[Federal Register Volume 79, Number 200 (Thursday, October 16, 2014)]
[Rules and Regulations]
[Pages 61990-61992]
[FR Doc No: 2014-24528]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 406

[Docket No. FAA-2014-0822; Amdt. No. 406-8]
RIN 2120-AK55

Civil Penalty Inflation Adjustment for Commercial Space
Adjudications; Second Amendment

AGENCY: Federal Aviation Administration, DOT.

ACTION: Immediately adopted final rule.

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SUMMARY: This final rule is the second mandatory inflation-based
adjustment to the maximum civil penalty authorized for violations of
the Commercial Space Launch Act of 1984, as amended. This adjustment is
done to bring the authorized penalty for violations into compliance
with the requirements of the Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended by the Debt Collection Improvement
Act of 1996.

DATES: Effective November 17, 2014.

FOR FURTHER INFORMATION CONTACT: Alex Zektser, General Attorney, Office
of the Chief Counsel, International Law, Legislation, and Regulations
Division, AGC-200, Federal Aviation Administration, 800 Independence
Avenue SW., Washington, DC 20591; telephone<PHONE_NUMBER>; email
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking and Applicable Statutes

    The statute under which the Secretary of Transportation regulates
commercial space transportation, 51 U.S.C. Subtitle V, sections 50901-
50923 (chapter 509), provides for the Department of Transportation
(DOT), and, through delegation, the Federal Aviation Administration
(FAA) to impose civil penalties on persons who violate chapter 509, a
regulation issued under chapter 509, or any term or condition of a
license or permit issued or transferred under chapter 509. 51 U.S.C.
50906(h)-(i), 50917.
    This rule implements the Federal Civil Penalties Inflation
Adjustment Act of 1990 (FCPIAA), Public Law (Pub. L.) 101-410, as
amended by the Debt Collection Improvement Act (DCIA) of 1996, Public
Law 104-134, codified at 28 U.S.C. 2461 note.
    The FCPIAA and DCIA require Federal agencies to adjust minimum and
maximum civil penalty amounts for inflation to preserve their deterrent
impact. Under these laws, each agency must make an initial inflationary
adjustment for all applicable civil monetary penalties, and further
adjust these penalties at least once every four years. The agency must
adjust the amount of the penalty using a strict statutory formula
discussed in more detail below.

Prior Rulemakings

    This rule is the FAA's second adjustment to the maximum civil
penalty found in 14 CFR part 406 which governs commercial space
transportation adjudications. The initial adjustment to the maximum
civil penalty found in 14 CFR part 406 occurred in 2010.\1\
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    \1\ Civil Penalty Inflation Adjustment for Commercial Space
Adjudications, 75 FR 30690 (June 2, 2010).
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Background

    The FCPIAA determines inflationary adjustments by increasing civil
penalties by a cost-of-living adjustment (COLA). Under the FCPIAA, the
COLA for each civil penalty is the percentage by which the U.S.
Department of Labor's Consumer Price Index for all-urban consumers
(CPI-U) for the month of June of the calendar year preceding the
adjustment exceeds the CPI-U for the month of June of the calendar year
in which the amount of such civil penalty was last set or adjusted
pursuant to the FCPIAA. The FCPIAA contains specific rules for rounding
the inflationary increase.

Method of Calculation

    Section 406.9 of 14 CFR currently imposes a maximum civil penalty
of $110,000 for violations of chapter 509, a regulation proscribed
under chapter 509, or any term or condition of a license or permit
issued or transferred under chapter 509. To determine the appropriate
adjustment that must be made pursuant to the FCPIAA, we first find the
CPI-U for June of the calendar year preceding the year of adjustment is
determined. Because the adjustment in this case is being made in 2014,
we will use the June of 2013 CPI-U, which is 233.504.\2\ Next, we
determine the CPI-U for June of the year the civil penalty was last
adjusted. Because the civil penalty was last adjusted in 2010, we would
use the CPI-U for June of 2010, which is 217.965.\3\
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    \2\ See Bureau of Labor Statistics, CPI Detailed Report: Data
for June 2013, Table 1, which may be found at http://www.bls.gov/cpi/cpid1306.pdf.
    \3\ See Bureau of Labor Statistics, CPI Detailed Report: Data
for June 2010, Table 1, which may be found at http://www.bls.gov/cpi/cpid1006.pdf.
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    Next, we use the above CPI-U numbers to calculate the COLA. To do
this, we subtract the CPI-U for June 2010 (217.965) from the CPI-U of
June 2013 (233.504). We then divide the resulting difference (15.539)
by the CPI-U for June 2010 (217.965). The resulting quotient (.07129)
is then multiplied by 100 yielding a COLA of 7.129%.
    To calculate the raw inflationary increase we multiply the current
maximum civil penalty ($110,000) by the COLA (7.129%). This provides a
raw inflation increase of $7,842. Next, we round the raw inflation
amounts by the statutory rounding formula found in Section 5(a) of the
FCPIAA. Determination of the proper rounding formula depends on the
current amount of the civil penalty at the time the calculation is
made, not the size of the raw inflationary increase. The applicable
rounding formula for the existing civil penalty of $110,000 would be
that ``[a]ny increase . . . is rounded to the nearest . . . [m]ultiple
of $10,000 in the case of penalties greater than $100,000 but less than
or equal to $200,000 . . .'' Thus, the raw increase of $7,842 becomes
$10,000 after being rounded to the nearest $10,000. Finally, the
increase of $10,000 is added to the current civil penalty $110,000,
resulting in an inflation-adjusted civil penalty of $120,000.

Good Cause for Not Having Notice and Comment

    Under the Administrative Procedure Act, 5 U.S.C. 553(b)(B), a final
rule may be issued without public notice and comment if the agency
finds good cause that notice and comment are impractical, unnecessary,
or contrary to public interest. Good cause exists in this case to
dispense with public notice and comment because adjustments to civil
penalties for inflation are required by Congress, as set forth in
Section 5 of the FCPIAA, in order to maintain the deterrent effect of
civil penalties and promote compliance with the law. The FCPIAA serves
as a Congressional mandate and the FAA may not exercise any discretion
or policy judgments. The FAA also has no discretion as to the amount of
the adjustment because the amount of the adjustment is determined using
a strict statutory formula. Since the FCPIAA does not provide the FAA
with any discretion regarding any aspect of this rulemaking, the FAA
would be unable to make any changes to this rule in response to public
comment. Accordingly, public comment is unnecessary in this case.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires
that

the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. The FAA has determined that
there are no current or new requirements for information collection
associated with this rule.

International Compatibility

    In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to these regulations.

Regulatory Evaluation, Regulatory Flexibility Determination,
International Trade Impact Assessment, and Unfunded Mandates Assessment

    Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulations justify its costs.
Second, the Regulatory Flexibility Act of 1980 (RFA), Public Law 96-
354, codified at 5 U.S.C. 601-612, as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, Public Law 104-121,
requires agencies to analyze the economic impact of regulatory changes
on small entities. Third, the Trade Agreements Act of 1999 (Trade Act),
Public Law 96-39, codified at 19 U.S.C. 2501-2581, prohibits agencies
from setting standards that create unnecessary obstacles to the foreign
commerce of the U.S. In developing U.S. standards, the Trade Act
requires agencies to consider international standards and, where
appropriate, that they be the basis of U.S. standards. Fourth, the
Unfunded Mandates Reform Act of 1995, (Pub. L. 104-4), codified at 2
U.S.C. 658, 1501-03, and 1531-34, requires agencies to prepare a
written assessment of the costs, benefits, and other effects of
proposed or final rules that include a Federal mandate likely to result
in the expenditure by State, local, or tribal governments, in the
aggregate, or by the private sector, of $100 million or more, in any
one year (adjusted for inflation).
    DOT Order 2100.5 prescribes policies and procedures for
simplification, analysis, and review of regulations. If the expected
impact is so minimal that a proposed or final rule does not warrant a
full evaluation, this order permits that a statement to that effect and
the basis for it be included in the preamble if a full regulatory
evaluation of the cost and benefits is not prepared. Such a
determination has been made for this final rule. The reasoning for this
determination is as follows. This rule adjusts for inflation the
maximum civil penalty for violations of the Commercial Space Launch Act
of 1984, to be in compliance with the Federal Civil Penalties Inflation
Adjustment Act of 1990. This inflation adjustment is an economic
transfer and not a social cost.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA)
establishes ``as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objectives of the rule and of applicable
statutes, to fit regulatory and informational requirements to the scale
of the businesses, organizations, and governmental jurisdictions
subject to regulation. To achieve this principle, agencies are required
to solicit and consider flexible regulatory proposals and to explain
the rationale for their actions to assure that such proposals are given
serious consideration.'' The RFA covers a wide-range of small entities,
including small businesses, not-for-profit organizations, and small
governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will
have a significant economic impact on a substantial number of small
entities. If the agency determines that it will, the agency must
prepare a regulatory flexibility analysis as described in the RFA.
    However, if an agency determines that a rule is not expected to
have a significant economic impact on a substantial number of small
entities, section 605(b) of the RFA provides that the head of the
agency may so certify and a regulatory flexibility analysis is not
required. The certification must include a statement providing the
factual basis for this determination, and the reasoning should be
clear.
    As already noted, this rule adjusts for inflation only, as required
by the Federal Civil Penalties Inflation Adjustment Act of 1990.
Therefore, as FAA Administrator, I certify that this rule will not have
a significant economic impact on a substantial number of small
entities.

International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal
agencies from establishing any standards or engaging in related
activities that create unnecessary obstacles to the foreign commerce of
the United States. Legitimate domestic objectives, such as safety, are
not considered unnecessary obstacles. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards.
    The FAA has assessed the potential effect of this final rule and
determined that it would impose identical inflation adjusted civil
penalties on domestic and international entities that violate 14 CFR
part 406, and thus would have a neutral trade impact. Furthermore, the
inflationary adjustment is a legitimate domestic objective preserving
the existing deterrent impact of 51 U.S.C. subtitle V, chapter 509.
Therefore, we have determined that this rule will result in a neutral
impact on international trade.

Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement
assessing the effects of any Federal mandate in a proposed or final
agency rule that may result in an expenditure of $100 million or more
(adjusted annually for inflation with the base year 1995) in any one
year by State, local, and tribal governments, in the aggregate, or by
the private sector; such a mandate is deemed to be a ``significant
regulatory action.'' The FAA currently uses an inflation-adjusted value
of $151 million in lieu of $100 million.
    Because this final rule only increases a civil penalty by $10,000,
as required by FCPIAA, it does not contain a mandate that meets this
threshold amount. Therefore, the requirements of Title II of the act do
not apply.

Executive Order 13132, Federalism

    The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. The FAA determined that
this action would not have a substantial direct effect on the States,
or the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, the FAA has determined that this final
rule does not have federalism implications.

Environmental Analysis

    FAA Order 1050.1E defines FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act (NEPA) in the absence of extraordinary circumstances. The FAA has
determined this final rule qualifies for the categorical exclusion
identified in Chapter 3, paragraph 312d,

and involves no extraordinary circumstances.

Regulations That Significantly Affect Energy Supply, Distribution, or
Use

    The FAA has analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). We have determined that it is not
a ``significant energy action'' under the executive order because it is
not a ``significant regulatory action'' under Executive Order 12866,
and it is not likely to have a significant adverse effect on the
supply, distribution, or use of energy.

Availability of Rulemaking Documents

    You can get an electronic copy of rulemaking documents using the
Internet by--
    1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/rulemaking/; or
    3. Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.
    You can also get a copy by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW., Washington, DC 20591, or by calling<PHONE_NUMBER>. Make
sure to identify the amendment number or docket number of this
rulemaking.
    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 comment (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.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires the FAA to comply with small entity requests for
information or advice about compliance with statutes and regulations
within its jurisdiction. If you are a small entity and you have a
question regarding this document, you may contact your local FAA
official, or the person listed under the FOR FURTHER INFORMATION
CONTACT heading at the beginning of the preamble. You can find out more
about SBREFA on the Internet at http://www.faa.gov/regulations_policies/rulemaking/sbre-act/">http://www.faa.gov/regulations_policies/rulemaking/sbre-act/.

List of Subjects in 14 CFR Part 406

    Administrative procedure and review, Commercial space
transportation, Enforcement, Investigations, Penalties, Rules of
adjudication.

The Amendment

    In consideration of the Foregoing, the Federal Aviation
Administration amends part 406 of Title 14, Code of Federal Regulations
as follows:

PART 406--INVESTIGATIONS, ENFORCEMENT, AND ADMINISTRATIVE REVIEW

0
1. The authority citation for part 406 continues to read as follows:

    Authority:  51 U.S.C. 50901-50923.

0
2. Amend Sec.  406.9 by revising paragraph (a) to read as follows:

Sec.  406.9  Civil penalties.

    (a) Civil penalty liability. Under 51 U.S.C. 50917(c), a person
found by the FAA to have violated a requirement of the Act, a
regulation issued under the Act, or any term or condition of a license
or permit issued or transferred under the Act, is liable to the United
States for a civil penalty of not more than $120,000 for each
violation, as adjusted for inflation. A separate violation occurs for
each day the violation continues.
* * * * *

    Issued under authority provided by 49 U.S.C. 106(f) and 51
U.S.C. 50904-50905 in Washington, DC, on September 29, 2014.
Michael P. Huerta,
Administrator.
[FR Doc. 2014-24528 Filed 10-15-14; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 81, Number 147 (Monday, August 1, 2016)]
[Notices]
[Pages 50573-50576]
[FR Doc No: 2016-18054]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-78416; File No. SR-IEX-2016-01]

Self-Regulatory Organizations; Investors Exchange LLC; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change Relating to
the Collection of Exchange Fees and Other Claims and Billing Policy

July 26, 2016.
    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 July 12, 2016, the Investors Exchange LLC (``IEX'' or the
``Exchange'') 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 Exchange. The Exchange
has designated this proposal as a ``non-controversial'' proposed rule
change pursuant to Section 19(b)(3)(A) of the Act \3\ and Rule 19b-
4(f)(6) thereunder,\4\ which renders it effective upon filing with the
Commission. 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.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
    The Exchange proposes to adopt Rule 15.120 and entitle it
``Collection of Exchange Fees and Other Claims and Billing Policy''
that (a) requires each IEX Member, and all applications for membership,
to provide a clearing account number for an account at the National
Securities Clearing Corporation (``NSCC'') for purposes of permitting
the Exchange to debit certain fees, fines, charges and/or other
monetary sanctions or other monies due and owing to the Exchange; and
(b) require [sic] IEX Members to submit billing disputes within a
certain time period.
    The text of the proposed rule change is available at the Exchange's
Web site at www.iextrading.com, at the principal office of the
Exchange, and at the Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
    In its filing with the Commission, the 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 statement [sic] 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 the
Statutory Basis for, the Proposed Rule Change
1. Purpose
    The purpose of the proposed rule change is to adopt Rule 15.120 to
(a) require each IEX Member, and all applications for membership, to
provide a clearing account number for an account at the National
Securities Clearing Corporation (``NSCC'') for purposes of permitting
the Exchange to debit certain fees, fines, charges and/or other
monetary sanctions or other monies due and owing to the Exchange; and
(b) require IEX Members to submit billing disputes within a certain
time period.
Direct Debit Process
    As proposed, paragraph (a) of Rule 15.120 requires IEX Members, and
all applicants for membership, to provide a

clearing account number for an account at NSCC for purposes of
permitting the Exchange to debit any undisputed or final fees, fines,
charges and/or other monetary sanctions or other monies due and owing
to the Exchange or other charges pursuant to Rule 15.110, including the
Exchange Fee Schedule thereto; Regulatory Transaction Fees pursuant to
Rule 15.110(b); dues, assessments and other charges pursuant to Rule
2.200 to the extent the Exchange were to determine to charge such fees;
and fines, sanctions and other charges pursuant to Chapters 8 and 9 of
the IEX Rulebook \5\ which are due and owing to IEX (collectively
``Debit Amount''). The Exchange Fee Schedule specifies charges for
transactions, routing and other services provided by the Exchange and
certain fees that are collected by the Financial Industry Regulatory
Authority (``FINRA''). Only the charges which require payment to the
Exchange would be subject to direct debit. The Exchange does not
currently charge fees for certain of the services listed on the
Exchange Fee Schedule. The Exchange would entitle Rule 15.120
``Collection of Exchange Fees and Other Claims and Billing Policy.''
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    \5\ This includes, among other things, fines and sanctions which
result from disciplinary proceedings or actions taken pursuant to
Chapters 8 and 9 of the IEX Rules, as specified in Rule 8.310. In
addition, the IEX notes that it also has authority under Rules 8.350
and 9.553 to suspend, cancel or bar a Member that fails to pay final
fees, fines, charges and/or other monetary sanctions or other monies
due and owing to the Exchange or other charges pursuant to Rule
15.110, including the Exchange Fee Schedule thereto. While this
direct debit process should minimize failures to pay, those rules
nevertheless will act as a backstop to the direct debit process.
With respect to disciplinary proceedings, the Exchange would not
debit any monies until such action is final. The Exchange would not
consider an action final until all appeal periods have run and/or
all appeal timeframes are exhausted. With respect to non-
disciplinary actions, the Exchange would similarly not take action
to debit a Member account until all appeal periods have run and/or
all appeal timeframes are exhausted. Any uncontested disciplinary or
non-disciplinary actions will be debited, and the amount due will
appear on the IEX Member's invoice prior to the actual NSCC debit.
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    As proposed, the Exchange will send a monthly electronic invoice by
email to each Member, generally by the 12th day of each month for the
Debit Amount due to IEX for the prior month. IEX will also send files
to NSCC each month by the 28th day of each month to initiate the debit
of the Debit Amount due to IEX as stated on the Member's invoice for
the prior month. If the 28th day of the month is not a business day,
IEX will send the files to NSCC by the preceding business day. IEX
anticipates that NSCC will process the debits on the day it receives
the file or the following business day. Because Members will receive an
invoice approximately two weeks before the debit date, Members will
have adequate time to contact IEX staff with any questions concerning
their invoice. If an IEX Member disagrees with the invoice in whole or
in part, the Exchange would not commence the debit for the disputed
amount until the dispute is resolved. Specifically, the Exchange will
not include the disputed amount (or the entire invoice if it is not
feasible to identify the disputed amounts) in the NSCC Debit Amount if
the Member has provided written notification of the dispute to the IEX
accounting department at<EMAIL_ADDRESS>by the later of the
25th of the month (or the following business day if the 25th is not a
business day) or ten days after the date the electronic invoice was
sent to the Member, and the amount in dispute is at least $10,000 or
greater.
    Once NSCC receives the file from the Exchange, NSCC would proceed
to debit the amounts indicated from the clearing Members' account and
disburse such amounts to the Exchange. In the instance where the Member
clears through an IEX clearing member, the Exchange understands that
the estimated transaction fees owed to the Exchange are typically
debited by the IEX clearing Member on a daily basis using daily
transaction detail reports provided by the Exchange to the IEX clearing
Member in order to ensure adequate funds have been escrowed.
    The Exchange believes that the proposed debiting process for IEX
members would create an efficient method of collecting undisputed or
final fees, fines, charges and/or other monetary sanctions or monies
due and owing to the Exchange. Collection matters could divert staff
resources away from the Exchange's regulatory and business purposes.
Moreover, the Exchange believes that it is reasonable to provide for a
$10,000 limitation on pre-debit billing disputes since it would be
inefficient to delay a direct debit for a de minimis amount. Members
will still be able to dispute billing amounts that are less than
$10,000 pursuant to paragraph (b) of Rule 15.120, as described below.
The Exchange notes that a comparable debiting process is used by the
NASDAQ Stock Market, NASDAQ OMX BX and NASDAQ OMX Phlx.\6\
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    \6\ See, NASDAQ Stock Market Rule 7007, NASDAQ OMX BX Rule 7011
and NASDAQ OMX Phlx Rule 909.
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Billing Dispute Process
    In addition to, and separate from, the pre-debit dispute process
described above, the Exchange also proposes to adopt a billing policy,
pursuant to paragraph (b) of Rule 15.120 to require all pricing
disputes, with respect to fees payable to the Exchange,\7\ to be
submitted to the Exchange in writing \8\ and accompanied by supporting
documentation within sixty days of receipt of an invoice. The Exchange
believes that this policy will conserve Exchange resources, which are
expended when untimely billing disputes require staff to research
applicable fees and order information beyond two months after the
invoice was issued. The sixty-day limitation would be applicable to all
fees specified in paragraph (a) of Rule 15.120.
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    \7\ Fees that are collected by FINRA would not be subject to the
billing policy, and any disputes would need to be raised by the
Member directly with FINRA.
    \8\ The Exchange invoice will specify that billing disputes must
be submitted to<EMAIL_ADDRESS>---------------------------------------------------------------------------

    The Exchange expects that the proposed policy will provide a
potential cost savings to the Exchange in that it would alleviate
administrative burdens related to belated billing disputes, which could
divert staff resources away from the Exchange's regulatory and business
purposes. A similar policy is in place today at the NASDAQ Stock
Market.\9\
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    \9\ See, NASDAQ Stock Market Rule 7007.
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2. Statutory Basis
    IEX believes that the proposed rule change is consistent with
Section 6(b) \10\ of the Act in general, and furthers the objectives of
Section 6(b)(5) of the Act,\11\ in particular, in that it is designed
to prevent fraudulent and manipulative acts and practices, to promote
just and equitable principles of trade, to foster cooperation and
coordination with persons engaged in facilitating transactions in
securities, to remove impediments to and perfect the mechanism of a
free and open market and a national market system and, in general, to
protect investors and the public interest. Specifically, the Exchange
believes that the direct debit process will provide IEX Members with an
efficient process to pay undisputed or final fees, fines, charges and/
or monetary sanctions or monies due and owing to the Exchange.
Similarly, the billing policy will set an objective process and will be
fair to Members. Further, both aspects of the proposal are

expected to result in lower administrative costs for the Exchange.
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    \10\ 15 U.S.C. 78f.
    \11\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange believes that its proposal to debit NSCC accounts is
reasonable because it would ease the IEX Member's administrative burden
in paying monthly invoices, avoid overdue balances and provide
efficient collection from all IEX members who owe monies to the
Exchange. Moreover, the Exchange believes that the 10-day minimum time
frame that will be provided to Members to dispute invoices is
reasonable and adequate to enable Members to identify potentially
erroneous charges. In addition, the Exchange believes that the $10,000
limitation on pre-debit billing disputes is reasonable because it would
be inefficient to delay a direct debit for a de minimis amount. Members
will still be able to dispute billing amounts that are less than
$10,000 pursuant to paragraph (b) of Rule 15.120.
    Further, the Exchange believes that the requirement that billing
disputes for specified fees be submitted to the Exchange within sixty
days from receipt of the invoice will set objective standards, will be
fair to Members, and that sixty days is ample time to review an invoice
and dispute any pricing related to the transactions for that time
period. It is also expected to lower the Exchange's administrative
costs. An identical provision is applicable to NASDAQ Stock Market,
NASDAQ OMX BX and NASDAQ OMX Phlx.\12\
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    \12\ See, NASDAQ Stock Market Rule 7007, NASDAQ OMX BX Rule 7011
and NASDAQ OMX Phlx Rule 909.
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B. Self-Regulatory Organization's Statement on Burden on Competition
    IEX does not believe that the proposed rule change will result in
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act. With this proposal, the
proposed debit process and billing policy would apply uniformly to all
IEX members.
    Further, this proposal is expected to provide a cost savings to the
Exchange in that it would alleviate administrative processes related to
the collection of monies owed to the Exchange by Members. Collection
matters divert staff resources away from the Exchange's regulatory and
business purposes. In addition, the debiting process would mitigate
against IEX Member accounts becoming overdue.
    The Exchange does not believe that the proposal will create an
intermarket burden on competition since the Exchange will only debit
fees (other than de minimis fees below $10,000) that are undisputed by
the Member and Members will have a reasonable opportunity to dispute
fees both before and after the direct debit process. The Exchange also
does not believe that the proposal will create an intramarket burden on
competition, since the proposed direct debit process and billing policy
will be applied equally to all Members. Moreover, other exchanges use a
comparable process which IEX believes is generally familiar to Members.
Consequently, IEX does not believe that the proposal raises any new or
novel issues that have not been previously considered by the Commission
in connection with direct debit and billing policies of other
exchanges.\13\
---------------------------------------------------------------------------

    \13\ See note 7 [sic].
---------------------------------------------------------------------------

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
    Written comments were neither solicited nor received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
    Because the 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 \14\ and Rule 19b-4(f)(6)
thereunder.\15\
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    \14\ 15 U.S.C. 78s(b)(3)(A).
    \15\ 17 CFR 240.19b-4(f)(6). 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) \16\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\17\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has asked
the Commission to waive the 30-day operative delay so that the proposal
may become operative at the time of the launch of its operation as a
national securities exchange. The Exchange stated that such waiver will
allow the Exchange to implement a consistent process for its members to
pay undisputed or final fees, fines, charges and/or monetary sanctions
or monies due and owing to the Exchange. The Commission believes that
waiving the 30-day operative delay is consistent with the protection of
investors and the public interest, as it will allow IEX to implement a
rule that provides a process similar to that used by other exchanges
for the direct debit of certain fees, fines, and charges, and also
provides a mechanism to protect IEX members if they choose to contest
an invoice. Therefore, the Commission hereby waives the operative delay
and designates the proposed rule change operative upon filing.\18\
---------------------------------------------------------------------------

    \16\ 17 CFR 240.19b-4(f)(6).
    \17\ 17 CFR 240.19b-4(f)(6)(iii).
    \18\ For purposes only of waiving the 30-day operative delay,
the Commission has also considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    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-IEX-2016-01 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-IEX-2016-01. 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
the filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change; 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-IEX-2016-01, and should be submitted on or before August
22, 2016.
---------------------------------------------------------------------------

    \19\ 17 CFR 200.30-3(a)(12) and (59).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\19\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-18054 Filed 7-29-16; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 78, Number 5 (Tuesday, January 8, 2013)]
[Notices]
[Page 1210]
[FR Doc No: 2013-00121]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Notice of Membership of Performance Review Board for Senior
Executives (PRB)

    The Federal Energy Regulatory Commission hereby provides notice of
the membership of its Performance Review Board (PRB) for the
Commission's Senior Executive Service (SES) members. The function of
this board is to make recommendations relating to the performance of
senior executives in the Commission. This action is undertaken in
accordance with Title 5, U.S.C., Section 4314(c)(4).
    The Commission's PRB will remove the following member:

Joseph H. McClelland

    Dated: January 2, 2013.
 Kimberly D. Bose,
 Secretary.
[FR Doc. 2013-00121 Filed 1-7-13; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 76, Number 147 (Monday, August 1, 2011)]
[Rules and Regulations]
[Pages 45690-45693]
[FR Doc No: 2011-19322]

=======================================================================
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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2010-1117]
RIN 1625-AA09

Drawbridge Operation Regulation; Raritan River, Arthur Kill and
Their Tributaries, Staten Island, NY and Elizabeth, NJ

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard has changed the drawbridge operation
regulations that govern the operation of the Arthur Kill (AK) Railroad
Bridge at mile 11.6, across Arthur Kill between Staten Island, New York
and Elizabeth, New Jersey. This final rule provides relief to the
bridge owner from crewing their bridge by allowing the bridge to be

operated from a remote location while continuing to meet the present
and future needs of navigation.

DATES: This rule is effective August 31, 2011.

ADDRESSES: Comments and related materials received from the public, as
well as documents mentioned in this preamble as being available in the
docket, are part of docket USCG-2010-1117 and are available online by
going to http://www.regulations.gov, inserting USCG-2010-1117 in the
``Keyword'' box, and then clicking ``Search.'' This material is also
available for inspection or copying at the Docket Management Facility
(M-30), U.S. Department of Transportation, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or e-mail Mr. Joe Arca, Project Officer, First Coast Guard
District Bridge Branch,<PHONE_NUMBER><EMAIL_ADDRESS>If you have
questions on viewing the docket, call Renee V. Wright, Program Manager,
Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On March 25, 2011, we published a notice of proposed rulemaking
(NPRM) entitled Drawbridge Operation Regulations Raritan River, Arthur
Kill and their tributaries, in the Federal Register (76 FR 16715). We
received one comment in response to the proposed rule. No public
meeting was requested, and none was held.

Basis and Purpose

    The Arthur Kill (AK) Railroad Bridge at mile 11.6, across Arthur
Kill, has a vertical clearance of 31 feet at mean high water, and 35
feet at mean low water in the closed position. The existing drawbridge
operating regulations are listed at 33 CFR 117.702.
    Beginning in 2009, Consolidated Rail Corporation (Conrail)
conducted a year of successful remote operation tests of the AK
Railroad Bridge without any objections from marine users. A draw
operator was on scene at all times to ensure compliance with drawbridge
operating regulations cited above. In September 2010, Conrail formally
requested that the drawbridge operating regulation be revised to permit
remote operation of the AK Railroad Bridge.
    Conrail, on October 20, 2010 and at the request of the Coast Guard,
presented its proposal to remotely operate the bridge to the New York
Harbor Operations Committee. Discussions between Conrail, the Coast
Guard, and the New York Harbor Operations Committee ensued with no
objections to the remote operation raised by the committee members.

Discussion of Comments and Changes

    The Coast Guard received one comment in response to the notice of
proposed rulemaking.
    A comment letter was received from the Tug and Barge Committee of
the Port of New York/New Jersey in opposition to operating the AK
Bridge from a remote location. They stated that without bridge control
and crewing on scene, the safe transport of products by the marine
industry would be at risk if the remote control malfunctioned.
    The AK Bridge is normally maintained in the full open position
except for the passage of rail traffic which occurs approximately four
times each day.
    Should the remote operation fail a repair crew will be dispatched
to the bridge within 45 minutes of the reported failure to repair the
bridge.
    Prior to publishing the notice of proposed rulemaking, the Coast
Guard had discussions with the New York Harbor Operations Committee and
Conrail. No objections to the remote operation were voiced at that
time.
    Subsequently, the remote operation was then successfully tested for
a year with a draw tender present at all times. During the one year
test period there were no failures or complaints received from
mariners.
    Based on the successful testing of the remote operation system, the
Coast Guard believes that operating the AK Bridge remotely should
safely meet the present and future needs of navigation. Should the
remote operation fail a repair crew will be dispatched to the bridge
within 45 minutes of the reported failure to repair the bridge.
    As a result, no changes have been made to this final rule as far as
the remote operation is concerned.
    In drafting this final rule we noted a typographical error that was
made in our notice of proposed rulemaking in the Basis and Background
Section. We stated that the existing regulations were listed at 33 CFR
117.72, which was in error. The existing regulations are listed at 33
CFR 117.702. We corrected that error in this final rule.

Regulatory Analyses

    We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, as
supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of that Order. The Office of
Management and Budget has not reviewed it under that Order. This
conclusion is based on the fact that the bridge will continue to
operate according to the existing regulations except that it will be
controlled from either a remote location or locally.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. 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 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. This action will not have a significant economic impact on a
substantial number of small entities for the following reason. The
bridge will continue to operate according to existing regulations
except that it will be controlled from either a remote location or
locally.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to
assist small entities in understanding the rule so that they could
better evaluate its effects on them and participate in the rulemaking
process.

Collection of Information

    This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or

impose a substantial direct cost of compliance on them. We have
analyzed this rule under that Order and have determined that it does
not have implications for federalism.

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.

Taking of Private Property

    This rule will not cause a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and would not create an
environmental risk to health or risk to safety that might
disproportionately affect children.

Indian Tribal Governments

    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.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
    This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guides the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
that this action is one of a category of actions which do not
individually or cumulatively have a significant effect on the human
environment. This rule is related to the promulgation of operating
regulations or procedures for drawbridges and therefore is
categorically excluded, under figure 2-1, paragraph (32)(e), of the
Instruction. Under figure 2-1, paragraph (32)(e), of the Instruction,
an environmental analysis checklist and a categorical exclusion
determination are not required for this rule.

List of Subjects in 33 CFR Part 117

    Bridges.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 117 as follows:

PART 117--DRAWBRIDGE OPERATION REGULATIONS

0
1. The authority citation for part 117 continues to read as follows:

    Authority:  33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland
Security Delegation No. 0170.1.

0
2. Revise Sec.  117.702 to read as follows:

Sec.  117.702  Arthur Kill.

    (a) The draw of the Arthur Kill (AK) Railroad Bridge shall be
maintained in the full open position for navigation at all times,
except during periods when it is closed for the passage of rail
traffic.
    (b) The bridge owner/operator shall maintain a dedicated telephone
hot line for vessel operators to call the bridge in advance to
coordinate anticipated bridge closures. The telephone hot line number
shall be posted on signs at the bridge clearly visible from both the up
and downstream sides of the bridge.
    (c) Tide constrained deep draft vessels shall notify the bridge
operator, daily, of their expected times of vessel transits through the
bridge, by calling the designated telephone hot line.
    (d) The bridge shall not be closed for the passage of rail traffic
during any predicted high tide period if a tide constrained deep draft
vessel has provided the bridge operator with an advance notice of their
intent to transit through the bridge. For the purposes of this
regulation, the predicted high tide period shall be considered to be
from two hours before each predicted high tide to a half-hour after
each predicted high tide taken at the Battery, New York.
    (e) The bridge operator shall issue a manual broadcast notice to
mariners of the intent to close the bridge for a period of up to 30
minutes for the passage of rail traffic, on VHF-FM channels 13 and 16
(minimum range of 15 miles) 90 minutes before and again at 75 minutes
before each bridge closure.
    (f) Beginning at 60 minutes prior to each bridge closure, automated
or manual broadcast notice to mariners must be repeated at 15 minute
intervals and again at 10 and 5 minutes prior to each bridge closure
and once again as the bridge begins to close, at which point the
appropriate sound signal will be given.
    (g) Two 15 minute bridge closures may be provided each day for the
passage of multiple rail traffic movements across the bridge. Each 15
minute bridge closure shall be separated by at least a 30 minute period
when the bridge is returned to and remains in the full open position.
Notification of the two 15 minute closures shall follow the same
procedures outlined in paragraphs (e) and (f) above.
    (h) A vessel operator may request up to a 30 minute delay for any
bridge closure in order to allow vessel traffic to

meet tide or current requirements; however, the request to delay the
bridge closure must be made within 30 minutes following the initial
broadcast for the bridge closure. Requests received after the initial
30 minute broadcast will not be granted.
    (i) In the event of a bridge operational failure, the bridge
operator shall immediately notify the Coast Guard Captain of the Port
New York. The bridge owner/operator must provide and dispatch a bridge
repair crew to be on scene at the bridge no later than 45 minutes after
the bridge fails to operate. A repair crew must remain on scene during
the operational failure until the bridge has been fully restored to
normal operations or until the bridge is raised and locked in the fully
open position.
    (j) When the bridge is not tended locally it must be operated from
a remote location. A sufficient number of closed circuit TV cameras,
approved by the Coast Guard, shall be operated and maintained at the
bridge site to enable the remotely located bridge tender to have full
view of both river traffic and the bridge.
    (k) VHF-FM channels 13 and 16 shall be maintained and monitored to
facilitate communication in both the remote and local control
locations. The bridge shall also be equipped with directional
microphones and horns to receive and deliver signals to vessels.
    (l) Whenever the remote control system equipment is disabled or
fails to operate for any reason, the bridge operator shall immediately
notify the Captain of the Port New York. The bridge shall be physically
tended and operated by local control as soon as possible, but no more
than 45 minutes after malfunction or disability of the remote system.
    (m) Mechanical bypass and override capability of the remote
operation system shall be provided and maintained at all times.

    Dated: July 6, 2011.
James B. McPherson,
Captain, U.S. Coast Guard, Acting Commander, First Coast Guard
District.
[FR Doc. 2011-19322 Filed 7-29-11; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register Volume 77, Number 232 (Monday, December 3, 2012)]
[Notices]
[Pages 71669-71671]
[FR Doc No: 2012-29161]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2012-0278]

Qualification of Drivers; Exemption Applications; Vision

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

ACTION: Notice of final disposition.

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SUMMARY: FMCSA announces its decision to exempt 5 individuals from the
vision requirement in the Federal Motor Carrier Safety Regulations
(FMCSRs). They are unable to meet the vision requirement in one eye for
various reasons. The exemptions will enable these individuals to
operate commercial motor vehicles (CMVs) in interstate commerce without
meeting the prescribed vision requirement in one eye. The Agency has
concluded that granting these exemptions 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: The exemptions are effective December 3, 2012. The exemptions
expire on December 3, 2014.

FOR FURTHER INFORMATION CONTACT: Elaine M. Papp, Chief, Medical
Programs Division,<PHONE_NUMBER><EMAIL_ADDRESS>FMCSA,
Department of Transportation, 1200 New Jersey Avenue SE., Room W64-224,
Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m.
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    You may see all the comments online through the Federal Document
Management System (FDMS) at http://www.regulations.gov.
    Docket: For access to the docket to read background documents or
comments, go to http://www.regulations.gov at any time or Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The FDMS is available 24 hours each day, 365
days each year. If you want acknowledgement 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 FDMS published in
the Federal Register on January 17, 2008 (73 FR 3316), or you may visit
http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

Background

    On September 26, 2012, FMCSA published a notice of receipt of
exemption applications from certain individuals, and requested comments
from the public (77 FR 59248). That notice listed 5 applicants' case
histories. The 5 individuals applied for

exemptions from the vision requirement in 49 CFR 391.41(b)(10), for
drivers who operate CMVs in interstate commerce.
    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption
for a 2-year period if it finds ``such exemption would likely achieve a
level of safety that is equivalent to or greater than the level that
would be achieved absent such exemption.'' The statute also allows the
Agency to renew exemptions at the end of the 2-year period.
Accordingly, FMCSA has evaluated the 5 applications on their merits and
made a determination to grant exemptions to each of them.

Vision and Driving Experience of the Applicants

    The vision requirement in the FMCSRs provides:
    A person is physically qualified to drive a commercial motor
vehicle if that person has distant visual acuity of at least 20/40
(Snellen) in each eye without corrective lenses or visual acuity
separately corrected to 20/40 (Snellen) or better with corrective
lenses, distant binocular acuity of a least 20/40 (Snellen) in both
eyes with or without corrective lenses, field of vision of at least
70[deg] in the horizontal meridian in each eye, and the ability to
recognize the colors of traffic signals and devices showing requirement
red, green, and amber (49 CFR 391.41(b)(10)).
    FMCSA recognizes that some drivers do not meet the vision
requirement but have adapted their driving to accommodate their vision
limitation and demonstrated their ability to drive safely. The 5
exemption applicants listed in this notice are in this category. They
are unable to meet the vision requirement in one eye for various
reasons, including amblyopia, ruptured eye, scarring, retinal damage,
and loss of vision. In most cases, their eye conditions were not
recently developed. Three of the applicants were either born with their
vision impairments or have had them since childhood.
    The two individuals that sustained their vision conditions as
adults have had it for a period of 21 to 28 years.
    Although each applicant has one eye which does not meet the vision
requirement in 49 CFR 391.41(b)(10), each has at least 20/40 corrected
vision in the other eye, and in a doctor's opinion, has sufficient
vision to perform all the tasks necessary to operate a CMV. Doctors'
opinions are supported by the applicants' possession of valid
commercial driver's licenses (CDLs) or non-CDLs to operate CMVs. Before
issuing CDLs, States subject drivers to knowledge and skills tests
designed to evaluate their qualifications to operate a CMV.
    All of these applicants satisfied the testing requirements for
their State of residence. By meeting State licensing requirements, the
applicants demonstrated their ability to operate a CMV, with their
limited vision, to the satisfaction of the State.
    While possessing a valid CDL or non-CDL, these 5 drivers have been
authorized to drive a CMV in intrastate commerce, even though their
vision disqualified them from driving in interstate commerce. They have
driven CMVs with their limited vision for careers ranging from 4 to 37
years. In the past 3 years, none of the drivers were involved in
crashes but two were convicted of moving violations in a CMV.
    The qualifications, experience, and medical condition of each
applicant were stated and discussed in detail in the September 26, 2012
notice (77 FR 59248).

Basis for Exemption Determination

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption
from the vision requirement in 49 CFR 391.41(b)(10) if the exemption is
likely to achieve an equivalent or greater level of safety than would
be achieved without the exemption. Without the exemption, applicants
will continue to be restricted to intrastate driving. With the
exemption, applicants can drive in interstate commerce. Thus, our
analysis focuses on whether an equal or greater level of safety is
likely to be achieved by permitting each of these drivers to drive in
interstate commerce as opposed to restricting him or her to driving in
intrastate commerce.
    To evaluate the effect of these exemptions on safety, FMCSA
considered the medical reports about the applicants' vision as well as
their driving records and experience with the vision deficiency.
    To qualify for an exemption from the vision requirement, FMCSA
requires a person to present verifiable evidence that he/she has driven
a commercial vehicle safely with the vision deficiency for the past 3
years. Recent driving performance is especially important in evaluating
future safety, according to several research studies designed to
correlate past and future driving performance. Results of these studies
support the principle that the best predictor of future performance by
a driver is his/her past record of crashes and traffic violations.
Copies of the studies may be found at Docket Number FMCSA-1998-3637.
    We believe we can properly apply the principle to monocular
drivers, because data from the Federal Highway Administration's (FHWA)
former waiver study program clearly demonstrate the driving performance
of experienced monocular drivers in the program is better than that of
all CMV drivers collectively (See 61 FR 13338, 13345, March 26, 1996).
The fact that experienced monocular drivers demonstrated safe driving
records in the waiver program supports a conclusion that other
monocular drivers, meeting the same qualifying conditions as those
required by the waiver program, are also likely to have adapted to
their vision deficiency and will continue to operate safely.
    The first major research correlating past and future performance
was done in England by Greenwood and Yule in 1920. Subsequent studies,
building on that model, concluded that crash rates for the same
individual exposed to certain risks for two different time periods vary
only slightly (See Bates and Neyman, University of California
Publications in Statistics, April 1952). Other studies demonstrated
theories of predicting crash proneness from crash history coupled with
other factors. These factors--such as age, sex, geographic location,
mileage driven and conviction history--are used every day by insurance
companies and motor vehicle bureaus to predict the probability of an
individual experiencing future crashes (See Weber, Donald C.,
``Accident Rate Potential: An Application of Multiple Regression
Analysis of a Poisson Process,'' Journal of American Statistical
Association, June 1971). A 1964 California Driver Record Study prepared
by the California Department of Motor Vehicles concluded that the best
overall crash predictor for both concurrent and nonconcurrent events is
the number of single convictions. This study used 3 consecutive years
of data, comparing the experiences of drivers in the first 2 years with
their experiences in the final year.
    Applying principles from these studies to the past 3-year record of
the 5 applicants, none of the drivers were involved in crashes but two
were convicted of moving violations in a CMV. All the applicants
achieved a record of safety while driving with their vision impairment,
demonstrating the likelihood that they have adapted their driving
skills to accommodate their condition. As the applicants' ample driving
histories with their vision deficiencies are good predictors of future
performance, FMCSA concludes their ability to drive safely can be
projected into the future.

    We believe that the applicants' intrastate driving experience and
history provide an adequate basis for predicting their ability to drive
safely in interstate commerce. Intrastate driving, like interstate
operations, involves substantial driving on highways on the interstate
system and on other roads built to interstate standards. Moreover,
driving in congested urban areas exposes the driver to more pedestrian
and vehicular traffic than exists on interstate highways. Faster
reaction to traffic and traffic signals is generally required because
distances between them are more compact. These conditions tax visual
capacity and driver response just as intensely as interstate driving
conditions. The veteran drivers in this proceeding have operated CMVs
safely under those conditions for at least 3 years, most for much
longer. Their experience and driving records lead us to believe that
each applicant is capable of operating in interstate commerce as safely
as he/she has been performing in intrastate commerce. Consequently,
FMCSA finds that exempting these applicants from the vision requirement
in 49 CFR 391.41(b)(10) is likely to achieve a level of safety equal to
that existing without the exemption. For this reason, the Agency is
granting the exemptions for the 2-year period allowed by 49 U.S.C.
31136(e) and 31315 to the 5 applicants listed in the notice of
September 26, 2012 (77 FR 59248).
    We recognize that the vision of an applicant may change and affect
his/her ability to operate a CMV as safely as in the past. As a
condition of the exemption, therefore, FMCSA will impose requirements
on the 5 individuals consistent with the grandfathering provisions
applied to drivers who participated in the Agency's vision waiver
program.
    Those requirements are found at 49 CFR 391.64(b) and include the
following: (1) That each individual be physically examined every year
(a) by an ophthalmologist or optometrist who attests that the vision in
the better eye continues to meet the requirement in 49 CFR
391.41(b)(10) and (b) by a medical examiner who attests that the
individual is otherwise physically qualified under 49 CFR 391.41; (2)
that each individual provide a copy of the ophthalmologist's or
optometrist's report to the medical examiner at the time of the annual
medical examination; and (3) 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 have a
copy of the certification when driving, for presentation to a duly
authorized Federal, State, or local enforcement official.

Discussion of Comments

    FMCSA received no comments in this proceeding.

Conclusion

    Based upon its evaluation of the 5 exemption applications, FMCSA
exempts James R. Atherton (IN), Jose S. Chavez (AZ), Christopher K.
Foot (NV), Patrick J. McMillen (WI), and Gary B. Shipler (WA) from the
vision requirement in 49 CFR 391.41(b)(10), subject to the requirements
cited above (49 CFR 391.64(b)).
    In accordance with 49 U.S.C. 31136(e) and 31315, each exemption
will be valid for 2 years unless revoked earlier by FMCSA. The
exemption will be revoked if: (1) The person fails to comply with the
terms and conditions of the exemption; (2) the exemption has resulted
in a lower level of safety than was maintained before it was granted;
or (3) continuation of the exemption would not be consistent with the
goals and objectives of 49 U.S.C. 31136 and 31315.
    If the exemption is still effective at the end of the 2-year
period, the person may apply to FMCSA for a renewal under procedures in
effect at that time.

    Issued on: November 23, 2012.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2012-29161 Filed 11-30-12; 8:45 am]
BILLING CODE 4910-EX-P