFORMATION CONTACT: Habib Azarsina, Acting Departmental
Privacy Officer, S-80, United States Department of Transportation,
Office of the Secretary of Transportation, 1200 New Jersey Avenue, SE.,
Washington DC 20590; telephone<PHONE_NUMBER>, or<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The DOT system of records notice subject to
the Privacy Act of 1974 (5 U.S.C. 552a), as amended, as proposed to be
modified, is available from the above mentioned address and appears
below:
 DOT/ALL 14

System name:
    Federal Docket Management System (FDMS).

Security classification:
    Unclassified, non-sensitive.

System location:
    The system is located in U.S. Department of Transportation, Office
of Information Services, Docket Operations, M-30, New Jersey Ave., SE.,
Room W12-140, Washington, DC 20590.

Categories of individuals covered by the system:
    Individuals who participate in proceedings at DOT that are covered
by the Administrative Procedure Act (APA), and who provide information
about their identities. These include proceedings conducted by DOT and
by the Department of Homeland Security's U.S. Coast Guard (USCG) and
Transportation Security Administration (TSA).

Categories of records in the system:
    DOT, USCG, and TSA rulemaking and related documents issued in
informal rulemakings, and public comments thereon; non-rulemaking and
related documents, and public comments thereon; in formal rulemakings,
motions, petitions, complaints, and related documents and formal
responses thereto.

Authority for maintenance of the system:
    5 U.S.C. 551 et seq.

Purpose(s):
    To facilitate involvement of the public in APA and related
proceedings. Routine uses of records maintained in the system,
including categories of users and the purposes of such uses: See
Prefatory Statement of General Routine Uses.

Disclosure to consumer reporting agencies:
    None

Policies and practices for storing, retrieving, accessing, retaining,
and disposing of records in the system:
Storage:
    Electronically on a publicly-accessible website.

Retrievability:
    Documents are retrievable through FDMS by name of individual
submitting comment, and by docket number.

Safeguards:
    Records are freely available to anyone.

Retention and disposal:
    Paper copies are returned to the originating office upon transfer
to electronic medium. Electronic version is retained indefinitely at
the discretion of DOT, USCG, or TSA, as appropriate.

System manager(s) and address:
    U.S. Department of Transportation, Dockets Program Manager, Office
of Information Services, Docket Operations, M-30, 1200 New Jersey Ave.,
SE., Room W12-140, Washington, DC 20590.

Notification procedure:
    Same as ``System Manager.''

Record access procedures:
    Same as ``System Manager.''

Contesting record procedures:
    Same as ``System Manager.''

Record source categories:
    Individuals participating in DOT, USCG, or TSA APA proceedings who
provide information about their identities.

Exemptions claimed for the system:
    None.

Habib Azarsina,
Acting Departmental Privacy Officer.
 [FR Doc. E8-785 Filed 1-16-08; 8:45 am]

BILLING CODE 4910-9X-P


[Federal Register Volume 81, Number 103 (Friday, May 27, 2016)]
[Notices]
[Pages 33732-33733]
[FR Doc No: 2016-11981]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

Hazardous Materials: Notice of Applications for Special Permits

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

ACTION: List of applications for modification of special permits.

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SUMMARY: In accordance with the procedures governing the application
for, and the processing of, special permits from the Department of
Transportation's Hazardous Material Regulations (49 CFR part 107,
subpart B), notice is hereby given that the Office of Hazardous
Materials Safety has received the application described herein. Each
mode of transportation for which a particular special permit is
requested is indicated by a number in the ``Nature of Application''
portion of the table below as follows: 1--Motor vehicle, 2--Rail
freight, 3--Cargo vessel, 4--Cargo aircraft only, 5--Passenger-carrying
aircraft.

DATES: Comments must be received on or before June 27, 2016.
    Address Comments to: Record Center, Pipeline and Hazardous
Materials Safety Administration U.S. Department of Transportation,
Washington, DC 20590.
    Comments should refer to the application number and be submitted in
triplicate. If confirmation of receipt of comments is desired, include
a self-addressed stamped postcard showing the special permit number.

FOR FURTHER INFORMATION CONTACT: Ryan Paquet, Director, Office of
Hazardous Materials Approvals and Permits Division, Pipeline and
Hazardous Materials Safety Administration, U.S. Department of
Transportation, East Building, PHH-30, 1200 New Jersey Avenue SE.,
Washington, DC 20590-0001,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Copies of the applications are available for
inspection in the Records Center, East Building, PHH-30, 1200 New
Jersey Avenue SE., Washington DC or at http://regulations.gov.
    This notice of receipt of applications for special permit is
published in accordance with part 107 of the Federal hazardous
materials transportation law (49 U.S.C. 5117(6); 49 CFR 1.53(b)).

    Issued in Washington, DC, on May 11, 2016.
Donald Burger,
Chief, Office of the Special Permits and Approvals.

                                              Special Permits Data
----------------------------------------------------------------------------------------------------------------
                                                                                Nature of the special
     Application No.        Docket No.         Applicant        Regulation(s) affected       permits thereof
----------------------------------------------------------------------------------------------------------------
11180-M.................  ..............  AFFIVAL INC........  Part 172 Subparts D, E,   To modify the special
                                                                and F, 173.24(c), Part    permit to authorize
                                                                173 Subparts E and F.     metal tubes with a
                                                                                decreased diameter and
                                                                                an increased length to
                                                                                be authorized under
                                                                                the special permit.
12440-M.................  ..............  LUXFER INC.........  173.301(a)(1), 173.302a,  To modify the special
                                                                173.304a, 180.205(a).     permit to authorize a
                                                                                change in the maximum
                                                                                diameter for
                                                                                authorized cylinders.
15852-M.................  ..............  NUANCE MEDICAL, LLC  173.304a (a)(1),          To modify the special
                                                                173.306(a).               permit to authorize
                                                                                more than 24
                                                                                containers per outer
                                                                                package.
16371-M.................  ..............  VOLKSWAGEN GROUP OF  173.185(b)..............  To modify the permit to
                                           AMERICA, INC.                                  reflect the correct
                                                                                part number of the
                                                                                authorized battery.

16474-M.................  ..............  RETRIEV              172.102(c)(1) Special     To modify the special
                                           TECHNOLOGIES INC.    Provision 130, Part 172   permit to authorize
                                                                Subparts C, D, and E,     lithium metal
                                                                173.185(c), 173.185(d).   batteries with a
                                                                                lithium content
                                                                                greater than 5 grams.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2016-11981 Filed 5-26-16; 8:45 am]
BILLING CODE M


[Federal Register Volume 78, Number 243 (Wednesday, December 18, 2013)]
[Notices]
[Pages 76685-76689]
[FR Doc No: 2013-30045]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-71061; File No. SR-EDGA-2013-36]

Self-Regulatory Organizations; EDGA Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend
EDGA Rule 11.12, Limitations of Liability

December 12, 2013.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on December 6, 2013, EDGA Exchange, Inc. (the ``Exchange'' or
``EDGA'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change

    The Exchange proposes to amend paragraph (d)(3) of Rule 11.12 to
provide Members \3\ with additional time within which to submit a
written claim for compensation for ``losses resulting directly from the
malfunction of the Exchange's physical equipment, devices and/or
programming or the negligent acts or omissions of its employees''
(``Exchange Systems Issues'').
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    \3\ The term ``Member'' is defined as ``any registered broker or
dealer, or any person associated with a registered broker or dealer,
that has been admitted to membership in the Exchange. A Member will
have the status of a ``member'' of the Exchange as that term is
defined in Section 3(a)(3) of the Act.'' See Exchange Rule 1.5(n).
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    In addition, the Exchange proposes to add a new paragraph (e) to
Rule 11.12 to permit the Exchange, subject to certain conditions and
limitations, to compensate Members for certain losses incurred in
connection with orders or portions of orders routed by the Exchange
through its affiliated routing broker-dealer, Direct Edge ECN LLC (d/b/
a/DE Route) (``DE Route''), to Trading Centers \4\ where such losses
are claimed by the Member to have resulted directly from a malfunction
of the physical equipment, devices and/or programming, or the negligent
acts or omissions of the employees, of such Trading Centers (``Trading
Center Systems Issue'').
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    \4\ Rule 600(b)(78) of Regulation NMS, 17 CFR 242.600(b)(78),
defines a ``Trading Center'' as ``a national securities exchange or
national securities association that operates an SRO trading
facility, an alternative trading system, an exchange market maker,
an OTC market maker, or any other broker or dealer that executes
orders internally by trading as principal or crossing orders as
agent.'' See also Exchange Rule 2.11(a).
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    All of the changes described herein are applicable to Members.\5\
The text of the proposed rule change is available on the Exchange's
Internet Web site at www.directedge.com, at the Exchange's principal
office, and at the Public Reference Room of the Commission.
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    \5\ A Member is any registered broker or dealer, or any person
associated with a registered broker or dealer that has been admitted
to membership in the Exchange.
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II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of these statements may be examined at
the places specified in Item IV below. The self-regulatory organization
has prepared summaries, set forth in sections A, B and C below, of the
most significant aspects of such statements.

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

1. Purpose
    The Exchange proposes to amend Rule 11.12 to: (i) Amend paragraph
(d)(3) to provide Members with additional time within which to submit a
written claim for compensation for Exchange Systems Issues; and (ii)
add a new paragraph (e) permitting the Exchange, subject to certain
conditions and limitations, to compensate Members for certain losses
incurred in connection with orders or portions of orders routed by the
Exchange through DE Route to Trading Centers where such losses are
claimed by the Member to have resulted directly from a Trading Center
Systems Issue.
Extension of Deadline To Submit Claims
    Rule 11.12 currently states that, except as provided in subsection
(d) of the Rule, the Exchange and its affiliates shall not be liable
for any losses, damages, or other claims arising out of the Exchange or
its use. Exchange Rule 11.12(d) provides a limited exception to its
general limitation of liability that allows for the payment of
compensation to Members for Exchange Systems Issues, subject to certain
conditions. Subsection (d)(1) of Rule 11.12 states that for the
aggregate of all claims made by all market participants related to the
use of the Exchange during a single calendar month, the Exchange's
payments under Rule 11.12 shall not exceed the larger of $500,000, or
the amount of the recovery obtained by the Exchange under any
applicable insurance policy.
    Currently, Rule 11.12(d)(3) requires Members to submit claims for
compensation to the Exchange by 12:00 p.m. Eastern Time on the business
day following the day on which the Member's use of the Exchange gave
rise to the claim. The Exchange proposes to extend the deadline to
submit a claim to no later than 4:00 p.m. Eastern Time, or 1:00 p.m. in
the event of an early market close,\6\ on the second business day
following the day on which the Member's use of the Exchange gave rise
to the claim. The Exchange believes that such expansion of time is
reasonable given that Members often do not have all the necessary
information to substantiate all facts bearing on the accuracy and
completeness of a claim within the required current timeframe under
Rule 11.12(d). The expansion of time to submit compensation claims
should, therefore, increase the likelihood that Members will be able to
submit claims to the Exchange in a timely manner.
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    \6\ Regular trading hours for days when the markets close early
are typically 9:30 a.m. to 1:00 p.m. Eastern Time on the day after
Thanksgiving and on Christmas Eve, unless Christmas Eve happens to
fall on a weekend. See, e.g., Direct Edge Trading Notice
13-47: Market Holiday Reminder--Thanksgiving. http://www.directedge.com/About/exchangenotices/ViewNewsletterDetail.aspx?NewsletterID=1143.
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Reimbursement for Losses Sustained at Trading Centers
    The Exchange also proposes to amend Exchange Rule 11.12 to add a
new paragraph (e) that would authorize the Exchange, subject to express
conditions and limitations, to compensate Members for losses relating
to orders routed by the Exchange through DE Route to Trading Centers
that the Member claims resulted directly from a Trading Center Systems
Issue.
    The Exchange believes that the proposed rule change will provide a
remedy, not currently available under Rule 11.12, to Members that
experience losses due to Trading Center Systems Issues after DE Route
routed the Members' orders to a Trading Center that experienced such
issues. The Exchange's authority to compensate Members for losses under
Rule 11.12(d) only covers losses incurred as a result of Exchange
Systems Issues, and does not currently extend to Trading Center Systems
Issues. Even if the Exchange, via DE Route, were to seek and receive
compensation on behalf of a Member from a Trading Center relating to a
Trading Center Systems Issue, it does not currently have the authority
to, in turn, pass such compensation along to the affected Member. The
Exchange, therefore, proposes to add a new paragraph (e) to Rule 11.12
as an accommodation to Members, whereby the Exchange, via DE Route,
would employ reasonable efforts to submit Members' claims for
compensation on such Members' behalf to a Trading Center, and pass
along to such Members the full amount of compensation, if any, obtained
by DE Route from such Trading Center.\7\
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    \7\ DE Route is considered a facility of the Exchange, and,
therefore, claims for compensation due to an Exchange Systems Issue
experienced by DE Route must be submitted in accordance with
Exchange Rule 11.12(d).
---------------------------------------------------------------------------

    Under proposed Rule 11.12(e), the Exchange would undertake to
accept claims for losses submitted by Members, which claims must
contain representations from such Members as to the accuracy of the
information contained therein and that any losses incurred were the
direct result of a Trading Center Systems Issue.\8\ The Exchange would
employ reasonable efforts to submit such claims, via DE Route, to the
Trading Center in question. If and to the extent that DE Route were to
receive compensation from a Trading Center in response to a claim
submitted on behalf of a Member, the full amount of such compensation
would be passed through to the Member.
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    \8\ Members receive reports from the Exchange shortly after a
trade is consummated indicating whether their order, or a portion
thereof, was executed at a Trading Center. The report will indicate
the size and price of the execution on the Trading Center.
---------------------------------------------------------------------------

    Proposed Rule 11.12(e)(1) would require that a Member seeking
compensation for a loss due to a Trading Center Systems Issue must
submit its claim to the Exchange in writing. The proposed rule would
not include a specific deadline by which Members must submit claims for
compensation. The Exchange notes that Trading Centers that are national
securities exchanges impose different deadlines by which their Members
must submit claims for compensation,\9\ and that many Trading Centers
that are not national securities exchanges either do not impose any
deadline or otherwise handle requests for compensation on a case-by-
case basis. It is, therefore, incumbent on, and the sole responsibility
of, the Member to submit claims to the Exchange in a timely manner so
that the Exchange may then forward such claim, via DE Route, in advance
of any deadline required by that Trading Center. Upon receipt of a
Member's claim, the Exchange would only verify that a valid order was
submitted by the Member and accepted and acknowledged by the Exchange,
that the Member's order or a portion of the order was routed by the
Exchange via DE Route to a Trading Center, and that the Member
represented that it incurred a loss as a result of a Trading Center
Systems Issue. The Exchange would then use reasonable efforts to
forward the claim, via DE Route, to such Trading Center.
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    \9\ See Nasdaq Stock Market LLC Rule 4626 (requiring claims for
compensation to be submitted by 12:00 p.m. Eastern Time on T+1). See
also NYSE Arca, Inc. Options Rule 14.2, NYSE MKT LLC Rule 905NY,
Chicago Board Options Exchange, Incorporated Rule 6.7, BATS
Exchange, Inc. Rule 11.16, and BATS-Y Exchange, Inc. Rule 11.16
(requiring claims for compensation to be submitted by the open of
regular trading hours on T+1).
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    Proposed Rule 11.12(e)(2) would state that the Exchange would pass
along to the Member the full amount of any compensation that the
Exchange, via DE Route, received from a Trading Center as a result of a
claim submitted on

behalf of the Member. Any compensation paid to the Member would be paid
solely from the compensation, if any, recovered from that Trading
Center and not from any other source.
    Proposed Rule 11.12(e)(3) would account for the circumstance where
more than one Member submitted a claim for loss resulting from the same
Trading Center Systems Issue and the total amount of compensation
received from the Trading Center is insufficient to fully satisfy the
claims of all such Members. In such case, the Exchange would
proportionally allocate the total amount received from the Trading
Center, if any, among all such Members' claims based on the proportion
that each such claim bears to the sum of all such claims. The Exchange
believes that this provision will provide for equitable compensation
among all Members that submit a valid claim related to a Trading Center
Systems Issue by ensuring that Members are compensated on a pro rata
basis.
    The payment of claims submitted in response to an Exchange Systems
Issue would be separate and apart from any pass-through of compensation
paid due to a Trading Center Systems Issue. Proposed Rule 11.12(e)(4)
would state that any pass-through of compensation to a Member in
accordance with Rule 11.12(e) would be unrelated to any other claims
for compensation that are made due to an Exchange Systems Issues under
Exchange Rule 11.12(d)(3). Accordingly, proposed Rule 11.12(e)(4) would
state that any compensation paid to Members from reimbursement
recovered from a Trading Center would not count against the Exchange's
$500,000 monthly liability limit set forth in Rule 11.12(d)(1), nor any
applicable insurance maintained by the Exchange.
    Notwithstanding the foregoing, the Exchange is not proposing to
undertake or assume any responsibility to: (1) Independently validate
information submitted by a Member in connection with a claim for
compensation for loss arising out of a Trading Center Systems Issue,
other than the ticker, size and side of the affected orders and the
Trading Center to which the affected orders were routed and alleged to
have experienced a Trading Center Systems Issue; (2) ascertain or
comply with any mandatory deadlines within which to submit claims for
compensation to a Trading Center; (3) guarantee that any compensation
will be procured from a Trading Center; (4) negotiate agreements with
any Trading Centers to require compensation under any circumstances; or
(5) take any additional steps with respect to a Trading Center Systems
Issue if such Trading Center denies or fails to respond to any claim
for compensation, in whole or in part. In other words, the Exchange
will, upon receipt of a claim for compensation from a Member for loss
resulting from a Trading Center Systems Issue, reasonably endeavor to
submit such claim, via DE Route, to the applicable Trading Center as
soon as reasonably practicable, and if DE Route in turns receives an
accommodation from such Trading Center, such accommodation will be
passed along to the Member via the Exchange. Neither the Exchange nor
DE Route will be under any obligation to know any Trading Center's
rules, procedures and/or customs, to the extent any exist, for the
submission of claims for compensation, nor to dispute a Trading
Center's denial of a claim, whether in whole or in part, nor to take
any further actions with respect to such claim in the event that the
Trading Center does not respond at all to the claim. Accordingly, with
this proposed rule change, the Exchange is not assuming any additional
liability to Members for losses claimed to have resulted from Trading
Center Systems Issues; rather, it proposes to serve a purely
ministerial role, given the contractual privity that exists between DE
Route and Trading Centers, in the submission of Members' claims for
compensation to such Trading Centers on their behalf. To that end,
proposed Rule 11.12(e)(5) would make clear that under no circumstances
will the Exchanges' inability to procure compensation from a Trading
Center, in whole or in part, for whatever reason, give rise to a claim
for compensation from the Exchange pursuant to paragraph (d) of Rule
11.12 as a ``negligent act or omission of an Exchange employee.''
Proposed Rule 11.12(e)(5) would further state that the Exchange would
not be liable should the Trading Center deny such claim made pursuant
to proposed Rule 11.12(e), in whole or in part, for any reason.
    The Exchange believes that the provisions outlined in the above
paragraph are equitable because any claim submitted under the proposed
Rule 11.12(e) would be subject to the rules, procedures, and discretion
of the Trading Center in question. It is the Trading Center, and not
the Exchange or DE Route, that ultimately decides whether to approve or
deny a Member's claim, or even whether to act on such request at all.
For example, the Exchange has no discretion over or responsibility for
the information provided by the Member in its claim, and no discretion
over or responsibility for whether such information is sufficient for
the Trading Center to provide compensation. In addition, any claim
submitted under the proposal would be subject to compensation only to
the extent that the Trading Center provided such compensation to DE
Route. Accordingly, because it is the Trading Center, and not the
Exchange or DE Route, that ultimately decides whether a claim for
compensation would be granted, the Exchange believes the proposal is
fair and just in limiting the Exchange's liability in the event a
Trading Center determines, for any reason, to deny a claim, in whole or
in part, or even not to respond to such claim.
Implementation Date
    The Exchange intends to implement the proposed rule changes no
later than January 15, 2014 and will announce its availability via a
trading notice to be posted on the Exchange's Web site.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act \10\ and furthers the objectives of
Section 6(b)(5) of the Act,\11\ in that it is designed promote just and
equitable principles of trade, remove impediments to, and perfect the
mechanism of, a free and open market and a national market system, and,
in general, protect investors and the public interest. In addition, the
Exchange believes that the proposed rule change is not designed to
permit unfair discrimination between customers, issuers, brokers or
dealers.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78f(b).
    \11\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

Extension of Deadline To Submit Claims
    Extending the deadline by which claims for compensation are
submitted to the Exchange is designed to increase the likelihood that
Members will be able to submit claims in a timely manner. The Exchange
believes that such expansion of time is reasonable given that Members
often do not have all the necessary information to substantiate all
facts bearing on the accuracy and completeness of a claim within the
required current timeframe under Rule 11.12(d). Therefore, the Exchange
believes the proposed rule change is equitable and will promote
fairness in the market place by providing Members increased time to
submit claims that result from an Exchange Systems Issue.

Reimbursement for Losses Sustained at other Trading Centers
    Proposed Rule 11.12(e) would enable the Exchange to pass through to
Members any compensation that the Exchange is able to procure, via DE
Route, from a Trading Center for losses claimed by Members to have
resulted from a Trading Center Systems Issue. The proposal specifies a
standardized method for Members to submit claims for compensation from
a Trading Center, and for the Exchange to pass through to its Members
any such compensation obtained, if and to the extent the Exchange, via
DE Route, is able to obtain such compensation from the Trading Center.
Furthermore, any compensation obtained by the Exchange from a Trading
Center would be passed on to the Member who requested such
reimbursement. If the amount received by the Exchange from the Trading
Center was insufficient to satisfy all claims, it would be allocated
among the claimants proportionally based on the percentage that each
claimant's claim in relation to the sum of all claims received by the
Exchange. In addition, the proposed pro-rata allocation methodology
that the Exchange would employ would provide for equitable compensation
among all Members who submit a claim related to a Trading Center
Systems Issue and deter the risk of preferential treatment of certain
Members by the Exchange. Therefore, the Exchange believes that the
proposed rule change would protect investors and the public interest by
potentially providing Members with a remedy not currently available to
them to recover for losses incurred as a result of Trading Center
Systems Issues, which generally arise from factors unrelated to their
trading activities.

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

    The proposed rule change would not impose any burden on
competition. The proposed rule change is designed to promote fairness
in the marketplace by increasing the time within which a Member is to
submit claims for Exchange System Issues and to be compensated for
losses that result from Trading Center Systems Issues. The Exchange
believes that the proposed rule changes will not burden intermarket
competition because the benefits offered under the proposed rule
changes are not currently offered by any other exchange. The Exchange
believes that the proposed rule changes will not burden intramarket
competition because all Members would be subject to the same deadline
to submit a claim for Exchange Systems Issues and be able to submit
claims for reimbursement for certain losses incurred due to Trading
Center System Issues.

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

    No written comments were either solicited or received.

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

    Because the proposed rule change does not: (i) Significantly affect
the protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative for 30
days from the date on which it was filed, or such shorter time as the
Commission may designate if consistent with the protection of investors
and the public interest, the proposed rule change has become effective
pursuant to Section 19(b)(3)(A) of the Act \12\ and Rule 19b-
4(f)(6)(iii) thereunder.\13\
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78s(b)(3)(A).
    \13\ 17 CFR 240.19b-4(f)(6)(iii). As required under Rule 19b-
4(f)(6)(iii), the Exchange provided the Commission with written
notice of its intent to file the proposed rule change, along with a
brief description and the text of the proposed rule change, at least
five business days prior to the date of filing of the proposed rule
change, or such shorter time as designated by the Commission.
---------------------------------------------------------------------------

    A proposed rule change filed under Rule 19b-4(f)(6) of the Act \14\
normally does not become operative prior to 30 days after the date of
the filing. However, pursuant to Rule 19b-4(f)(6)(iii) of the Act,\15\
the Commission may designate a shorter time if such action is
consistent with the protection of investors and the public interest.
The Exchange has requested that the Commission waive the 30-day
operative delay so that the proposal may become operative immediately
upon filing. The Commission believes that waiving the 30-day operative
delay is consistent with the protection of investors and the public
interest. Such waiver would immediately extend the time period by which
Exchange members are able to submit claims seeking compensation for
Exchange systems issues under EDGA Rule 11.12(d) and would immediately
establish a means for members to potentially receive compensation for
losses caused by a systems issue occurring at another Trading Center on
orders routed to such Trading Center by DE Route. For these reasons,
the Commission hereby waives the 30-day operative delay and designates
the proposed rule change to be operative upon filing with the
Commission.\16\
---------------------------------------------------------------------------

    \14\ 17 CFR 240.19b-4(f)(6).
    \15\ 17 CFR 240.19b-4(f)(6)(iii).
    \16\ For purposes only of waiving the 30-day operative delay,
the Commission has also considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule change should be approved or
disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-EDGA-2013-36 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-EDGA-2013-36. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,

Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available
for inspection and copying at the principal offices of the Exchange.
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-EDGA-2013-36,
and should be submitted on or before January 8, 2014.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\17\
---------------------------------------------------------------------------

    \17\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-30045 Filed 12-17-13; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: March 30, 2010 (Volume 75, Number 60)]
[Rules and Regulations]
[Page 15613-15620]
[DOCID:fr30mr10-10]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 107

[Docket No. PHMSA-2009-0201 (HM-208H)]
RIN 2137-AE47

Hazardous Materials Transportation; Registration and Fee
Assessment Program

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

ACTION: Final rule.

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SUMMARY: PHMSA is amending the statutorily mandated registration and
fee assessment program for persons who transport, or offer for
transportation, certain categories and quantities of hazardous
materials. For those registrants not qualifying as a small business or
not-for-profit organization, PHMSA is increasing the annual fee from
$975 (plus a $25 administrative fee) to $2,575 (plus a $25
administrative fee) for registration year 2010-2011 and following
years. The increase is necessary to fund the national Hazardous
Materials Emergency Preparedness (HMEP) grants program at approximately
$28,300,000 in accordance with the Administration's Fiscal Year 2010
budget and proposed Fiscal Year 2011 budget.

DATES: Effective date of this final rule is April 29, 2010.

FOR FURTHER INFORMATION CONTACT: Mr. David Donaldson, Office of
Hazardous Materials Planning and Analysis, PHMSA,<PHONE_NUMBER>, and
Ms. Deborah Boothe or Mr. Steven Andrews, Office of Hazardous Materials
Standards, PHMSA,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Background

    Since 1992, PHMSA has conducted a national registration program
under the mandate in 49 U.S.C. 5108 for persons who offer for
transportation or transport certain hazardous materials in intrastate,
interstate, or foreign commerce. The purposes of the registration
program are to gather information about the transportation of hazardous
materials, and to fund the Hazardous Materials Emergency Preparedness
(HMEP) grants program and additional related activities. See 49 U.S.C.
5108(b), 5116, 5128(b). PHMSA may set the annual registration fee
between a minimum of $250 and maximum of $3,000. See 49 U.S.C.
5108(a)(2), 5108(g)(2)(A).
    Since 2006, the annual registration fee has been set at $250 (plus
a $25 processing fee) for small businesses and not-for-profit
organizations and $975 (plus a $25 processing fee) for all other
registrants. See 49 CFR 107.612(d). Because PHMSA had accumulated a
surplus following a prior adjustment in 2000 (See 65 FR 7297, 7309
[Feb. 14, 2000]), notwithstanding a temporary reduction between 2003
and 2006, since Fiscal Year 2008, PHMSA has been able to fully fund the
obligation limit of $28,318,000 in the Consolidated Appropriations Act
of 2008 (Pub. L. 110-116 [121 Stat. 1295], November 13, 2007), and the
Omnibus Appropriations Act, 2009 (Pub. L. 111-8 [123 Stat. 945], March
11, 2009). However, that surplus has now been reduced to $1,500,000,
and it is necessary to adjust registration fees in order to collect
additional monies in the 2010-2011 and following registration years and
fully fund the current authorization and expected budget requests of
$28.3 million for Fiscal Years beginning in 2010. This can be done by
leaving the annual registration fee at $250 (plus a $25 processing fee)
for those persons who are a small business or not-for-profit
organization and increasing to $2,575 (plus a $25 processing fee) the
annual fee paid by all other persons required to register.

II. Notice of Proposed Rulemaking

    On February 2, 2010, PHMSA published a notice of proposed
rulemaking (NPRM; 75 FR 5258) to ensure full funding of the HMEP grants
program, by proposing an increase in registration fees beginning with
the 2010-2011 registration year to fund the program at the $28.3
million level. As explained in the NPRM, since 2006, the annual
registration fee has been set at $250 (plus a $25 processing fee) for
small businesses and not-for-profit organizations and $975 (plus a $25
processing fee) for all other registrants. See 49 CFR 107.612(d).
Because PHMSA had accumulated a surplus following a prior adjustment in
2000 (See 65 FR 7297, 7309 [Feb. 14, 2000]), notwithstanding a
temporary reduction between 2003 and 2006, since Fiscal Year 2008,
PHMSA has been able to fully fund the obligation limit of $28,318,000
in the Consolidated Appropriations Act of 2008 (Pub. L. 110-116 [121
Stat. 1295], November 13, 2007), and the Omnibus Appropriations Act,
2009 (Pub. L. 111-8 [123 Stat. 945], March 11, 2009). However, that
surplus has now been reduced to $1,500,000, and it is necessary to
adjust registration fees in order to collect additional monies in the
2010-2011 and following registration years and fully fund the current
authorization in Fiscal Year 2010 and expected budget requests of $28.3
million for future fiscal years. Accordingly, PHMSA proposed to
increase the registration fees for persons other than small businesses
from $975 (plus $25 processing fee) to $2,975 (plus $25 processing fee)
for registration year 2010-2011 and following, in order to maintain the
statutorily mandated goal of funding the HMEP grants program activities
at approximately $28,300,000.

III. HMEP Grants Program

A. Purpose and Achievements of the HMEP Grants Program

    The HMEP grants program, as mandated by 49 U.S.C. 5116, provides
Federal financial and technical assistance to States and Indian Tribes
to ``develop, improve, and carry out emergency plans'' within the
National Response System and the Emergency

Planning and Community Right-To-Know Act of 1986 (Title III), 42 U.S.C.
11001 et seq. The grants are used to: (1) Develop, improve, and
implement emergency plans; (2) train public sector hazardous materials
emergency response employees to respond to accidents and incidents
involving hazardous materials; (3) determine flow patterns of hazardous
materials within a State and between States; and (4) determine the need
within a State for regional hazardous materials emergency response
teams.
    The HMEP grants program encourages the growth of the hazardous
materials planning and training programs of State, local, and Tribal
governments by limiting the Federal funding to 80 percent of the cost a
State or Indian Tribe incurs to carry out the activity for which the
grant is made. See 49 U.S.C. 5116(e). HMEP grants supplement the amount
already being provided by the State or Indian Tribe. By accepting an
HMEP grant, the State or Tribe makes a commitment to maintain its
previous level of support. See 49 U.S.C. 5116(a)(2)(A) and
5116(b)(2)(A).
    Since 1993, PHMSA has awarded all States and territories and 45
Native American Tribes planning and training grants totaling $203
million. These grants helped to:
     Train 2,420,000 hazardous materials responders;
     Conduct 9,282 commodity flow studies;
     Write or update 55,826 emergency plans;
     Conduct 13,372 emergency response exercises; and
     Assist 25,059 local emergency planning committees (LEPCs)
or approximately 1670 per year.
    Since the beginning of the program, HMEP program funds have also
supported the following related activities in the total amounts
indicated:
     $3.4 million for the development and periodic updating of
a national curriculum used to train public sector emergency response
and preparedness teams. The curriculum guidelines, developed by a
committee of Federal, State, and local experts, include criteria for
establishing training programs for emergency responders at five
progressively higher skill levels: (1) First responder awareness, (2)
first responder operations, (3) hazardous materials technician, (4)
hazardous materials specialist, and (5) on-scene commander.
     $2.6 million to monitor public sector emergency response
planning and training for hazardous materials incidents, and to provide
technical assistance to State or Indian Tribe emergency response
training and planning for hazardous materials incidents.
     $7.6 million for periodic updating and distribution of the
North American Emergency Response Guidebook. This guidebook provides
immediate information on initial response to hazardous materials
incidents, and is distributed free of charge to the response community.
     $3.5 million for the International Association of Fire
Fighters (IAFF) to train instructors to conduct hazardous materials
response training programs.

B. Funding of the HMEP Grants Program

    An estimated 800,000 shipments of hazardous materials make their
way through the national transportation system each day. It is
impossible to predict when and where a hazardous materials incident may
occur or what the nature of the incident may be. This potential threat
requires State and local agencies to develop emergency plans and train
emergency responders on the broadest possible scale.
    The HMEP training grants are essential for providing adequate
training of persons throughout the nation who are responsible for
responding to emergencies involving the release of hazardous materials.
There are over 2 million emergency responders requiring initial
training or periodic recertification training, including 250,000 paid
firefighters, 850,000 volunteer firefighters, 725,000 law enforcement
officers, and 500,000 emergency medical services (EMS) providers. Due
to the high turnover rates of emergency response personnel, there is a
continuing need to train a considerable number of recently recruited
responders at the most basic level.
    In addition, training at more advanced levels is essential to
ensure that emergency response personnel are capable of effectively and
safely responding to serious releases of hazardous materials. The
availability of funding for the HMEP grants program will encourage
State, Tribal, and local agencies to provide more advanced training.
    The funding for HMEP grants will enable PHMSA to help meet
previously unmet needs of State, local and Tribal governments, and
public and private trainers by providing for the following activities
authorized by law:
     $21,800,000 for training and planning grants;
     A new $4,000,000 grant program for non-profit hazmat
employee organizations to train hazmat instructors who will train
hazmat employees;
     $1,000,000 for grants to support certain national
organizations to train instructors to conduct hazardous materials
response training programs, an increase of $750,000;
     $625,000 for revising, publishing, and distributing the
North American Emergency Response Guidebook;
     $188,000 for continuing development of a national training
curriculum;
     $150,000 for monitoring and technical assistance; and
     $555,000 for administrative support.

IV. Discussion of Comments

PHMSA received 42 sets of comments on the NPRM, from the following
individuals and organizations:

Steven Kovacsi (Mr. Kovacsi)
John Q. Counts (Mr. Counts)
Dale Anderson (Mr. Anderson)
Angela Brenwalt and Jenny Carver (Brenwalt and Carver)
The Council on the Safe Transportation of Dangerous Articles, Inc.
(COSTHA)
Canadian Trucking Alliance
American Trucking Associations (ATA)
Association of HAZMAT Shippers, Inc. (AHS)
The Institute of Makers of Explosives (IME)
Petroleum Marketers Association of America (PMAA)
New England Fuel Institute (NEFI)
Owner-Operator Independent Drivers Association, Inc. (OOIDA)
Dangerous Goods Advisory Council (DGAC)
Horizon Lines, LLC (Horizon)
Fann Contracting, Inc. (Mr. Fann)
International Vessel Operators Hazardous Materials Association, Inc.
(VOHMA)
Alexander & Baldwin, Inc. (A&B)
Cleveland County Local Emergency Planning Committee (CCLEPC)
North Central Florida LEPC
South Florida LEPC
Texas Department of Safety/Emergency Management
Missouri Emergency Response Commission
Oklahoma Hazardous Materials Emergency Response Commission (OHMERC)
(two comments)
National Association of SARA Title III Program Officials (NASTPO)
Tulsa County (OK) Local Emergency Planning Committee (LEPC)
Livingston County (MO) LEPC
Garfield County (WA) Fire District 1
Oklahoma County (OK) LEPC
Grand River Dam Authority LEPC
Benton County (MO) Emergency Management
Douglas County (CO) LEPC
Gila County (AZ) LEPC
Ponca City, OK Emergency Management/LEPC
Jefferson County (IN) LEPC
Jefferson County (CO) LEPC
Garfield County (OK) LEPC
Blaine County (OK) LEPC
Connecticut State Emergency Response Commission (SERC)
Dade County (MO) LEPC

Arizona Emergency Response Commission
Environmental Protection Agency
Utility Solid Waste Activities Group (USWAG)

    Commenters from the emergency response community support the
proposed fee increase. They state that the HMEP grants are their only
source of funding for planning for hazardous materials transportation
incidents and training local emergency responders. They note that the
high turnover rate for first responders is a significant issue and
indicate that increased funding will enable them to ensure that all
first responders are trained.
    Comments from the regulated community are divided. Some oppose the
proposal to increase fees for large businesses and suggest that, in the
interest of fairness, the fee increase should be risk based so that
higher volume shippers of carriers of hazardous materials bear a higher
percentage of proposed fees. Other commenters recommend, again in the
interest of fairness, that PHMSA consider an increase in the
registration fees paid by small businesses and not-for profit
organizations. Commenters also express concern about how funds are
allocated and spent, grants to non-profit hazmat employee
organizations, and alleged ineffective enforcement of the current
registration requirements.
    The comments are discussed in more detail below.

A. Support for HMEP Grants and the Registration Fee Increase

    A total of 24 State and local government emergency planning and
response entities submitted comments on the NPRM. These commenters from
the emergency response community support the proposed fee increase. As
indicated above, they state that the HMEP grants are their only source
of funding for planning for hazardous materials transportation
incidents and training local emergency responders. For example, Texas
DPS/Emergency Management notes that almost 80% of fire departments in
Texas have no paid responders and that volunteers depend on HMEP
funding to receive appropriate and up-to-date training. According to
Texas DPS/Emergency Management, ``HMEP is the only source of hazardous
materials training funds for the majority of our fire departments and
under the current economical situation is becoming a major source of
funding for all of our departments.'' Similarly, OHMERC states that,
throughout most of Oklahoma, the first responders on scene at a
transportation incident are local volunteers. ``There is no industrial
tax base in the surrounding area to support the planning and exercising
activities of these dedicated individuals. There is no industry-based
training available * * * There are regionally based Hazmat response
teams that can provide assistance to local volunteers but their
response times may be in excess of 2 hours. * * *'' CCLEPC states that
it is ``heavily dependent upon the money it receives each year through
the * * * HMEP grant. Without this source of funding we would be
greatly hampered in our ability to carry out our mission. * * *'' The
Arizona Emergency Response Commission states that ``[w]ithin Arizona as
with other states, serious financial shortfalls have occurred which
greatly affect how much funding will be passed through to the local
communities.''
    These commenters also note that turnover among volunteer
firefighters is high, so, in the words of Texas DPS/Emergency
Management, ``a consistent continual training program is necessary.
Volunteer, rural responders need to have the knowledge to protect
themselves, the public, and the environment. * * *.''
    PHMSA believes it is critical to fund local emergency planning and
response efforts to the maximum level allowed under the law. Government
and industry have a shared responsibility to minimize the consequences
of hazardous materials transportation accidents. The possible
consequences of a serious incident require that all communities develop
response plans and train emergency services, fire, and police personnel
to assure an effective response. The importance of planning and
training cannot be overemphasized. Small towns and rural communities
are served by largely volunteer fire departments and, in many
instances, these communities' resources already are overextended in
their efforts to meet routine emergency response needs.

B. Basis of Proposed Registration Fee Increase

    OIDA, NEFI, and PMAA support the two-tiered registration structure.
PMAA states that it is ``entirely appropriate and inherently fair that
small business registrants pay a significantly lower fee than large
HAZMAT offerors * * * Reduced risk should be rewarded with a lower
fee.'' OIDA agrees and adds that small-business motor carriers already
pay a ``significantly higher per unit cost than their large
competitors.'' OIDA suggests that while a one-truck motor carrier faces
a total cost of $275 per unit, a larger carrier with 15,000 trucks
would pay the equivalent of 20 cents for each truck in its fleet under
the proposed higher fee structure.
    VOHMA recommends that fee assessments should be ``more equitably
determined'' based on volumes of hazardous materials transported.
``[T]he higher volume carrier[s] who benefit from the revenue of
carrying such commodities should bear a higher percentage of the * * *
fees.'' A&B and AHS assert that the current fee structure is unfair
because it requires registrants who only occasionally offer for
transportation or transport hazardous materials to pay the same fee as
registrants who offer or transport hazardous materials as their primary
business. VOHMA and Horizon suggest that vessel carriers calling at
U.S. ports have ``little need'' to employ the additional resources of
Emergency Response Teams funded through the registration fee program as
they already have a ``vast listing of reserved parties on call'' and
further, ships are at sea most of the time. ATA, AHS, Mr. Fann, and IME
suggest that before large businesses are asked to absorb a 200 percent
fee increase, PHMSA should consider increasing fees paid by small
businesses and not-for-profit organizations. Alternatively, AHS and IME
suggest that PHMSA consider a fee structure with multiple fee tiers.
Further, IME does not agree that large businesses pose a greater risk,
and, therefore, should shoulder a greater share of funding for the HMEP
grant program. IME suggests that PHMSA institute a waiver process under
which businesses that demonstrate that their shipment patterns are
similar to those of large not-for-profit entities could qualify to pay
at the small business rate. IME also suggests that PHMSA set a cap on
total fees paid by subsidiaries of a parent company, stating, ``[s]uch
qualified relief would accommodate gross inequities resulting from the
`ability-to-pay' approach to financing the HMEP and would interject a
dimension to the fee calculation based on risk.'' ATA suggests that
PHMSA consider eliminating certain exceptions to the current
registration requirements, including the exception for farmers that
transport placarded materials in direct support of the farmer's farming
operations. NACD and DGAC recommend a ``performance-based fee system''
under which entities with poor incident histories and safety records
would pay higher fees. USWAG recommends that the fee increase be
delayed for at least one more registration year.
    Commenters are correct that under Federal hazmat law, PHMSA has the
discretion to increase registration fees for both small and large
businesses. As

explained in the NPRM, PHMSA considered several alternatives for
increasing the funds available for the HMEP grants program. One option
was to increase the fee for all businesses offering for transportation
or transporting the covered hazardous materials. Another option was to
maintain the fee for small businesses and not-for-profit organizations
while adjusting the fee for larger businesses. PHMSA continues to
believe that this second option is the best approach for meeting our
overall objectives for both the registration and HMEP programs.
Although there are exceptions, small businesses and not-for-profit
organizations generally offer for transportation or transport fewer and
smaller hazardous materials shipments as compared to larger companies.
Raising the registration fee only for other-than-small businesses
rather than for all businesses correlates the fee structure to the
level of risk associated with shipments offered for transportation and
transported by larger companies. Moreover, increasing the registration
fees only for other-than-small businesses will affect significantly
fewer entities and will affect entities that can more easily absorb the
increase. PHMSA has received approximately 41,000 registrations for the
2008-2009 registration year, and expects approximately the same number
for 2009-2010. Small businesses or not-for-profit organizations make up
83%, or 35,025 of the registrants, while large businesses make up 17%,
or 6,975 of the registrants.
    Since the registration program was first established, PHMSA has
considered, and rejected, methods for apportioning registration fees
among registrants according to various approximations of the risk
imposed. For example, in Docket No. HM-208B, there were overwhelming
objections to basing registration fees on risk factors such as the
hazard characteristics of specific classes of materials and the
consequences of a release during transportation; the quantity of
materials shipped or transported, including the type and size of
containers (including vehicles); and the number of shipments offered or
transported. The agency concluded that trying to distinguish among
distinct levels of risk would require the imposition of a complicated
system that would necessarily involve significant recordkeeping burdens
on the regulated public (60 FR 5822). PHMSA remains convinced that even
the simplest of the suggested alternative fee structures would impose
significant cost burdens. As a further example, the creation of a third
level based on a ``waiver'' for registrants that do not meet the
criteria for a small business but engage in limited hazardous materials
activities could impose a greater expense on the registrant to maintain
the necessary records to prove its level of activity than the cost of
the registration fee. PHMSA believes that the current two-tiered fee
schedule based on SBA criteria is the most equitable, simple, and
enforceable method for determining and collecting registration fees.
The two-tiered fee schedule distributes registration fees according to
a well-established measurement of business size and ensures the
collection of sufficient funds to support the HMEP grants program at an
enhanced level.

C. Oversight and Accountability

    ATA, AHS, PMAA, and IME suggest that PHMSA should provide greater
oversight and accountability on how the HMEP grant funds are allocated
and used. IME questions PHMSA's enforcement of the registration program
and suggests that the two-tier system complicates rather than
simplifies enforcement efforts. IME also questions PHMSA's data on the
number of emergency plans and LEPCs supported by the HMEP grant funds
and suggests that training grants are in greater need of funding. IME
states, ``given the plethora of other viable alternatives to address
the needs of the response community, the HMEP is at best
inconsequential, and in retrospect, a program that has outlived its
relevance and usefulness as a stand alone resource.''
    In 2008, PHMSA received approval from the Office of Management and
Budget (OMB) to collect more detailed information from HMEP grantees to
enable the agency more accurately to evaluate the effectiveness of the
grant program in meeting emergency response planning and training needs
(73 FR 39780). PHMSA is now collecting that detailed information. In
addition, the agency is hiring additional staff to provide an enhanced
HMEP oversight capability. The HMEP grant program was established over
15 years ago and has continued with few changes since its initial
implementation. HMEP grantees have used program funds to train first
responders; conduct commodity flow studies; write or update emergency
plans; conduct emergency response exercises; and assist local emergency
planning committees. Few other resources are available to accomplish
these tasks. PHMSA recognizes that, because the HMEP grant program is
funded by registration fees paid by hazardous materials shippers and
carriers, it is incumbent on the agency administering the grant program
as well as the grantees themselves to ascertain that the program is
accountable to those who fund it and is as effective as possible in
meeting its emergency response planning and training goals.
    The information provided by the grantees will provide data to
evaluate emergency response planning and training programs conducted by
States and Indian Tribes. The development of accurate output
information will also summarize the achievements of the HMEP grant
program. The information PHMSA seeks from grantees will enhance
emergency response preparedness and response by allowing the agency and
its State and Tribal partners to target gaps in current planning and
training efforts and focus on strategies that have been proven to be
effective. PHMSA notes in this regard the comments from NASTPO and
OHMERC that ``one size does not fit all when it comes to community
preparedness.'' OHMERC states that it is working with grantees to
establish priorities and outcome metrics so that program effectiveness
can be demonstrated. NASTPO as well states that it is working to
address the effectiveness of the HMEP program, including its
accountability.
    PHMSA believes that funding for both planning and training is
critical to the local emergency responders' capability of dealing with
hazardous materials transportation incidents. The emergency response
community has stressed that rural communities depend on volunteers and
their ability to plan, train and exercise for a wide range of potential
events. To ensure effective emergency response, communities must
continually revise plans, repeat training, and conduct exercises. As
NASTPO notes, community preparedness and emergency planning is ``a
process, not an end point.'' An effective planning organization will
routinely evaluate and update its emergency response plans to account
for changing circumstances and conditions.

D. Grants to Non-Profit Hazmat Employee Organizations

    DGAC and IME oppose the use of registration fees to fund the
training grants authorized under Sec.  5107(e) of Federal hazmat law.
IME asserts that this $4 million training program is a double taxation
for hazmat employee training since employees trained by third parties
would still need to meet the specific and specialized training each
company is responsible for

providing under the Hazardous Materials Regulations, and that, ``using
industry fees for this purpose cannot be justified.'' DGAC contends
that the program does not have industry support and suggests that PHMSA
has not explained how, and for what purpose, it plans to use the
training grant funds.
    According to the law, training grant funds awarded to an
organization may be used to train hazmat instructors and, to the extent
determined to be appropriate, for such instructors to train hazmat
employees. Grant funds are not authorized to fund an organization's
existing hazmat training program. The program is open to non-profit
hazardous materials employee organizations demonstrating: (1) Expertise
in conducting a training program for hazmat employees, and (2) ability
to reach a target population of hazmat employees. For the purposes of
the grants program, an employee organization is a labor union,
association, group, or similar organization the members of which are
hazardous materials employees and the stated purpose of which is to
represent hazmat employees. Hazmat employees include self-employed
persons, including owner-operators of motor vehicles; vessel or
aircraft crewmembers and employees; railroad signalmen; and
maintenance-of-way employees. Due to budget and other limitations, many
hazmat employees cannot leave their employment locations for extended
periods of time to attend training courses. Instructors trained under
this grant program can offer training to a large number of hazmat
employees at locations within close proximity to the hazmat employees'
places of employment, thereby significantly minimizing employee travel
cost and training time. PHMSA believes the statutorily mandated
training grants will benefit the transportation industry by providing
this much needed hazmat training.

E. Rising Transportation Costs

    COSTHA, NACD, Mr. Fann, Horizon, and VOHMA ask PHMSA to take into
consideration the current state of the economy and the high costs of
transportation in setting registration fees. These commenters suggest
that increasing registration fees will impose additional hardships on
businesses already struggling with rising costs. COSTHA notes that the
economy is ``still in flux after suffering one of the largest
recessions in 40 years'' and requests a reconsideration of the fee
increase in light of current economic conditions. VOHMA requests that
PHMSA ``consider the fact that vessel operators use large quantities of
petroleum fuels and are finding it increasingly difficult to remain
competitive and efficient in this costly energy environment.'' Horizon
notes that it is ``faced with rising and unstable fuel expenses coupled
with weather related delays, damages, and a weak economy'' which all
affect its ability to operate profitably. Mr. Kovacsi states that in
the current economy, ``this whopping increase is totally inappropriate
when so many drivers are already out of work due to poor revenues by
their employers.'' Mr. Fann states that ``[b]usinesses are suffering
through these hard times also by having to make cut backs, watch
expenses and find less expensive alternatives to their way of doing
business.'' Several commenters note as well that adoption of the
proposals in the final rule will require many businesses to incur
unbudgeted expenses during the current calendar year.
    PHMSA recognizes the concerns of industry relating to the
increasing costs of energy and transportation. However, these costs
affect many industries, as well as consumers and emergency responders.
PHMSA believes that increasing energy and transportation costs
reinforce the need to fully fund the HMEP grants program. State
emergency planners and responders continue to indicate that these HMEP
grants are the only source of funds they receive to fund the continuing
need for emergency response planning and training.

F. Surplus in HMEP Grants Fund

    Commenters, including COSTHA, NPGA, Mr. Anderson, Mr. Counts, and
IME, express concern that the increase in registration fees will result
in a surplus in the HMEP grants account. For example, IME contends that
``PHMSA is again embarking on a path to generate millions of dollars in
excess of the amount authorized.'' NPGA suggests that ``it is
conceivable that a surplus could exist in a very short period of
time.''
    As already discussed, the past surplus enabled PHMSA to temporarily
reduce registration fees for all persons during the 2003-2006 period.
Further, as discussed in the NPRM, in part because of accumulated
surpluses, PHMSA was able to fully fund the HMEP program at its
authorized limit of $28,318,000 for FY 2009. However, that surplus has
now been reduced to $1.5 million. PHMSA estimates that without the
proposed increase in fees, the agency will be approximately $8 million
short of the authorized grant obligations to be made in 2010. Further,
PHMSA has received approximately 2,000 (6%) fewer registrations for the
2008-2009 registration year than for 2007-2008. The number of
registrations for the 2009-2010 registration year has only slightly
increased over the number for 2008-2009 at this time last year. This
may be due to the current economic conditions, even though PHMSA has
been aggressively addressing entities who have failed to register.

G. Enforcement of Registration Fee Requirements

    COSTHA, IME, AHS, and VOHMA express concern about the industry's
compliance with and PHMSA's enforcement of the registration fee
requirements. IME states that it has ``long questioned PHMSA's ability
to provide credible enforcement of the two-tiered registration
requirement'' and suggests that, extrapolating from a five percent non-
compliance rate and using PHMSA's registration statistics, ``over $1.5
million in revenue will annually be forgone.'' Similarly, VOHMA
questions whether all entities that are subject to the registration and
fee assessment requirements are actually in compliance and recommends
that PHMSA ``place more emphasis on enforcement of the registration
requirements to ensure that all persons subject to these requirements
have filed the applicable forms and paid the fees. * * *''
    PHMSA takes its responsibility to ensure compliance with the
registration requirements very seriously. Integrated as part of every
compliance inspection and incident investigation, PHMSA aggressively
enforces the requirements for Hazardous Materials Registration. The
agency also instituted a nationwide surveillance and compliance
operation that identifies, enforces, and collects the unpaid fees of
persons (in active status) who have failed to renew or file for
registration. In 2009, for example, PHMSA cited 120 companies for
registration violations and levied $60,810 in penalties. An additional
23 companies were issued warning letters or are awaiting determination
of an appropriate penalty.

H. Multi-Year Registrations

    PHMSA allows a person to register for up to three years in one
registration statement (49 CFR 107.612(c)). As discussed in the NPRM,
PHMSA has received approximately 2,100 advance registrations for the
2010-2011 registration year from other-than-small businesses that have
paid the fee previously established for those years. Approximately
1,250 also included advance registrations for the 2011-2012
registration year. PHMSA applies fees according to the fee structure
ultimately established by regulation for the

registration year rather than according to the fee set at the time of
payment. Thus, when PHMSA adopts an increase in registration fees,
additional payments are required for registrations paid in advance at
the lower levels in effect at the time of payment.
    NPGA recommends that PHMSA clarify that any business that has paid
a multi-year registration fee prior to the effective date of this final
rule should be deemed as having registered with the agency and not be
subject to any form of violation related to non-registration as a
result of the difference in the fee structure between the time of the
original registration and this final rule. NACD also recommends that
any difference between the new fee and prepaid fees should be assessed
in the first subsequent registration year for which the fee has yet to
be paid.
    PHMSA cannot agree to permit multi-year registrants to postpone
payment of the increased registration fee until the first subsequent
registration year for which the fee has yet to be paid. In order to
ensure full funding of the HMEP grants, PHMSA must account for
registration fees in the year they are due. PHMSA does not expend
monies collected through multi-year registrations until the year for
which they were paid. Further, when PHMSA lowered the fees for all
registrants in 2003, PHMSA provided more than 7,100 refunds amounting
to over $2.3 million within the first year to registrants who had
overpaid the newly established fees. However, PHMSA agrees that
enforcement action should not be initiated against entities that
registered in good faith and paid the fee in effect at the time of
registration provided they remit the difference between the fee
originally paid and the new registration fee in a timely manner. PHMSA
will notify each registrant who will be required to pay additional fees
for the 2010-2011 and following registration years.

V. Provisions of This Final Rule

    PHMSA shares commenters' concern that the agency should only
collect an amount of registration fees necessary to fully fund the HMEP
program without the accumulation of a surplus. PHMSA also recognizes
the challenging business environment in which hazardous materials
shippers and carriers operate. After consideration of the comments
received in response to the NPRM, PHMSA re-examined its estimates for
funding the HMEP grants program based on updated information from the
Department of Treasury on the HMEP account carry-over balance, de-
obligations of unused grant and administrative funds, increased
enforcement of the registration requirements, and current registrant
data. Based on this re-examination, PHMSA has concluded that it will be
able to fund the HMEP grants program at the $28.3 million level in
Fiscal Year 2010 and for future years with a smaller increase in
registration fees than was proposed in the NPRM. For those registrants
not qualifying as a small business or not-for-profit organization, the
fee will increase to $2,575 (plus a $25 administrative fee) for the
2010-2011 registration year and following years. For registrants
qualifying as a small business or not-for-profit organization, the fee
will remain at its current level of $250 (plus a $25 administrative
fee). This fee increase will fund the HMEP grants program at
approximately $28.3 million in accordance with the Administration's
Fiscal Year 2010 budget proposal. The cost to industry of increasing
registration fees will be approximately $14 million per year. The
increased funding for the HMEP grants program will provide essential
training to persons throughout the nation who are responsible for
responding to emergencies involving the release of hazardous materials.
In addition, training at more advanced levels is essential to assure
emergency response personnel are capable of effectively and safely
responding to serious releases of hazardous materials. The increased
funding for the HMEP grants will enable us to help meet previously
unmet needs of State, local and Tribal governments by providing more
adequate funding.
    In addition, PHMSA is adopting the proposal in the NPRM to revise
Sec.  107.612 to remove information on previous years' registration
fees. This fee information is no longer needed. Information on fees in
effect for registration years 1992-1993 to 2009-2010 is available in
the registration brochure, previous editions of the CFR, and on the
registration Web site (http: //www.phmsa.dot.gov/hazmat/registration).
Note that persons subject to registration requirements must pay the
annual registration fee, including the processing fee, in effect for
the specific registration year for which the person is submitting
registration information.

VI. Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under the authority of the Federal
hazardous materials transportation law (Federal hazmat law; 49 U.S.C.
5101 et seq.). Section 5108 of the Federal hazmat law authorizes the
Secretary of Transportation to establish a registration program to
collect fees to fund HMEP grants. The HMEP grants program, as mandated
by 49 U.S.C. 5116, authorizes Federal financial and technical
assistance to States and Indian Tribes to ``develop, improve, and carry
out emergency plans'' within the National Response System and the
Emergency Planning and Community Right-To-Know Act of 1986 (Title III),
42 U.S.C. 11001 et seq.
    The Federal hazmat law makes available funding for the HMEP grants
program at approximately $28,300,000, and directs PHMSA to establish an
annual registration fee between a minimum of $250 and a maximum of
$3,000.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and, therefore, was not
subject to formal review by the Office of Management and Budget. This
final rule is considered non-significant under the Regulatory Policies
and Procedures of the Department of Transportation (44 FR 11034).
    The cost to industry of increasing registration fees will be an
additional $14 million per year. The funding for the HMEP grants
program will provide essential training of persons throughout the
nation who are responsible for responding to emergencies involving the
release of hazardous materials. In addition, training at more advanced
levels is essential to assure emergency response personnel are capable
of effectively and safely responding to serious releases of hazardous
materials. The funding for the HMEP grants will enable PHMSA to help
meet previously unmet needs of State, local and Tribal governments, and
public and private trainers by providing funding for activities such
as: (1) Planning and training grants for local emergency planning
committees; (2) a new program for non-profit hazmat employee
organizations to train hazmat instructors that will train hazmat
employees; (3) support to certain national organizations to train
instructors to conduct hazardous materials response training programs;
(4) revising, publishing, and distributing the North American Emergency
Response Guidebook; (5) continuing development of a national training
curriculum; and (6) monitoring and technical assistance.
    While the safety benefits resulting from improved emergency
response

programs are difficult to quantify, PHMSA believes these benefits
significantly outweigh the annual cost of funding the grants program.
The importance of planning and training cannot be overemphasized. To a
great extent, we are a nation of small towns and rural communities
served by largely volunteer fire departments. In many instances,
communities' response resources already are overextended in their
efforts to meet routine emergency response needs. The planning and
training programs funded by the HMEP grants program enable State and
local emergency responders to respond quickly and appropriately to
hazardous materials transportation accidents, thereby mitigating
potential loss of life and property and environmental damage. The
regulatory evaluation to the final rule issued under Docket HM-208 (57
FR 30620) showed that the benefits to the public and to the industry
from the emergency response grant program would at least equal, and
likely exceed, the annual cost of funding the grant program. Based on
estimates of annual damages and losses resulting from hazardous
materials transportation accidents, the analysis concluded that the
HMEP program would be cost-beneficial if it were only 3% effective in
reducing either the frequency or severity of the consequences of
hazardous materials transportation accidents. Achieving this level of
effectiveness is well within the success rates of training and planning
programs to reduce errors and increase the proficiency and productivity
of response personnel. A regulatory evaluation for this final rule is
available for review in the public docket.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (Federalism). There is
no preemption of State fees on transporting hazardous materials that
meet the conditions of 49 U.S.C. 5125(f). This final rule does not
impose any regulation having substantial direct effects on the States,
the relationship between the national government and the States, or the
distribution of power and responsibilities among the various levels of
government. Therefore, the consultation and funding requirements of
Executive Order 13132 do not apply.

D. Executive Order 13175

    This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments). Because this final rule
does not have adverse Tribal implications and does not impose direct
compliance costs, the funding and consultation requirements of
Executive Order 13175 do not apply.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601-611) requires each
agency to analyze regulations and assess their impact on small
businesses and other small entities to determine whether the rule is
expected to have a significant impact on a substantial number of small
entities. The provisions of this rule apply specifically to businesses
not falling within the small entities category. Therefore, PHMSA
certifies this rule would not have a significant economic impact on a
substantial number of small entities.

F. Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$141.3 million or more, in the aggregate, to any of the following:
State, local, or Native American Tribal governments, or the private
sector.

G. Paperwork Reduction Act

    Under 49 U.S.C. 5108(i), the information management requirements of
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) do not apply to
this final rule.

H. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document may be used to cross-reference this action with the
Unified Agenda.

I. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321-4347), requires Federal agencies to consider the
consequences of major Federal actions and prepare a detailed statement
on actions significantly affecting the quality of the human
environment. There are no significant environmental impacts associated
with this final rule. PHMSA is amending the requirements in the
Hazardous Materials Regulations on the registration and fee assessment
program for persons who transport or offer for transportation certain
categories and quantities of hazardous materials. The increase in
registration fees will provide additional funding for the HMEP program
to help mitigate the safety and environmental consequences of hazardous
materials transportation accidents.

J. Privacy Act

    Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comments (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://www.regulations.gov.

List of Subjects in 49 CFR Part 107

    Administrative practice and procedure, Hazardous materials
transportation, Penalties, Reporting and recordkeeping requirements.

0
In consideration of the foregoing, 49 CFR Part 107 is amended as
follows:

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

0
1. The authority citation for part 107 is revised to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; Sec. 212-213, Pub. L.
104-121, 110 Stat. 857; 49 CFR 1.45, 1.53.

0
2. In Sec.  107.612, revise paragraphs (a) and (b) to read as follows:

Sec.  107.612  Amount of fee.

    (a) For the registration year 2010-2011 and subsequent years, each
person offering for transportation or transporting in commerce a
material listed in Sec.  107.601(a) must pay an annual registration
fee, as follows:
    (1) Small business. Each person that qualifies as a small business,
under criteria specified in 13 CFR part 121 applicable to the North
American Industry Classification System (NAICS) code that describes
that person's primary commercial activity, must pay an annual
registration fee of $250 and the processing fee required by paragraph
(a)(4) of this section.
    (2) Not-for-profit organization. Each not-for-profit organization
must pay an annual registration fee of $250 and the processing fee
required by paragraph (a)(4) of this section. A not-for-profit
organization is an organization exempt from taxation under 26 U.S.C.
501(a).
    (3) Other than a small business or not-for-profit organization.
Each person that does not meet the criteria specified in

paragraph (a)(1) or (a)(2) of this section must pay an annual
registration fee of $2,575 and the processing fee required by paragraph
(a)(4) of this section.
    (4) Processing fee. The processing fee is $25 for each registration
statement filed. A single statement may be filed for one, two, or three
registration years as provided in Sec.  107.616(c).
    (b) For registration years 2009-2010 and prior years, each person
that offered for transportation or transported in commerce a material
listed in Sec.  107.601(a) during that year must pay the annual
registration fee, including the processing fee, specified under the
requirements of this subchapter in effect for the specific registration
year.
* * * * *

    Issued in Washington, DC, on March 24, under authority delegated
in 49 CFR part 1.
Cynthia L. Quarterman,
Administrator.
[FR Doc. 2010-7035 Filed 3-29-10; 8:45 am]
BILLING CODE 4910-60-P